Broadcast Content Regulation Under Federal Law
Consumers who watch television or listen to radio often file complaints with the Federal Communications Commission (FCC) about the content of what they see or hear. These complaints may involve statements or images provided by hosts or guests on programs. Audience members may feel that a broadcast contains hate speech or discriminatory remarks about people with a certain characteristic. In other situations, a complaint may suggest that content in a broadcast threatens the United States, undermines democracy or social institutions, or is otherwise un-American. Still other complaints arise from content that strikes viewers as offensive, profane, or otherwise unfit for public audiences.
However, the First Amendment of the Constitution broadly protects most forms of speech. Just because a viewpoint is controversial does not mean that it should be quelled. The Supreme Court and other US courts have ruled that speech may be protected even if it is vulgar and offensive, subject to some narrow restrictions. This constrains the ability of broadcast stations and the FCC to restrain speech or respond to complaints.
Broadcast Decision-Making
Decisions regarding the content of broadcasts are made at the level of individual television and radio stations, which receive licenses through the FCC. They often select a broad range of materials related to topics such as local, regional, and national news, social issues, sports, and public safety, in addition to entertainment programming. Television and radio licensees also craft the structure and format of their programs and choose which guests they will host, or which calls they will accept on call-in shows. They have the discretion to edit programs and schedule them for times that would be appropriate for various sectors of their audience. Scheduling plays an especially important role when content would be inappropriate for children, and broadcast stations have an obligation to account for potential child viewers.
FCC Enforcement
Complementing the First Amendment, the federal Communications Act strictly limits the FCC in censoring broadcast material. This would be a content-based restriction and a likely constitutional violation, since it could prevent a certain viewpoint from being heard. The FCC has acknowledged that showcasing a broad range of perspectives generally benefits the American public. Diversity of opinion and public debate are critical to a democratic society, even at the risk of allowing some potentially offensive content to be disseminated.
On the other hand, the FCC retains enforcement powers in certain situations to which more limited protections extend. These generally arise in the context of obscene, indecent, or profane material. While these words are often used interchangeably, they have different meanings in the context of the First Amendment and communications law. The Supreme Court has developed a three-part test for determining when content is obscene:
- Would the average person find that the work as a whole appeals to the prurient interest, considering contemporary community standards?
- Does the work depict or describe sexual conduct as defined by state law in a patently offensive way?
- Does the work as a whole lack any serious literary, artistic, political, or scientific value?
Obscene material does not fall within First Amendment protections and cannot be broadcast. By contrast, indecent material cannot be banned under the First Amendment but must be restricted to certain hours (between 10 PM and 6 AM) when it is less likely that children would be in the audience. According to the FCC, indecent material depicts or describes sexual or excretory organs or activities in terms that are patently offensive when considered according to contemporary community standards for the broadcast medium. Profane material is also restricted to the hours between 10 PM and 6 AM. According to the FCC, profane material is grossly offensive language that constitutes a public nuisance.
Violations of these rules can lead to monetary penalties, license revocation, or the denial of a renewal application. The US Department of Justice also can pursue criminal charges in some cases, which can result in fines and imprisonment.
