Regulating media content

The First Amendment to the United States Constitution declares that “Congress shall make no law … abridging the freedom of speech, or of the press.” But Congress and state legislatures have attempted to curtail speech that it regards as indecent, obscene, harmful to minors or injurious to children (such as child pornography). Indeed, legislation seeking to regulate media content is common, particularly in an election year. This article reviews the legal standards governing various types of content, and outlines the major pieces of legislation seeking to regulate them.

Introduction
In the United States, the regulation of content differs dramatically by the medium of expression. Traditionally, print publications have enjoyed the highest degree of First Amendment protections. Television and radio broadcasters have enjoyed the least degree of protection. Historically, they were required to abide by the Fairness Doctrine of the Federal Communications Commission, which required broadcasters to grant reply time to those who said their views were criticized. That rule was killed in 1987. There were two corollaries of the doctrine—the "personal attack" rule and the "political editorial" rule—vestiges of the Fairness Doctrine that survived a while longer and then died in 2000. Another restriction that continues today is the "equal time" law for political candidates. And broadcasters are subject to restrictions barring the transmission of indecent or profane material over the airwaves. None of these rules apply to print publications.

With books, magazines and newspapers on one end of the spectrum, and broadcasting on the other, the emergence of the Internet initially posed a quandary: how would this new medium be regulated? Would indecency, including swear words or nudity, be allowed? What about other forms of speech that are less socially accepted, such as pornography? Depending on the context and subject of the images, sexually explicit depictions can ban deemed "harmful to minors," "obscene," or "child pornography."

Congress has repeatedly attempted to grapple with this problem. Its first effort, the Communications Decency Act of 1996, was struck down as unconstitutional. Its second effort, the Child Online Protection Act of 1998 (COPA), remains in an uncertain legal limbo. A third effort, the Children’s Internet Protection Act of 2000 (CIPA), has been upheld by the Supreme Court. CIPA mandates the use of filtering technologies to keep pornographic content off the screens of computers used by schools and libraries – if those institutions receive federal funds. The use of software filters has been central to the legal debates over both COPA and CIPA.

Indecency
Indecent content is material that contains "sexual or excretory material that does not rise to the level of obscenity" and is "patently offensive." Indecent speech is still protected by the First Amendment, the Supreme Court has held. The high court has allowed indecency to be restricted for certain main: namely, television and radio broadcasts. But the same court has, more recently, refused to allow Congress to proscribe indecent material on the Internet, or on cable television.

FCC v. Pacifica Foundation
The language barring indecency over the airwaves stems from the Radio Act of 1927, establishing the Federal Radio Commission, predecessor to the Federal Communications Commission. The law provided that radio stations grant equal access to time for political candidates and prohibited "obscene, indecent, or profane language." . The language was preserved in the Communications Act of 1934, which established the FCC. The definitive case on indecency law is FCC v. Pacifica Foundation (1978). It centered on George Carlin's monologue, "Filthy Words." Carlin’s 1973 satiric monologue was about seven dirty words that, as he put it, "you couldn't say on the public, ah, airwaves, um, the ones you definitely wouldn't say, ever." Except that the defiant and mischievous Carlin did say them on the radio -- over and over and over again.

In truth, Carlin didn’t "intend" that the monologue be broadcast. He had done his routine in a theatre, and it was pressed into a sound recording. But when the Pacifica radio station in Albany, New York, broadcast the recording, a father heard the monologue in his car along with his young son along for the ride. The father’s complaint to the Federal Communications Commission led to sanctions, and, ultimately, to the the Supreme Court. The recording – and its broadcast – was not obscene, the court said. Yet the pervasiveness of broadcasting, and its easy accessibility to children, and the historical regulation of the airwaves, the court held, justified the FCC's authority to impose indecency limitations.

The Supreme Court upheld the Federal Communications Commission's rule banning indecent and obscene material from being broadcast on television or the radio. The Court found a public interest in preventing via broadcast medium the transmission of questionable material, from 6 a.m. to 10 p.m. The most significant factor in this decision was the "reasonable risk that children will be in the audience". By and large, however, in the years from 1978 to the early part of this decade, FCC enforcement of rules against indecency were limited… until Bono and Janet Jackson.

Janet Jackson and the Super Bowl
It's been more than three years since the infamous "wardrobe malfunction" on the night of February 1, 2004. The CBS television network was airing Super Bowl XXXVIII in Houston, between the New England Patriots and the Carolina Panthers. But everyone remembers it for the half-time show.

Produced by CBS' then-sister company MTV Networks, the show featured a medley of celebrities, including Kid Rock adorned with an American flag cut into a poncho. Dancers writhing to the music repeatedly grabbed their crotches. And then, in the finale, Justin Timberlake ripped the right portion of Janet Jackson's bustier, exposing her right breast to 140 million viewers for 19/32 of a second. The flash of flesh had been so fleeting that many viewers weren't sure of what they had seen until it was confirmed by newspaper, radio and Internet accounts the next day. Others wanted to get a second look. This half-time show instantly became the most-replayed television segment ever on the millions of TiVo digital video recorders.

In August 2004, the FCC fined CBS $550,000 for the incident, then a record. Separately, the FCC settled a number of other indecency violations with CBS for $3.5 million, the highest fine ever. But CBS refused to lump the Super Bowl episode into the settlement, insisting that the incident wasn't "indecent." That posture forced the FCC — now under chairman Kevin Martin — to formally reject that claim, in March 2006. In July 2006, CBS paid the $550,000 fine, but as a procedural matter only. They then turned around and challenged the indecency fine in the 3rd Circuit Court of Appeals in Philadelphia.

Bono and the Golden Globes
The Super Bowl episode accelerated a growing sentiment that the FCC should actively enforce indecency violations with fines. A prior, crystalizing incident occurred during the Golden Globes Awards on January 19, 2003. It was being telecast live and without a taped delay by all of the stations owned or affiliated with corporate parent NBC Universal. The rock star Bono won an award. Accepting it, he declared, "this is really, really, fucking brilliant." The FCC, the regulator of the airwaves, says that it determines whether or not material is "patently offensive" mostly by examining the context. When examining content the FCC looks at "(1) whether the description or depiction is explicit or graphic; (2) whether the material dwells on or repeats at length descriptions or depictions of sexual or excretory organs; and (3) whether the material appears to pander or is used to titillate or shock. No single factor is determinative. The FCC weighs and balances these factors because each case presents its own mix of these, and possibly other, factors."

In the Bono case, FCC Enforcement Bureau Chief David Solomon at first declared, "The word ’fucking’ may be crude and offensive, but, in the context presented here, did not describe sexual or excretory organs or activities." Because the word didn’t describe sexual activities, there was no basis for FCC enforcement of indecency law. "Rather, the performer used the word 'fucking' as an adjective or expletive to emphasize an exclamation. Indeed, in similar circumstances, we have found that offensive language used as an insult rather than as a description of sexual or excretory activity or organs is not within the scope of the Commission’s prohibition of indecent program content."

But the FCC Commissioners weren’t exactly comfortable with that agency decision. And after the Janet Jackson incident, the agency officially reversed Solomon, effectively asserting that profanity was part of the indecency standard. Asked about this in a subsequent interview, then-FCC Chairman Michael Powell said, “If the f-word's not profane, then I don't have any idea what profanity is in America. Presented squarely with a case like that, it became very difficult to say it's not profane, even though I think you could debate whether it's indecent.”

Indecency Allowed on the Internet and Cable Television
Congress attempted to expand indecency regulation to the Internet with the Communications Decency Act of 1996. The law was passed as part of that year’s Telecommunications Act overhaul. It imposed criminal penalties on anyone who: "(A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or (B) uses any interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs."

Upon passage, the ACLU, American Library Association and others challenged the constitutionality of the CDA. The plaintiffs claimed that it violated their constitutionally protected speech (namely speech that is deemed indecent or "patently offensive"). The court struck down what it termed a "blanket restriction on speech" and ruled that, "The Internet is entitled to the full protection given to media such as the print press; the special factors justifying government regulation of broadcast media do not apply." A subsequent high court decision, ‘’U.S. v. Playboy Entertainment Group’’ (2000) extended similar protections to cable television.

Broadcast Decency Enforcement Act
Despite the increasingly incongruity of regulating broadcast television and radio – but not the Internet and cable television – Congress has pressed continued to support a system of increased fines on broadcasters. In 2006, Congress passed the Broadcast Decency Enforcement Act, increasing the maximum fines to "$325,000 for each violation or day of such violation, to a maximum of $3 million for any single act or failure to act."

But on June 4, 2007, a federal appeals court may have permanently damaged the ability of the FCC to collect such fines. In ‘‘Fox v. FCC,’‘ the Second Circuit Court of Appeals held that fines for so called "fleeting expletives" could no longer be collected from companies. "In recent times even the top leaders of our government have used variants of these expletives in a manner that no reasonable person would believe referenced sexual or excretory organs or activities," the court said.

Obscenity and the ‘Harmful to Minors’ Standard
Unlike indecency, which is constitutionally permitted, obscenity is not protected by the First Amendment, according to Supreme Court precedents including ’’Miller v. California’’ (1973). But in practice, the ban on obscenity has little impact because of the difficulty of meeting the high court’s test, because of increasing societal acceptance of pornography, and because the Internet has altered the way the legal is put into practice.

Under the ‘’Miller’’ test,, a jury must decide: (A) Whether the average person would find that the work, taken as a whole and applying contemporary community standards, appeals to the prurient interest; (B) Whether the work depicts or describes sexual conduct in a patently offensive way, when applying contemporary community standards; and (C) Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

After further judicial review, the Supreme Court decided in ''Pope v. Illinois’’ (1987) that the first two prongs of the Miller Test could be used in determining a community standard. The third prong however, was broadened to whether or not "a reasonable person would find such [serious literary, artistic, political, or scientific] value in the material, taken as a whole."

Obscenity may be banned from the public square to preserve "the social interest in order and morality." The courts have recognized the possession of obscene materials in the privacy of ones own home, although they have not recognized the right to acquire or distribute obscenity.

In the Communications Decency Act challenge in ‘’ACLU v. Reno,’’ the issue was the application of indecency law to the Internet. Congress passed a subsequent law, the Child Online Protection Act of 1998 which attempted to proscribe content that is “harmful to minors.” Somewhere in between the standard for “obscenity” and “indecency,” material that is “harmful to minors” is legal for adults, but illegal for children. A commonly given example of statutes applying the “harmful to minor” standard are state laws that require magazine stands to put wrappers over the covers of pornographic magazines so that they are not viewed by children.

COPA was passed as Title XIV in Division C of the FY 1999 Consolidated and Emergency Supplemental Appropriations Act of 1998. It prohibited any communications including: "picture, image, graphic image file, article, writing, or other matter of any kind" that was deemed "harmful to minors" from appearing on a for-profit website, unless the operator of the webpage collected credit card or government identification to restrict access for people 17 years of age an under. COPA crafted its "harmful to minors" definition around the obscenity test provided by ‘’Miller v. California’’, thus applying a community standard on nationally distributed content.

Civil liberties groups responded to the passage of this bill, first getting an preliminary injunction by a district court within the Third Circuit Court of Appeals. In their view, the law’s problems included: "overbreadth, vagueness of definitions of key terms such as 'commercial'"; the fact that it "force adults to give up privacy to exercise their right to read"; "prior restraints on publication"; and finally the use of the "community standards" ostensibly allowing the most conservative U.S. jurisdiction to establish standards of content on a global medium. The Supreme Court ruled, sided on the side of civil liberties groups and upheld the lowers courts ruling, COPA was stricken from the lawbooks. .

On portion of COPA that survived the Supreme Court was the established the Child Online Protection Commission to study the subject. It released it's report on October 2000.

Child Pornography
Child pornography is a visual depiction of children engaged in sexual conduct. Legislators have not offered, nor have the courts found any constitutional right (the First Amendment, the right to privacy, or otherwise) to possess, distribute or manufacture child pornography. Also, content deemed child pornography may be illegal regardless of the Miller Test.

In 1996, the Child Pornography Protection Act (CPPA) was passed. It banned any "visual depictions that appear to be of a minor, even if no minor is actually used." This law was struck down as unconstitutional because it focused on banning "the content" as apposed to "the production." Congress responded by passing the 2003 PROTECT Act, which included the criminalization of a "digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct."

Gaming and virtual worlds
In addition to the regulation content in a purely online setting, Congress has attempted to regulate the content of computer games. As computer games become increasingly limitless "virtual" worlds (eg. massive multi-player online role playing games like Second Life, World of Warcraft, Everquest) - the feasibility of regulating content becomes increasingly difficult while maintaining current constitutional standards.

Among the legislative attempts to restrict video game content:

110th Congress:  

109th Congress:
 * H.R. 6120 [109th : Video Game Decency Act of 2006]
 * H.R. 6113 [109th : Truth in Video Game Rating Act]
 * S. 3935 [109th : Truth in Video Game Rating Act]
 * H.R. 5912 [109th : Truth in Video Game Rating Act]

108th Congress:
 * H.R. 669 [108th : Protect Children from Video Game Sex and Violence Act of 2003]

Deleting Online Predators Act of 2006 (DOPA)
Deleting Online Predators Act of 2006(H.R. 5319) passed the House in the 109th Congress, but the Senate never voted on it. The bill would mandate that schools and libraries receiving funds from the e-rate portion of the Universal Service Fund install filters to prevent minors from accessing "commercial social networking websites" and "chat rooms" at schools and libraries. While this measure does provide a mechanism whereby an adult may disable those filters, however, the broad language of the bill could include almost any webpage on the Internet (such as Amazon, Yahoo, Slashdot, Wikipedia). This measure would grant the FCC the regulatory power to decide which sites were to be blocked.

DOPA has been reintroduced in the 110th Congress:
 * In the Senate by Ted Stevens (R-Alaska) as S.49 - Protecting Children in the 21st Century Act




 * In the House by Mark Kirk (R-Ill.) as H.R.1120 - Deleting Online Predators Act of 2007



AMBER Alert Act of 2003
The Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act of 2003' was passed in the 108th Congress. This bill amended portions of the CDA, substituting "child pornography" for "indecency." The law makes it illegal to "mislead[] a minor via domain name to view content which may be 'harmful to minors.'" It also prohibited any "depiction that is a digital image, computer image, or computer-generated image of, or that is indistinguishable from an image of, a minor engaging in specified sexually explicit conduct" as well as the "pandering" of such material.

Although Child Pornography is not protected speech under the First Amendment, the restriction on the "pandering" of virtual child pornography was found to be constitutionally protected by the Eleventh Circuit Court of Appeals in ‘’United States v. Williams’’ in April 2006.

Family Privacy and Security Act of 2002
The Family Privacy and Security Act of 2002 (S. 2137) was introduced in the 107th Congress, but it never made it out of committee. It required any operator of a webpage whose content is deemed "harmful to minors" to register their webpage with the government and move it's content to a separate domain. The measure also contained provisions for mandatory labeling of e-mails that contained sexual content, as well as attempting to restrict the use of "image recording devices to observe, view, photograph, film, or videotape for lewd or lascivious purposes the image of another, including of those under 18 years of age."

Dot Kids Implementation and Efficiency Act of 2002
The Dot Kids Implementation and Efficiency Act of 2002 (H.R. 3833) became law in the 107th Congress. It provides a .kid.us domain designed, according to the congressional report, as a "haven for material that promotes positive experiences for children and families using the Internet, provides a safe online environment for children, and helps to prevent children from being exposed to harmful material on the Internet, and for other purposes."

Children’s Internet Protection Act of 2000 (CIPA)
The Children’s Internet Protection Act of 2000 (CIPA) was bundled into the Consolidated Appropriations Act of 2001 and passed into law in 2000. It represents the first piece of federal legislation aimed at regulating online content both "indecent" or "harmful to minors" to be upheld by the Supreme Court.

This measure requires that public institutions such as schools and libraries, that use the e-rate portion of the Universal Service Fund to purchase, maintain or operate internet operable computer systems, install blocking software on their systems to prevent minors access to "visual depictions that are obscene, child pornography, or harmful to minors". Adult patrons who verify their age, may get the filtering software disabled for "bona fide research or other lawful purpose."

The constitutionality of CIPA was challenged by the American library Association in the court system. But the Supreme Court upheld the law in a 2003 ruling. .

Related SourceWatch resources

 * See the other articles at the Telecom, Media and Intellectual Property Policy (U.S.) portal.

External resources

 * CRS, Obscenity, Child Pornography, and Indecency: Recent Developments and Pending Issues - Report 98-670, hosted at OpenCRS June 29, 2004.
 * CRS, Internet: Status Report on Legislative Attempts to Protect Children from Unsuitable Material on the Web - RS21328, hosted at OpenCRS July 06, 2004.
 * CRS, Freedom of Speech and Press: Exceptions to the First Amendment - Report 95-815, hosted at OpenCRS April 26, 2007.
 * CRS, Constitutionality of Requiring Sexually Explicit Material on the Internet to be Under a Separate Domain Name - Report RL33224 hosted at OpenCRS January 03, 2006.