Monday, July 23, 2007

Indecency Regulation Alive and Well in the Senate

I wanted to update you on the latest events in the ongoing indecency wars. On July 17, a copy of my article in SportsBusiness Journal noted the potential effect of the FCC's "fleeting expletive" standard on sports broadcasts, despite the recent ruling by a federal appeals court vacating that standard.

Before the FCC even decided on what to do, my fears that Congress would put in its two cents have been realized. Senators Rockefeller (R-W.Va), Inouye (D-Hawaii), Stevens (R-Alaska) and Pryor (D-Arkansas) introduced the "Protecting Children from Indecent Programming Act" which states the the FCC "shall maintain a policy that a single word or image may constitute indecent programming." The measure was approved by the Senate Commerce Committee on July 19th by a voice vote.

FCC Chair Kevin Martin lauded the passage of the measure. The vote, he stated, "affirmed the Commission’s ability to protect our children from indecent language and images on television and radio. 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."

The committee approved a hastily drafted measure that ignores the mandates of the June 4th ruling, where the court in Fox v. FCC concluded that the FCC failed to justify changing its longstanding contextual policy for determining indecency to one of an isolated fleeting expletive. With the Senate Committee's actions and an apparently fast track to the full Senate, it is likely that a court will soon have to consider the First Amendment implications of this bill, assuming it becomes law.

Based on prior precedent and policy, I think that this bill is constitutionally defective as an overbroad regulation of protected speech. However, but sports broadcasters and their lobbyists should track this bill and attempt to insert the kind of "safe harbor" provision exempting them from liability from uncontrolled and unforeseen use of expletives during their broadcasts.

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