Avoiding Slim Reasoning and Shady Results: A Proposal for Indecency and Obscenity Regulation in Radio and Broadcast Television

I. INTRODUCTION A. The Citadel Case B. The Road Ahead II. THE CONSTITUTION, OBSCENITY, AND INDECENCY A. The Constitution B. Obscenity C. Indecency 1. Federal Communications Commission v. Pacifica Foundation 2. Sable Communications of California, Inc. v. Federal Communications Commission 3. The Commission's Guidance a. Statutory Basis/Judicial History b. Indecency Determinations: Case Comparisons i. Explicitness/Graphic Description versus Indirectness/Implication ii. Dwelling Repetition versus Fleeting Reference iii. Presented in a Pandering or Titillating Manner or for Shock Value c. Enforcement Process d. Conclusion 4. The Separate Statement of Commissioner Susan Ness a. Recommended Procedural Improvements b. Broadcasters Are Part of a National Community 5. The Separate Statement of Commissioner Harold W. Furchtgott-Roth 6. The Dissenting Statement of Commissioner Gloria Tristani III. ANALYSIS A. The Commission and Indecency 1. Procedural Concerns 2. The Subjective Nature of Indecency Regulation a. The First Prong b. The Second Prong c. "For the Broadcast Medium" d. The Three Non-exclusive Factors e. The Citadel Case f. The Sarah Jones Case B. The Commission and Obscenity IV. PROPOSAL V. CONCLUSION I. INTRODUCTION A. The Citadel Case On June 1, 2001, the Federal Communications Commission ("FCC" or Commission") released a Notice of Apparent Liability ("NAL") written by Enforcement Bureau Chief David Solomon which fined the Citadel Broadcasting Co. and KKMG-FM of Pueblo, Colorado, $7000 for "willfully broadcasting indecent language" (1) in violation of federal law. (2) The indecent material consisted of lyrics from the controversial rapper Marshall Mathers, known as Eminem, from his single, "The Real Slim Shady." (3) The station claimed that the version of the song they aired was a radio-edited version, which they rendered decent through the use of muting devices and sound effects. (4) The FCC ruled, however, that even with editing, the single was indecent, (5) and further that the attempt to edit the song did not even warrant a reduction in the fine. (6) Rather than simply pay the fine, Citadel challenged the NAL. (7) This led to a January 8, 2002, opinion, again authored by FCC Enforcement Bureau Chief David Solomon, declaring that the radio-edited version of the song was not indecent and revoking the fine. (8) The Commission reversed its decision despite the introduction of no new facts in the case. (9) The new opinion made mention of the prior NAL only to say that it was rescinded and did nothing to explain why such a reversal was warranted. (10) It is within this context of administrative half-truth and constitutional gray area that judges and attorneys have been playing their roles for years. As the Citadel cases prove, what is or is not indecent is hardly clear. But a larger issue looms: If the government is so ill-equipped to answer the required questions, why do we keep letting them decide? B. The Road Ahead This Note will explore the relevant law regarding the issue of indecency and obscenity, with particular focus on a 2001 Policy Statement released by the FCC. It will continue by examining the major problems with the regulatory scheme as it now exists, and offer an alternative. Finally, this Note argues that leaving the subjective decisions regarding indecency to market forces, leaving parents to determine what should or should not be indecent, and leaving the FCC free to pursue obscenity with greater zeal is the most appropriate course of action for the future. …