Congress Fights Indecency

Frederick Lane
Nearly 10 years ago, conservative Democrat Jim Exon proposed the Communications Decency Act, which would have made it a felony to transmit indecent materials across the Internet. The U.S. Supreme Court struck down key provisions of the act by a unanimous vote.

Despite the clarity of the court's decision, however, legislators are still taking aim at the Internet, albeit indirectly. A movement is afoot in Washington to draft new legislation that would extend existing indecency penalties from broadcast networks to cable and satellite as well, and some legislators have made it clear that they'd like to do the same thing for the Internet.

Much of the impetus, not surprisingly, stems from the fallout over the Janet Jackson/Justin Timberlake "flash" dance at the 2004 Super Bowl. Outraged federal legislators last year unsuccessfully tried to raise the fines that could be assessed by the Federal Communications Commission, but the House and Senate were unable to resolve the differences between their respective bills.

The prospects seem better this year as the House already has passed a bill, The Broadcast Decency Enforcement Act of 2005, which would raise the fines for broadcast indecency from $27,500 per incident to $500,000. The House also would like to fine individual performers who violate decency standards. The Senate is currently considering its own version of the Act, with maximum fines of $325,000 and a cap of $3 million for any particular incident. Again, any differences between the legislation passed by the two houses will have to be resolved by committee.

High Crimes?
But increased fines may not be the end of the story. The head of the House Judiciary Committee, James Sensenbrenner, R-Wis., told the National Cable & Telecommunications Association on April 4 that people who flagrantly violate decency standards should be criminally prosecuted rather than merely fined. However, Sensenbrenner did not elaborate on his statement, and there is no indication that he intends to introduce legislation to carry out his threat.

The heightened concern over decency in Washington does have its lighter moments. Representative James Moran, D-Va., has announced that he intends to file legislation that will classify advertisements for sexual performance drugs like Viagra, Cialis and Levitra as "indecent" and restrict their broadcast from 10 p.m. to 6 a.m. In a press release, Moran expressed concern about the prospect of parents having to explain "what a four-hour erection is." The comment alluded to a common disclaimer pharmaceutical companies include in their ads regarding possible side effects of erectile-dysfunction drugs.

But in general, the increased congressional focus on decency is no laughing matter. Although the Broadcast Decency Enforcement Act is aimed specifically at the broadcast radio and television industries, adult webmasters should pay close attention to what's going on in Washington these days. Much of the push for stricter decency rules is coming from a powerful Alaska Republican senator, Ted Stevens, who is chair of the Senate Commerce Committee. He recently told the National Association of Broadcasters that he wants to extend the FCC's jurisdiction to pay services like cable television and satellite radio. Stevens also has suggested to reporters that cable networks should be required to create a "kid-friendly" tier of programming.

Not surprising, cable groups like the National Cable and Telecommunications Association are opposed to these ideas. The NCTA points out, for instance, that the U.S. Supreme Court has distinguished between cable and broadcast television because consumers must choose to pay for cable in order to receive it.

Internet On Radar
Stevens is not limiting his ideas of kid-friendly content to cable and satellite broadcasts; the Internet is in his sights as well. In the spate of interviews he's granted on the subject, he suggested that Congress adopt legislation requiring websites to comply with a rating system or provide "viewer discretion" warnings for site visitors. Whether websites can be required to list a rating for sexuality or violence is a different issue from assessing criminal liability for transmitting indecency, so it's unclear whether the Supreme Court's decision regarding the Communications Decency Act would be applicable.

The more immediate issue for Stevens and his vociferously anti-porn colleague, Sam Brownback, R.-Kan., is whether attempts to impose decency requirements on cable, satellite and the Internet should be part of the Broadcast Decency Enforcement Act or separate legislation. Many question the constitutionality of what Stevens is proposing, and decency advocates in Congress fear that adding controversial provisions to the Act will doom its chances of passage this year.

Regardless of what steps Congress takes, the FCC is likely to be much more aggressive on the issue of decency over the coming years. In March, Michael Powell resigned as the chair of the commission and was replaced by North Carolina Republican Kevin Martin, who has been a member of the commission since 2001.

Whereas Powell could best be described as a reluctant warrior in the battle against televised indecency (until Congress harshly criticized his 2003 media consolidation proposal), Martin brings the attitude of a true believer. In recent FCC decisions on indecency, he has frequently either dissented from dismissals of complaints or filed concurring opinions calling for larger fines and license revocations.

Martin has a close and collegial relationship with many of mass media's most ardent critics, including the Family Research Council and the Parents Television Council. In a recent letter to L. Brent Bozell, president of the PTC, Martin raised the argument that broadcasters do not have unlimited First Amendment rights. "Certainly broadcasters and cable operators have significant First Amendment rights," Martin said, "but these rights are not without boundaries. They are limited by law. They also should be limited by good taste." There is little doubt that Martin is comfortable with the idea of being the nation's First Arbiter of Good Taste.

In the short term, Martin's appointment as chair of the FCC will have little direct effect on the Internet in general or adult webmasters in particular. The bigger picture is that the politically ambitious Martin will be an active supporter of legislation like the Broadcast Decency Enforcement Act, as well as legislation to extend the FCC's jurisdiction to other media, including the Internet.

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