Senate Committee Approves New Indecency Measure

Q Boyer
WASHINGTON — Another small battle in the so-called “culture war” is being waged in the Senate this week, where a committee gave its stamp of approval to yet another piece of legislation that purports to protect children from “indecent” material.

The Senate Commerce Committee today approved the Protecting Children from Indecent Programming Act, legislation that would enable the Federal Communications Commission to maintain a policy that a single word or image may be considered “indecent” and result in fines, accordingly.

The bill, introduced by Sen. John Rockefeller, D-W. Va., would “require the FCC, in enforcing its regulations concerning the broadcast of indecent programming, to maintain a policy that a single word or image may be considered indecent,” according to current text of the bill.

Committee Vice Chairman Ted Stevens, R-Alaska, who co-sponsored the bill, said Thursday that he was “pleased to see the Commerce Committee swiftly approve this bill.”

“It is important to give the FCC the tools it needs to continue to protect the American public from indecency on radio and broadcast television,” Stevens said.

The proposed act, also known as S1780, is one of several bills that have been introduced in response to a recent decision by the 2nd U.S. Circuit Court of Appeals in the case Fox Television Stations vs. FCC.

In the Fox case, the court found that the “FCC’s new policy sanctioning ‘fleeting expletives’ is arbitrary and capricious under the Administrative Procedures Act for failing to articulate a reasoned basis for its change in policy.”

In June, FCC Chairman Kevin Martin reacted angrily to the court’s ruling, saying that he was “disappointed for American families.”

“I find it hard to believe that the New York court would tell American families that ‘shit’ and ‘fuck’ are fine to say on broadcast television during the hours when children are most likely to be in the audience,” Martin said at the time.

Friday, Martin hailed the Commerce Committee’s approval of S1780.

“I appreciate the actions by the Senate Committee on Science, Commerce and Transportation, which affirmed the commission's ability to protect our children from indecent language and images on television and radio,” Martin said. “Significantly, members of Congress stated once again what we on the commission and every parent already knows: Even a single word or image can indeed be indecent.”

Martin’s appreciation for the Commerce Committee vote is not necessarily shared by free speech groups, 1st Amendment attorneys and broadcasters, of course.

Attorney Reed Lee, president of the 1st Amendment Lawyers Association, told XBIZ that while the introduction of such legislation following the 2nd Circuit’s recent ruling as “certainly predictable,” the bill would not alter the fundamental constitutional issues at play in cases like Fox vs. FCC.

“Congress can’t affect the contours of the 1st Amendment,” Lee said. “It can force the courts to reach such issues — if it really wants to — but it cannot change the constitutional issues that loom behind all the statutory interpretation.”

Several free speech advocacy groups have issued statements condemning the bill and urging the Senate to vote it down.

“There is no doubt that a mandate by Congress that a ‘fleeting expletive’ can now be found indecent will create a vast chilling effect on broadcast speech,” said Sophia Cope of the Center for Democracy and Technology in a statement posted to the CDT website. “Now, with a statutory directive stating that the FCC indeed has the authority to find fleeting expletives indecent, it is highly likely that broadcasters will censor themselves even more to avoid being targeted by the Commission.”

Caroline Fredrickson, director of the ACLU Legislative Office, concurred with Cope and said that Rockefeller’s legislation would “replace parents with Uncle Sam.”

“It borders on the ridiculous to think that our government should determine what is and is not ‘decent’ and substitute its judgment for that of America’s parents.” Fredrickson said. “This bill could have serious and damaging effects on the First Amendment.”

Later this month, the Commerce Committee will hold hearings that could result in another regulatory effort designed to curb access to indecent materials — materials available on the web.

The Commerce Committee is scheduled to hold a hearing July 24 entitled “Protecting Children on the Internet.” The stated purpose of the hearing is to explore ways to protect children from online predators, but legislative measures aimed at ‘indecent’ materials available via the Internet likely will be discussed, as well.

At press time, no witnesses or speakers have been listed for the July 24 hearing, which is scheduled to take place in room 253 of the Russell Senate Office Building, starting at 10 a.m.