Indecency Guidelines

John Crigler, attorney; Garvey Schubert Barer

Broadcast stations must comply with strict rules concerning obscene, indecent or profane material. This memo is a brief guide to these concepts and to steps all producers should take to avoid a violation of the FCC's standards.

Obscene

Programming is obscene if (1) an average person, applying contemporary community standards, finds that the material appeals to "prurient interests," (2) depicts or describes, in a patently offensive way, sexual conduct specifically defined by local law and (3) taken as a whole, lacks serious literary, artistic, political, or scientific value. Obscenity is hard core pornography. There is no "safe harbor" during which obscene programming can be aired.

Indecent

The FCC's indecency rules encompass material that is not obscene but that is deemed inappropriate for those under 18. Material is indecent if it is broadcast between 6:00 a.m. and 10:00 p.m. and contains "language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs." Three factors determine whether material is indecent: (1) whether the material is explicit or graphic; (2) whether it dwells on or repeats sexual or excretory matters; and (3) whether it panders, titillates or is used for shock value. The first factor is a subject matter test: does the material literally refer to sex, excretion, or sexual or excretory activities or organs? The second factor is durational: are references repeated or protracted? The third factor is a national standard of good taste: does the material patently offend the "average" broadcast viewer or listener.

Any one of these factors may be sufficient. A nanosecond of nudity (the Super Bowl halftime) is enough if it is explicit and shocking. Natural speech captured in a respected documentary, such as Scorsese's The Blues, is still considered "offensive" to average viewers, as are non-clinical references to sexual organs or to oral or non-heterosexual sex. Poor editing is a poor defense: if the meaning of bleeped words can be inferred, the material may be considered indecent. Crude jokes have serious consequences. The FCC is humorless about indecency. Innuendo counts. Code words will be considered indecent if they have a clear sexual meaning. There is no exemption for live broadcasts or for programs of great literary, cultural or political merit.

Profane

Words that do not "describe or depict" a sexual or excretory activity may be profane, even if they are not indecent. Profanity is: a "personally reviling" epithet "so grossly offensive to members of the public who actually hear it as to amount to a nuisance." Profanity consists of "the most offensive words in the English language, the broadcast of which are likely to shock the viewer and disturb the peace of the home."

The profanity standard is a return to the idea that some words, such as the "S-Word," and the "F-Word," are presumptively prohibited. They have been excused only in news actualities and war movies.

Fines

On June 15, 2006, new legislation gave the FCC authority to increase fines for indecency and profanity by a factor of 10. The FCC may now fine a station $325,000 for each violation, up to a maximum of $3 million.