Is Media Deceny Unconstitutional?

By Maurine Proctor

Two recent developments bring into question what the Founders intended when they penned the First Amendment’s clause regarding free speech. For example, did they intend for your 13-year old to be able to receive sexually explicit texts or for an unsuspecting viewer of network television to be surprised with profanity or a so-called “wardrobe malfunction”?

The first development is from a three-judge panel of the Second U.S. Circuit Court of Appeals in New York that ruled the Federal Communications Commission’s indecency policies violate the First Amendment and are “unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here.”

This ruling is in response to the push from the Bush-era FCC to clamp down on broadcast profanities and racy programming that saw indecency fines increase exponentially. The most famous of which was the $500,000 fine against CBS for Janet Jackson’s “wardrobe malfunction” during the 2004 Super Bowl in which she briefly exposed one of her breasts on live television.

The panel of judges ruled in this case that the FCC’s decision to sanction broadcasters’ airing of “fleeting” expletives is unconstitutional, and suggested the FCC’s broader indecency enforcement efforts are unconstitutional as well. These judges have in essence reauthorized the broadcast networks unbridled use of the ‘f-word’ at any time of the day. This ruling flies in the face of the April 2009 ruling from the U.S. Supreme Court which upheld the FCC’s authority to enforce “fleeting” expletives. So, all this raises the question, who is going to protect the average television viewer which is more often than not, children?

Parents Television Council president, Tim Winter has said, “The broadcast decency law, which our nation’s Highest Court has upheld, is clear: broadcasters must refrain from violating community standards of decency during hours when children are likely to be in the audience. The indecency law doesn’t prohibit broadcasters from airing indecent material; it only requires that indecent material air outside the hours when children are likely to be in the audience.”

Take Action:
Encourage the FCC to Appeal Decision

Make your voices heard by encouraging the FCC to appeal this decision. You can reach them by calling 1-888-225-5322 or by emailing the chairman at [email protected]

Protecting Children Infringes on Rights of Adults?

The ACLU, the Association of American Publishers and other Internet content providers filed a federal lawsuit challenging Massachusetts’ law that prohibits sexually explicit electronic communications (instant messages, texts, and emails) from going to minors. Penalties include up to five years in prison or a fine as much as $10,000 for a first offense.

Although the intent of the law is to protect children from online predators, the ACLU, et all, are claiming that this effectively bans materials that adults have a First Amendment right to view such as information about contraception, pregnancy, sexual health, literature and art because it’s “impossible to ensure that the communication will not be read or seen by a minor”. Using this logic, one could argue that the law prohibiting the sale of alcohol or cigarettes to minors infringes on the rights of adults because it’s impossible to ensure minors won’t gain access to them.

However the larger issue here is that there are limits to speech when it comes to protecting children. It’s a mistake in both cases to assume that free speech was intended to be administered without any restraint. There are community standards that must be upheld and children that must be protected. Certainly the Founding Fathers would have respected that.

The Moral Lib­eral Con­tribut­ing Edi­tor, Mau­rine Proc­tor, is a grad­u­ate of Har­vard Uni­ver­sity, Co-Founder and Edi­tor in Chief of Merid­ian Mag­a­zine, and Pres­i­dent of Fam­ily Leader Foun­da­tion. She has writ­ten and edited sev­eral books, worked for The Chicago Sun-Times and is an award-winning doc­u­men­tary writer and producer.

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