E-Mail This Article to a Friend Indecent proposal 'Obscenity' vs. 'indecency' in the eyes of the Supreme Court BY HARVEY SILVERGLATE

IT IS NOTORIOUSLY difficult to define obscenity. Like Supreme Court justice Potter Stewart, most people claim to know it when they see it. Obscenity is the stuff of XXX-rated books, magazines, movies, and live performances. It involves actual sexual activity meant to titillate, excited sexual organs, inter-species sex, and other acts that test the limits of the human imagination and stomach. In the eyes of the law, obscenity enjoys almost no constitutional protection.

"Indecency," on the other hand, covers a host of portrayals of sexual and excretory acts. And contrary to common perceptions, indecent speech and pictures, including Janet Jackson’s "wardrobe malfunction," enjoy a large degree of First Amendment protection. The principal difference between obscenity and indecency, in legal terms, is that the latter is constitutionally acceptable unless the material in question is made available to children. If social conservatives have their way, however, the FCC will effectively erase that distinction in the world of broadcasting, and perhaps even in other electronic communications media as well — even though new communications technology arguably makes it easier than ever for caregivers to control what’s beamed into the home — and in the process reduce adults to the status of children.

THE CONSTITUTIONALITY of the FCC’s power to protect children from indecent broadcast speech was affirmed most notoriously in the 1978 case FCC v. Pacifica Foundation (more popularly known as the "seven dirty words" case), in which a bare majority of the Supreme Court upheld the FCC’s censorship of George Carlin’s famous monologue. Pacifica Radio, which broadcast the monologue, defended Carlin as "a significant social satirist" who "uses words to satirize as harmless and essentially silly our attitudes towards those words." The Supreme Court majority didn’t buy it, opting to "protect" children from "dirty" words and ideas. The First Amendment took a huge hit from which it has never fully recovered.

The court justified the censorship of non-obscene language and pictures distributed through broadcast media on two grounds: first, because broadcast media — which hold a government license to transmit over the airwaves, a limited public resource — had become pervasive in American life, and second, because it was "uniquely accessible to children." Therefore, the FCC could censor indecent broadcasting only during those hours when children were awake. After years of litigation during the 1980s, the US Court of Appeals for the District of Columbia Circuit approved a "safe harbor" for the airing of indecent material on broadcast TV and radio between the hours of 10 p.m. and 6 a.m. At all other times, such material may not be broadcast.

In recent decades, as the communications media have grown ever more diverse and omnipresent, Congress has sought to extend broadcast indecency restrictions to new media, including cable television, satellite radio, and the Internet. The Supreme Court has managed to uphold First Amendment protections for indecent speech in these new media, albeit through a bewildering array of justifications in a series of close decisions. (In the 2000 case US v. Playboy Entertainment Group, for example, the court, by a 5-4 vote, invalidated regulations requiring cable adult TV channels to scramble their signals or limit transmission to overnight hours because the government did not show that these were the "least restrictive" means of protecting children.) This has delighted, and to some extent surprised, free-speech advocates.

The Supreme Court has avoided restricting these new media in part because of the variety of censoring tools available to parents and teachers. "Lock boxes," "parental keys," electronic blocking, filtering technology (the so-called V-chip), and other such devices allow parents to exercise a considerable amount of control over what their children hear and see. Because parents wield so much discretion, one common argument justifying censorship — namely, that the broadcast media are so pervasive and readily available to children — has been found not to apply to cable, satellite, and the Internet.

Yet despite the Supreme Court’s observation that technology has for the most part obviated the need for widespread censorship of new media, a sizable bloc on the conservative right is not satisfied with this reasoning. These cultural conservatives seem upset that indecent material can be viewed or heard at all. Such a belief evokes H.L. Mencken’s famous definition of Puritanism as "the haunting feeling that someone, somewhere, might be happy."

By now, the war has gone way beyond children and broadcast media, and has ventured into the more fundamental question of whether our society is to be free, robust, and often messy, or authoritarian, disciplined, and orderly. The most optimistic legal analysis is offered by Robert Corn-Revere, one of the nation’s foremost First Amendment and communications-law experts, who claims that the FCC and the Supreme Court’s justification for broadcast censorship of indecency, upheld in the Pacifica case, no longer applies even to broadcast media, much less to the new media, because of the increasingly sophisticated technological means of parental control available in all of them.

These optimists are correct in their legal analyses, but they overlook the impact that a new, censor-happy Bush appointee to the Supreme Court could have on the boundaries of indecency regulation. Further, it is possible that the court might interpret some of these new technologies as hindering, rather than facilitating, parental control. As any father who has asked his 10-year-old daughter to program a DVD player knows, many children know how to work around electronic restrictions or record nighttime shows for later viewing. Technology thus might be a double-edged sword: the court could determine that a "safe harbor" period is insufficient to protect children, especially given the ubiquity of indecent speech in modern life, and permit an across-the-board ban of such speech from all radio, television, and even the Internet.

Commercial considerations also make the outcome of the legislative battle hard to predict. On the one hand, three of the four large television networks recently banded together to convince Congress not to extend indecency laws or increase punishments for violations. On the other hand, some traditional broadcast media have been pressuring lawmakers and the FCC to level the playing field by subjecting all media, including cable TV and satellite radio, to the same restrictions now applicable to broadcasting to eliminate unfair competitive advantages.

In many ways, we’re back to where we started in 1978, when George Carlin’s "seven dirty words" monologue caught the attention of the FCC and the Supreme Court. Will the entire US adult population ultimately be treated as children, ostensibly as a means of protecting the latter, or will the First Amendment be saved? Stay tuned.