Constitutionality of Applying the FCC’s Indecency Restriction to Cable Television
Released: 2008-03-17T00:00:00

Various federal officials have spoken in favor of extending the Federal Communication Commission's indecency restriction, which currently applies to broadcast television and radio, to cable and satellite television. This report examines whether such an extension would violate the First Amendment's guarantee of freedom of speech.

Introduction

The FCC's indecency restriction was enacted pursuant to a federal statute that, insofar as it was found constitutional, requires the FCC to promulgate regulations to prohibit the broadcast of indecent programming from 6 a.m. to 10 p.m. The FCC has found that, for material to be "indecent," it "must describe or depict sexual or excretory organs or activities," and "must be patently offensive as measured by contemporary community standards for the broadcast medium."

Another federal statute makes it a crime to utter "any obscene, indecent, or profane language by means of radio communication." This statute has been applied to pictures as well as words and to broadcast television as well as radio. In Federal Communications Commission v. Pacifica Foundation , the Supreme Court held that the statute does not violate the First Amendment when enforced during hours when children are likely to be in the audience.

The Court in Pacifica explained:

[O]f all forms of communication, it is broadcasting that has received the most limited First Amendment protection. Thus, although other speakers cannot be licensed except under laws that carefully define and narrow official discretion, a broadcaster may be deprived of his license and his forum if the Commission decides that such an action would serve "the public interest, convenience, and necessity." Similarly, although the First Amendment protects newspaper publishers from being required to print the replies of those whom they criticize, Miami Herald Publishing Co. v. Tornillo , 418 U.S. 241, it affords no such protection to broadcasters; on the contrary, they must give free time to the victims of their criticism. Red Lion Broadcasting Co. v. FCC , 395 U.S. 367.

The reasons for these distinctions are complex, but two have relevance to the present case. First, the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder. . . . To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow.

Second, broadcasting is uniquely accessible to children, even those too young to read. . . . Bookstores and motion picture theaters, for example, may be prohibited from making indecent material available to children. We held in Ginsberg v. New York , 390 U.S. 629, that the government's interest in the "well-being of its youth" and in supporting "parents' claim to authority in their own household" justified the regulation of otherwise protected expression. . . .

In sum, the Court held that, because broadcast radio and television have a "uniquely pervasive presence" and are "uniquely accessible to children," the government may, during certain times of day, prohibit "[p]atently offensive, indecent material" on these media, as such material threatens the well-being of minors and their parents' authority in their own household. Since 1978, however, when the Court decided Pacifica , cable television has become more pervasive, thereby rendering broadcast media a less "uniquely pervasive presence." In Denver Area Educational Telecommunications Consortium, Inc. v. Federal Communications Commission , a Supreme Court plurality held that, with respect to "how pervasive and intrusive [television] programming is . . . cable and broadcast television differ little, if at all."

If cable and broadcast television differ little, if at all, then, one might argue, they should be treated alike with regard to indecency restrictions. But does this mean, if one accepts that argument, that cable should be treated like broadcast or that broadcast should be treated like cable? In other words, should cable be made subject to the FCC's indecency restriction, or should broadcast no longer be subject to them? This report will consider these questions from a constitutional standpoint, not from a policy standpoint.

Although one might argue that the fact that broadcast media is no longer uniquely pervasive should render Pacifica invalid, no court has found that to be the case, and the Supreme Court has cited Pacifica with approval in recent years. The FCC's indecency restriction, therefore, appears to remain constitutional as applied to broadcast media. But would it be constitutional to apply the indecency restriction to cable?

Constitutionality of Applying the FCC's Indecency Restriction to Cable Television

In United States v. Playboy Entertainment Group, Inc., the Supreme Court held that a content-based speech restriction on cable television "can stand only if it satisfies strict scrutiny. If a statute regulates speech based on its content, it must be narrowly tailored to promote a compelling Government interest. If a less restrictive alternative would serve the Government's purpose, the legislature must use that alternative. To do otherwise would be to restrict speech without an adequate justification, a course the First Amendment does not permit. . . . It is rare that a regulation restricting speech because of its content will ever be permissible."

The indecency restriction is content-based; therefore, for its application to cable television to be constitutional, it must meet "strict scrutiny," which means that it must promote a compelling governmental interest and be the least restrictive means to do so. This is the same standard that the Supreme Court applies to speech in newspapers, the Internet, and every other medium except broadcast radio and television. The Court does not apply strict scrutiny to broadcast media because, as noted in the above quotation from Pacifica , the Court holds that broadcast media have less First Amendment protection than other media. The Court, therefore, did not apply strict scrutiny in Pacifica , and the fact that in Pacifica it upheld the constitutionality of the indecency restriction as applied to broadcast media does not imply that it would uphold its constitutionality as applied to cable.

Playboy concerned federal restrictions on a type of "indecent" material on cable television: "signal bleed," which refers to images or sounds that come through to non-subscribers, even though cable operators have "used scrambling in the regular course of business, so that only paying customers had access to certain programs." These restrictions, which are found in section 505 of the Communications Decency Act of 1996, require operators of cable channels "primarily dedicated to sexually-oriented programming" to implement more effective scrambling—to fully scramble or otherwise fully block programming so that non-subscribers do not receive it—or to "time channel," which, under an FCC regulation meant to transmit the programming only from 10 p.m. to 6 a.m.

"To comply with the statute," the Court noted, "the majority of cable operators adopted the second, or 'time channeling,' approach. The effect . . . was to eliminate altogether the transmission of the targeted programming outside the safe harbor period [6 a.m. to 10 p.m.] in affected cable service areas. In other words, for two-thirds of the day no household in those service areas could receive the programming, whether or not the household or the viewer wanted to do so." The Court also noted that "[t]he speech in question was not thought by Congress to be so harmful that all channels were subject to restriction. Instead, the statutory disability applies only to channels 'primarily dedicated to sexually-oriented programming.'"

The Court then applied strict scrutiny to section 505. It did not explicitly say that shielding children from sexually oriented signal bleed was a compelling interest, but it would "not discount the possibility that a graphic image could have a negative impact on a young child." This suggests the possibility that, even if shielding young children from seeing graphic images on cable television is a compelling governmental interest, the Court might not find that shielding older children from such images is a compelling governmental interest. In addition, the Court rejected another interest as compelling: "Even upon the assumption that the Government has an interest in substituting itself for informed and empowered parents, its interest is not sufficiently compelling to justify this widespread restriction on speech." In any case, it was not necessary for the Court to make an explicit finding of a compelling governmental interest, because it held the statute unconstitutional for not constituting the least restrictive means to advance any such interest.

The Court noted that there is "a key difference between cable television and the broadcasting media, which is the point on which this case turns: Cable systems have the capacity to block unwanted channels on a household-by-household basis. . . . [T]argeted blocking enables the Government to support parental authority without affecting the First Amendment interests of speakers and willing listeners . . . ." Furthermore, targeted blocking is already required—by section 504 of the Communications Decency Act, which requires cable operators, upon request by a cable service subscriber, to, without charge, fully scramble or otherwise fully block audio and video programming that the subscriber does not wish to receive. "When a plausible, less restrictive alternative is offered to a content-based speech restriction, it is the Government's obligation to prove that the alternative will be ineffective to achieve its goal. The Government has not met that burden here." The Court concluded, therefore, that section 504, with adequate publicity to parents of their rights under it, constituted a less restrictive alternative to section 505.

Applying Strict Scrutiny

We now consider how a court might apply strict scrutiny in determining whether applying the FCC's indecency restriction to cable television would be constitutional. We consider first whether a court would find that applying the restriction to cable television would serve a compelling governmental interest, and then, on the assumption that it would, we consider whether a court would find it the least restrictive means to advance that interest.

Compelling Governmental Interest

When the Court considers the constitutionality of a restriction on speech, it ordinarily—even when the speech that is restricted lacks full First Amendment protection and the Court applies less than strict scrutiny—requires the government to "demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." With respect to restrictions designed to deny minors access to sexually explicit material, by contrast, the courts appear to assume, without requiring evidence, that such material is harmful to minors, or to consider it "obscene as to minors," even if it is not obscene as to adults, and therefore not entitled to First Amendment protection with respect to minors, whether it is harmful to them or not. In Pacifica , as quoted above, the Court implied that making "indecent" material unavailable to children serves their "well-being."

This is not to say with certainty that the Supreme Court would find a compelling governmental interest in denying minors access to "indecent" material. It might, for example, distinguish among different types of "indecent" material, and, even if it found a compelling governmental interest in denying minors access to sexually explicit material, it might find otherwise with respect to four-letter words, in light of the fact that minors generally hear such words elsewhere than on cable television, and in light of the fact that such words may be used as adjectives or expletives, arguably with no sexual or excretory connotation. The Court might also distinguish among minors of different ages, even with respect to access to sexually explicit material. As noted above, in Playboy the Court seemed to leave open the possibility that it might not find a compelling governmental interest in shielding older children from sexually oriented material. In addition, when the Court struck down the portion of the Communications Decency Act of 1996 that prohibited "indecent" material on the Internet, the Court would "neither accept nor reject the Government's submission that the First Amendment does not forbid a blanket prohibition on all 'indecent' and 'patently offensive' messages communicated to a 17-year-old—no matter how much value the message may have and regardless of parental approval. It is at least clear that the strength of the Government's interest in protecting minors is not equally strong throughout the coverage of this broad statute."

The Supreme Court has cited another governmental interest that might be asserted to justify applying the FCC's indecency restriction to cable, but the Court has not stated whether it is "compelling": it is the interest "in supporting 'parents' claim to authority in their own household.'" A dissenting judge has argued that "a law that effectively bans all indecent programming . . . does not facilitate parental supervision. In my view, my right as a parent has been preempted, not facilitated, if I am told that certain programming will be banned from my . . . television. Congress cannot take away my right to decide what my children watch, absent some showing that my children are in fact at risk of harm from exposure to indecent programming."

Perhaps, however, the Supreme Court would take the approach it did in Playboy and focus on the second aspect of strict scrutiny: whether the FCC's indecency restriction is the least restrictive means available to advance the government's interest.

Least Restrictive Means

Assuming for the sake of argument that applying the FCC's indecency restriction to cable television would serve a compelling governmental interest, is there a less restrictive means by which that interest could be served? If so, then applying the FCC's indecency restriction to cable television would be unconstitutional. The Court in Playboy , as quoted above, noted that there is "a key difference between cable television and the broadcasting media, which is the point on which this case turns: Cable systems have the capacity to block unwanted channels on a household-by-household basis. . . . [T]argeted blocking enables the Government to support parental authority without affecting the First Amendment interests of speakers and willing listeners . . . ."

The targeted blocking, however, that the Court in Playboy found to be a less restrictive means to keep signal bleed from viewers who object to it, would not seem as feasible to keep "indecent" material from viewers who object to it. In the case of signal bleed, a viewer could request blocking of channels that he knows to present pornography. By contrast, in order for targeted blocking to keep "indecent" programming from viewers who object to it, viewers would have to know what channels would ever, between 6 a.m. and 10 p.m., allow on any program the utterance of a four-letter word or the exposure of a woman's breast, among other things. For viewers to know this would seem to entail that every channel be required to state whether it will refrain from transmitting "indecent" material on all future programming, and, if a channel stated that it would, to be bound by that statement. This requirement would appear to burden freedom of speech to the extent that it might well violate the First Amendment. It might even be viewed as a prior restraint, and prior restraints are almost always unconstitutional.

To the extent that technology allows viewers to block particular programs as opposed to entire channels, the same First Amendment difficulties would apparently arise. For such blocking to be effective, producers who did not wish to be blocked for transmitting "indecent" programming would have to agree to refrain from ever allowing the utterance of a four-letter word on a program, even if the program ordinarily contained nothing deemed "indecent."

Thus, there may be no less restrictive means that would be constitutional to keep "indecent" material off cable television during certain hours than to apply the FCC's indecency restrictions. This, however, would not necessarily mean that to apply them to cable television would be constitutional. Two federal courts of appeals have written that "[t]he State may not regulate at all if it turns out that even the least restrictive means of regulation is still unreasonable when its limitations on freedom of speech are balanced against the benefits gained from those limitations." The more recent of these cases affirmed a preliminary injunction against the enforcement of the Child Online Protection Act, which banned material that is "harmful to minors" from the Internet. The older case upheld FCC regulations that implemented a statute that restricted minors' access to obscene "dial-a-porn" services.

It appears that a strong case may be made that applying the FCC's indecency restriction to cable television would be "unreasonable" under the above court of appeals' formulation. This is because, as the Supreme Court wrote when it struck down the ban on "indecent" material on the Internet, "the Government may not 'reduc[e] the adult population . . . to . . . only what is fit for children.' '[R]egardless of the strength of the government's interest' in protecting children, '[t]he level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.'"

One might reply that to apply the FCC's indecency restriction to cable would limit the adult population's discourse only from 6 a.m. to 10 p.m. But the fact the Supreme Court in Pacifica upheld such a limitation on broadcast media does not mean that it would uphold it on cable television. In Pacifica , as noted, the Court did not apply strict scrutiny. In Playboy , where the Court did apply strict scrutiny to a speech restriction on cable television, it held the speech restriction unconstitutional, in part because, as quoted above, "for two-thirds of the day no household in those service areas could receive the programming, whether or not the household or the viewer wanted to do so." In addition, the Court struck down the ban in the Communications Decency Act of 1996 on "indecent" material on the Internet, notwithstanding that such material is available to adults in other media. It seems clear that governmental restrictions of fully protected speech, including "indecent" material on cable television, are unconstitutional unless they pass strict scrutiny, even if they do not close all outlets for such speech.

Summary and Conclusion

In 1978, in Pacifica , the Supreme Court held that, because broadcast radio and television have a "uniquely pervasive presence" and are "uniquely accessible to children," the government may, during certain times of day, prohibit "[p]atently offensive, indecent material" on these media. In 1996, however, in Denver Area Consortium, a Supreme Court plurality held that, with respect to "how pervasive and intrusive [television] programming is . . . cable and broadcast television differ little, if at all."

The fact that a plurality of the Court views cable and broadcast television as differing little with respect to their pervasiveness and intrusiveness might suggest that the Court would apply the First Amendment to both media in the same way. The Court, however, continues to cite Pacifica with approval, but, in Playboy , it held that governmental restrictions on cable television are, unlike those on broadcast media, entitled to strict scrutiny. Thus, whereas, in Pacifica , the Court upheld a restriction on "indecent" material on broadcast media without applying strict scrutiny, the Court apparently would not uphold a comparable restriction on "indecent" material on cable television unless the restriction served a compelling governmental interest by the least restrictive means.

It seems uncertain whether the Court would find that denying minors access to "indecent" material on cable television would constitute a compelling governmental interest. Although the Court has held that denying minors access to sexually explicit material constitutes a compelling governmental interest, not all "indecent" material is sexually explicit. In addition, the Court has suggested that it may not view minors of all ages identically for First Amendment purposes.

Assuming for the sake of argument that the Court would find a compelling governmental interest in denying minors access to "indecent" material on cable television, there does not appear to be a less restrictive means than the FCC's restrictions to advance this interest, other than banning "indecent" material for fewer hours per day. The lack of a less restrictive means, however, would not necessarily mean that to apply the FCC's restrictions to cable television would be constitutional. This is because, as two federal courts of appeals have written, "[t]he State may not regulate at all if it turns out that even the least restrictive means of regulation is still unreasonable when its limitations on freedom of speech are balanced against the benefits gained from those limitations." The Supreme Court has not spoken on this proposition, however.

It appears that a strong case may be made that applying the FCC's indecency restriction to cable television would be "unreasonable" under this formulation. This is because, as the Supreme Court wrote when it struck down the ban on "indecent" material in the Internet, "the Government may not 'reduc[e] the adult population . . . to . . . only what is fit for children.'" In Playboy , the Court, applying strict scrutiny, struck down a speech restriction on cable television, in part because "for two-thirds of the day no household in those service areas could receive the programming, whether or not the household or the viewer wanted to do so." Thus, it appears likely that a court would find that to apply the FCC's indecency restriction to cable television would be unconstitutional.