Lecture 8b: Obscenity, Indecency and Pornography cont

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Lecture 8bObscenity, Indecencyand Pornography
(cont)

• COM 451
• Communication and Law

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I. Miller Test

• Obscenity is determined by the Miller Test
• 1. An average person
• applying contemporary local community standards
• finds that the work, taken as a whole
• appeals to prurient interests.
• 2. The work depicts in a
• patently offensive way
• sexual conduct, specifically defined by
  applicable state law.
  
• 3. The work in question lacks
• S erious
• L iterary,
• A rtistic,
• P olitical, or
• S cientific value

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I. Average Person

• A normal adult
• not the highly sensitive or the callous, the
  educated or the uneducated.
  
• Minors not included in average person
• Sexual materials not obscene to adults can be
  prohibited for children.
  
• BUT serious literature and objects of art that
  contain only nudity or sexual information are not
  obscene to children any more than they are to
  adults.

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I. Prurient Interests

• Def. of prurient obsessively interested in
  matters of a sexual nature arousing o appealing
  to an obsessive interest in sex.
  
• So, it is not enough that the material elicits
  normal, healthy or lustful thoughts. To be
  obscene, the material must appeal to lascivious
  (expressing lust or lewdness), shameful or morbid
  interest in sex

I. Patently offensive

• The material must have an excess of sexual
  detail it must be of a repetitive nature.

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I. Not Obscene

• Mere nudity is not obscene because it is not
  patently offensive.
  
• Use of four-letter words is not obscene, because
  they are not sexually arousing (does not appeal
  to the prurient interests).

I. Exploitation of Children

• A state may prohibit the distribution of pictures
  and films in which children under 16 perform
  sexual acts.
  
• Distributors may be punished even if didnt
  produce materials because the distribution of
  child pornography is intrinsically related to
  the sexual abuse of children.

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II. Indecency

• 1934 Communications Act forbid the use of
  "obscene, indecent or profane language."
  
• 1948 That ban was moved to the general criminal
  code 18 U.S.C. Sec. 1464
  
• "Whoever utters any obscene, indecent, or profane
  language by means of radio communication shall be
  fined not more than 10,000 or imprisoned not
  more than 2 years or both."
• 1964 Pacific Station broadcast license was up
  for renewal
  
• five programs generate complaints
• some involved homosexual references and content
• Commission was not concerned with individual
  programs but with patterns of programming
  
• FCC ruled that if such programs were taken off
  the air, it would mean only "bland, inoffensive
  programming"
  
• 1970 Eastern-Educational Radio (WUHY-FM)
• Interview with Jerry Garcia of the Grateful Dead.
  
  
• He used "colorful" language (including fk)
• The college radio station was fined 100, and
  paid the fine.

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II. Indecency (cont), Sonderling Broadcasting
(1973)

• Topless Radio WGLD of Oak Park, Ill. had a
  radio show called Femme Forum in which women
  would call in and describe their sexual fantasies
  or activities on the air.
• In one particular case the station was fined
  2,000 for discussions about oral sex practices
  during daytime hours.
  
• The FCC was not saying that the discussion of sex
  per se is forbidden, but that the radio station
  wasnt dealing with works of art in this case.
  Rather leering Innuendo was the term used by
  the FCC to describe the content.
• Children and unsuspecting listeners needed to be
  protected.
  
• Standards were made very clear Broadcasters
  SHOULD STAY CLEAR of the obscene and indecent.
  
• Sonderling denied liability, but paid the fine.

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II. Indecency, FCC v. Pacifica Foundation (1973)

• October 30, 1973 One of the most important
  occurrences over the debate on indecent
  programming
  
• A complaint was filed and a fine was levied
  against Pacific Foundation following the playing
  George Carlins Filthy Words monologue on
  WBAI-FM in New York City. The 12 minute recording
  had a variety of colloquial uses of words you
  couldnt say on the public airwaves. The seven
  words were used 106 times.
• The recording was played at 200 PM as part of a
  program on society's attitude toward language.
  Before playing the monologue the announcer warned
  listeners that it might be offensive to some.
• A few weeks later a man, who stated that he had
  accidentally heard the broadcast while driving
  with his young son, wrote a letter complaining to
  the Commission. He stated that, although he could
  perhaps understand the records being sold for
  private use, I certainly cannot understand the
  broadcast of same over the air that, supposedly,
  you control.

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II. Indecency, FCC v. Pacifica Foundation (1973)
(cont)

• The Commission ruled PACIFICA was in ERROR
  because broadcasting requires special treatment
  under four important considerations
  
• 1.Children have access to radios and in many
  cases are unsupervised by parents
  
• 2.Radio receivers are in the home, a place where
  people's privacy interest is entitled to extra
  deference
  
• 3.Unconsenting adults may tune in a station
  without any warning that offensive language is
  being or will be broadcast and
  
• 4.There is a scarcity of spectrum space, the use
  of which the government must therefore license in
  the public interest.
  
• The Commission's ruling differentiated between
  indecency and obscenity.

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II. Indecency, FCC v. Pacifica Foundation (1973)
(cont)

• Pacifica appealed the order to the District of
  Columbia Circuit Court of Appeals and won a
  reversal. The FCC then appealed to the U.S.
  Supreme Court in 1978 where the original order
  was upheld. The high court said the FCC was
  justified, the words were patently offensive and
  indecent, and in violation of 81 U.S.C. Section
  1464, thus bringing to an end a five year battle
  and forever inscribing the seven filthy words
  into the official, recorded, legal history of the
  U.S.
• But by the time this case occurred, the national
  tide had been turning. Starting in 1987 the FCC
  began to crack down on indecency and started to
  enforce a strict 24-hour ban on indecency under
  orders from Congress. Until this time the
  industry assumed that there was a safe harbor
  time between 1000 PM and 600 AM. There was no
  actual written FCC policy.

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II. Indecency (cont)

• 1987 Pacifica Foundation, re "The Jerker"
• KPFK aired a play, The Jerker which was about
  two homosexuals discussing their sexual
  fantasies. The program was aired after 1000 PM
  following a warning from the station to its
  listeners. Yet, another citizen in his car, heard
  the play and filed a complaint with the FCC. The
  station was fined.
• The FCC cited the Regents of the University of
  California for the college station at UC Santa
  Barbara (KCSB-FM) for playing the song Makini
  Bacon by an obscure British punk rock group
  called The Pork Dudes. The song had offensive
  references to sexual organs.

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II. Indecency (cont), Howard Stern Show

• The Howard Stern Show and the entire shock jock
  movement in radio was drawing major attention.
  WYSP-FM in Philadelphia was fined for the first
  time for comments made by Howard during his
  morning drive-time show.
• That year Sterns show moved from 13 to 6 in
  the ratings. Congress and the FCC were swamped
  with complaints bringing back the old dilemma
  How do you deal with Content regulation without
  butting in on the First Amendment?
• The FCC released a policy statement which said
• that indecent material (as defined by the Miller
  Test but with a national NOT community standard)
  may not be broadcast when there is reasonable
  expectation that children may be in the audience.
  Indecency would be actionable if it was
  established that children were in the audience.
• As a result, the FCC officially instituted a
  "safe harbor" which was 1000 PM until 600 AM.
  (Some stations followed a 1200 midnight to 600
  AM "safe harbor" policy.)

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II. Indecency (cont)

• July 1988, U.S. Court of Appeals Reversed the new
  FCC policy It said the FCC hadn't offered
  adequate evidence for this channeling
  approach.
• August, 1988 Congress Adopted the Helms law
  which mandated 24 hour enforcement of indecency
  regulations.Senator Jesse Helms asked What kind
  of sense is to rule something is indecent then
  come the stroke of midnight, bong, bong, bong--it
  is OK?
• The law was immediately stayed (effectiveness
  stopped) by the Court of Appeals on grounds that
  it...
  
• violated the First Amendment
• chills broadcaster's speech
• The FCC asked the Court to remand (send back) the
  issue to the FCC so it could issue an a ruling.
  The FCC came out with a new "safe-harbor" time
  from 800 PM to 600 AM.

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II. Indecency (cont)

• This was a big break for TV stations because some
  of them had indecency fines levied against them
  from the later safe harbor. The new safe
  harbor starting at 800 PM meant that prime time
  was opened up for hard R-rated movies.
• The result was...
• 51 complaints against stations for showing
  indecent films were dismissed.
  
• One of the cases dropped was against KZKG (TV) in
  Kansas City which had originally been fined
  2,000 for showing the R movie, "Private Lessons"
  at 800 PM the commission considered 800 PM
  cutoff reasonable.
• Dennis Patrick was then chair of the FCC, but he
  was then replaced by an Albert Sikes who made it
  clear that he had no stomach for indecency. He
  shocked the industry just weeks after taking
  office when he levied fines against three radio
  stations.

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III. Music Lyrics

• In addition to targeting certain DJs, the FCC
  also began to focus in on the airing of certain
  indecent songs.
  
• WLLZ-FM Detroit. Fined 2000 for "Walk with an
  Erection"
  
• WIOD-AM Miami. Fined 10,000 for five songs Jet
  Boy, Jet Girl, Penis Envy, Candy Wrapper, Butch
  Beer Commercial and Walk with an Erection
  
• KLUCK-FM Detroit. Erotic City by Prince
• Letters of inquiry were sent to four others.

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IV. FCC issues NOI

• October 1989 The FCC issued an NOI (notice of
  intent) to have a 24-hour ban on indecency in
  broadcasting. This action was designed to produce
  a record that would meet the courts procedural
  requirements. The NOI questionnaire asked for
  comments on the following
• The pervasiveness and accessibility of broadcast
  media in children's lives
  
• Viewing and listening habits of children
• Comments on possible alternatives to the 24-hour
  ban
  
• Comments on relying on parental supervision
• Pre-broadcast announcements
• Broadcast technologies that could restrict
  children's access to indecent programs
  
• Whether indecent material might be made available
  to adults via non-broadcast means.
  
• After evaluating responses, the FCC issued
  another safe harbor restricting indecency to
  the time period between 1000 PM and 600 AM. The
  ruling was immediately appealed by opponents.
• Jan 7, 1996, the Supreme Court UPHELD the FCC's
  1000 PM to 600 AM safe harbor for indecency
  reasons.

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V. Howard Stern-the focus of many complaints

• As a result of numerous complaints, Infinity
  Broadcasting, Howard Sterns employer and the
  syndicator of his program, had been fined a total
  of 1.7 million dollars by 1995, including the
  the largest single fine ever--600,000. Infinity
  initially refused to pay the fines, but when the
  company wanted to purchase more radio stations,
  the indecency fines were a potential problem.
• In October, 1995, the FCC worked a deal with
  Infinity by which the company would make a
  voluntary contribution to the US Treasury in
  two installments and the FCC would wipe the slate
  clean of all indecency charges. The purchase of
  radio stations went through.
• But that wasnt the end of the indecency problems
  associated with Howard Stern. Two programs, one
  on Oct 23, 1995 and another on June 3, 1996
  generated a 10,000 fine against a Richmond, VA
  station. The 5,000 per incident is considered an
  appropriate fine (levied in Oct., 1996) as a
  first offense since the 1995 deal with the FCC
  wiped the slate clean. There is question about
  whether other Stern affiliates carried the
  comments in question since some of them use
  delay-technology.

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V. Howard Stern (cont)

• What made all of this so controversial was that
  while Stern's material is offensive to many
  people, he has an enormous following. His show
  has often been the top-rated radio program in
  cities from coast to coast.
• However, Sterns show has also been a slow sell
  in some parts of the country. Many markets are
  resisted putting him on in the morning, when
  children might be in the audience. As of 1997
  Atlanta, Seattle and Houston were all Sternless
  markets.
• In the fall of 1997, Stern and company ran into
  trouble with Canadian authorities. The Canadian
  Broadcast Standards Council (SBSC) monitored the
  show in Canada for two weeks and found that The
  Howard Stern Show breached a number Canadian
  broadcast standards every single day it was
  monitored. In an 86 page report, the council
  criticized the program for several discriminatory
  remarks against French Canadians as well as other
  group and found sexist and sexual remarks were
  unsuitable for children. The council found the
  program "breached the provision of the industry's
  Code of Ethics and Sex-Role Portrayal Code."

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V. Howard Stern (cont)

• The program had generated more than 1,100
  complaints in the three months after its premier
  on September 2, 1997. The complaints and the
  negative report could lead to the programs
  cancellation on the two stations in Montreal and
  Toronto.
• In 1998, Sterns radio show attracted more
  trouble. In July, 1998, a New York state
  appellate court reinstated the emotional distress
  claim against Stern. The claim stemmed from a
  1995 radio broadcast in which Stern crudely
  discussed and handled the cremated remains of a
  dead woman. The family had learned of the plan to
  take the remains to Stern's studio before the
  broadcast and they specifically asked that he not
  use them in his radio program. While a lower
  court had dismissed the suit, the appellate court
  reinstated it, saying that a jury might well
  conclude that Stern's behavior went beyond the
  bounds of decent behavior.

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V. Others as well

• In October 1997, the FCC fined an East Lansing
  Michigan Station 8,000 for a "patently
  offensive" broadcast.
  
• In 1998 WXTB-FM was fined 4,000 dollars for
  remarks made by their air personality, Bubba,
  the Love Sponge. The station was fined even
  though the program aired in morning drive time,
  well outside the FCC's 1000 PM to 600 AM safe
  harbor for indecency.
• March, 1997 Supreme Court UPHELD portion of the
  Telecommunications Act which mandate Cable
  Companies SCRAMBLE audio and video of "sexually
  explicit" programming channels so that
  non-subscribers can not receive them. The legal
  challenge had been brought by the Playboy Channel
  and the Spice Channel.

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V. However

• In the past several years, the FCC hasn't been
  particularly enthusiastic about enforcing
  indecency regulations. In fact, in April 2001,
  Commissioner Gloria Tristani released a press
  statement concerning the Commissions disposition
  of two enforcement complaints.
• Commissioner Tristani believed the Commission
  didn't even try to get the information necessary
  to pursue the complaints. She wrote
  
• But, once again, the FCC dismissed complaints
  without seeking the information needed to answer
  the factual questions and construed the facts
  alleged in the complaints in the light most
  favorable to the broadcaster rather than the
  complainant. This conflicts with well-settled
  principles of civil law. (Tristani, 2001)