Shielding Children from Indecency

Article excerpt

Byline: Bruce Fein, SPECIAL TO THE WASHINGTON TIMES

Indecent broadcasting coarsens. The indecency warps sexual attitudes and behaviors of impressionable youths unless healthy parental guidance and example arrest the process. The emotional and psychological traumas and preoccupations of adolescents exposed to sex will eclipse scholastic pursuits. Their adult sex lives may be twisted and dysfunctional. Thus, the U.S. Supreme Court concluded in Pacifica Foundation v. FCC (1978) that indecent broadcasting could be banned from the airwaves when children were likely to part of the audience. Writing for a plurality, Justice John Paul Stevens acknowledged the compelling government interest in the "well-being of its youth."

Since Pacifica Foundation, public concern over indecency has spread from broadcasting to cable and satellite TV. Video over the Internet is around the corner. At present, the First Amendment's protection of free speech has deterred or thwarted efforts to regulate indecency in the nonbroadcast media. The Supreme Court declared in Preferred Communications v. City of Los Angeles (1986), for example, that cable operators enjoy free speech rights superior to broadcasters and akin to the print media: "Cable television partakes of some aspects of speech and the communication of ideas as do traditional enterprises of newspaper and book publishers, public speakers, and pamphleteers."

Congress, nevertheless, is flirting with extending the broadcast indecency ban to nonbroadcasters. The objective is commendable, but a statutory approach is misplaced. The superior solution is to give parents greater control of what their children watch, an initiative recently undertaken by the National Cable Television Association (NCTA).

A legal ban on nonbroadcast indecency is fraught with difficulty. By ambiguity, the indecency definition chills untroublesome speech, like realistic expletives in "Saving Private Ryan." According to the Federal Communications Commission, indecency includes language or material that depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.

The patently offensive determination pivots on the average broadcast viewer nationwide, not on the fastidious sensibilities of a Miss Manners or the vulgarity of Penthouse's Larry Flynt. Five commissioners in Washington, D.C., however, have but the faintest idea of what passes for patent offensiveness outside their own parochial experiences. They make indecency rulings more by visceral reaction and political calculation than by evenhanded and predictable standards. The commission's wildly inexact definition smacks of Supreme Court Justice Potter Stewart's befuddlement in seeking to define obscenity in Jacobellis v. Ohio (1964): "I know it when I see it."

That definitional elusiveness invites discriminatory enforcement by the commission to retaliate against political opponents or adversaries. …