Most Americans understand the difference between right and wrong. They understand the difference between cherished liberty and ruinous license. They understand that children are affected by the media they consume and that if the entertainment industry has a right to distribute whatever it wants, wherever and whenever it wants, children will be the losers. They understand that law is necessary to maintain a safe, healthy and decent society.
It seems clear, however, that in interpreting the First Amendment, some judges have ignored the history of the speech and press clause, Supreme Court precedents, the will of the people, and common sense and interpreted that cherished clause in light of their own ideological views. In so doing, they have become stone deaf to the warning enunciated in Columbia Broadcasting System v. Democratic National Committee, 412 U.S. 94, at 102-103 (1973):
"Thus, in evaluating the First Amendment claims ... we must afford great weight to the decisions of Congress ... Professor Chafee aptly observed: 'Once we get away from the bare words of the [First] Amendment, we must construe it as part of a Constitution which creates a government for the purpose of performing several very important tasks. The Amendment should be interpreted so as to not cripple the regular work of government.'"
While the Supreme Court has, on more than one occasion, ignored its own warning, it has not yet progressed to the moral-anarchistic views espoused by some radical libertarians. It will therefore be helpful to review some of what the Supreme Court has said about the right of government to protect the privacy of the home and children and to maintain a decent society.
As the Supreme Court noted in Roth v. United States, 354 U.S. 476, 483-484: "The unconditional phrasing of the 1st Amendment was not intended to protect every utterance… The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. This objective was made explicit as early as 1774 in a letter of the Continental Congress to the inhabitants of Quebec:
'The last right we shall mention, regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality and arts in general, in its diffusion of liberal sentiments on the administration of governments, its…communication of thoughts between subjects, and its consequential promotion of union, among them, whereby oppressive officers are ashamed and intimidated, into more honorable and just modes of conduct.' 1 Journals of the Continental Congress 108 (1774)."
The Court in Roth continued, quoting from its opinion in Chaplinsky v. New Hampshire:
"'There are certain well-defined and narrowly limited classes of speech the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene…It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.'" [Roth, 354 U.S. at 485] [Italics added]
The matter italicized above is almost a direct quote from the book, Free Speech in the United States, by Zechariah Chafee, Jr. (1941); and in footnotes 4 and 5, the Chaplinisky Court cites Chafee's book at pp. 149-150, where we find the following:
"But the law punishes a few classes of words like obscenity, profanity…because the very utterance of such words is considered to inflict a present injury on listeners…This is a very different matter from punishing words because they express ideas thought to cause future danger to the state…[P]roperly limited they fall outside the protection of the free speech clauses…[P]rofanity, indecent talk and pictures, which do not form an essential part of any exposition of ideas, have a very slight social value as a step towards truth, which is clearly outweighed by the social interest in order, morality, the training of the young and the peace of mind of those who hear and see…The man who swears in a street car is as much of a nuisance as the man who smokes there."
Mr. Justice Stevens, writing in FCC v. Pacifica Foundation, 438 U.S. 726, 744 (1978), also found Professor Chafee's observations persuasive. Having concluded that the indecent words at issue in Pacifica offended "for the same reason that obscenity offends," Justice Stevens said that the words were "'no essential part of any exposition of ideas'" and that whatever benefit they might have was "'clearly was clearly outweighed by the social interest in order and morality.'"
In concluding that indecency can be proscribed in broadcasting, the Federal Communications Commission [In the Matter of a Citizen's Complaint Against Pacifica Foundation Station WBAI, 56 FCC 2d 94, at 98 (2/21/75)] applied a nuisance rationale: "We believe that patently offensive language, such as that involved in the Carlin broadcast, should be governed by principles which are analogous to those found in cases relating to public nuisance. Williams v. District of Columbia, 136 U.S. App. D.C. 56 (en banc 1969)."
In Williams, the District of Columbia Court of Appeals upheld the constitutionality of District of Columbia disorderly conduct law enacted by Congress that remained virtually unchanged since 1898. In so holding, the Williams [419 F.2d at 644-646] court stated:
"That portion of Section 1107 which makes it illegal for any person 'to curse, swear, or make use of any profane or indecent or obscene words' is on its face extraordinarily broad… We therefore conclude that Section 1107 would not be invalid if the statutory prohibition against profane or obscene language in public were interpreted to require an additional element that the language be spoken in circumstances which threaten a breach of the peace. And for these purposes a breach of the peace is threatened either because the language creates a substantial risk of provoking violence or because it is, under 'contemporary community standards'…so grossly offensive to members of the public who actually overhear it as to amount to a nuisance."
In so holding, the Williams court noted that the legislative history of Section 1107 was "not inconsistent with the view" that what Congress intended to prevent was "behavior which disturbed the 'public peace and order' and not simply to prescribe a code of morals for private action." [419 F.2d at 644, n.13] Presumably, similar concerns prompted Congress to include provisions prohibiting indecency in the Radio Act of 1927 and Communications Act of 1934.
The Williams court also referred [419 F.2d at 640, n. 2] to the Model Penal Code Section 250.2 (Proposed Official Draft 1962) as prohibiting "offensively coarse utterances." The Comments to what became Section 250.2 are found in Tentative Draft No. 13 of the Code, submitted for discussion in 1961. The Comments read in part:
"Coarse or indecent language is penalized under clause (b) regardless of any actual or presumed tendency to evoke disorder among the hearers, since the interest we seek to protect is freedom from present nuisance rather than freedom from anticipated violence."
In Pacifica, 438 U.S. at 750, the Court noted that the FCC's decision "rested entirely on a nuisance rationale under which context is all important" (emphasis supplied). In distinguishing Pacifica from the "context" in Cohen v. California, 403 U.S. 15 (1971), the Pacifica Court said:
"The importance of context is illustrated by the Cohen case. That case arose when Paul Cohen entered a Los Angeles courthouse wearing a jacket emblazoned with the words 'F-k the Draft.' After entering the courthouse, he took the jacket off and folded it…So far as the evidence showed, no one in the courthouse was offended by the jacket…In contrast, in this case [Pacifica] the Commission was responding to a listener's strenuous complaint, and Pacifica does not question its determination that this afternoon broadcast was likely to offend listeners." [Pacifica, 438 U.S. at 747, n.25]
"First, the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home…Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected content. To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying the remedy for an assault is to run away after the first blow." [438 U.S. at 749-750]
"Outside the home, the balance between the offensive speaker and the unwilling audience may sometimes tip in favor of the speaker, requiring the offended listener to turn away …As we noted in Cohen: '…this Court has recognized that government may properly act in many situations to prohibit intrusion into the privacy of the home of unwelcome views and ideas which cannot be totally banned from the public dialogue…'" [at 749, n.27]
"Second, broadcasting is uniquely accessible to children, even those too young to read. Although Cohen's written message might have been incomprehensible to a first grader, Pacifica's broadcast could have enlarged a child's vocabulary in an instant." [at 749]
As the Pacifica Court observed, "a 'nuisance may be merely a right thing in the wrong place—like a pig in the parlor, instead of the barnyard'…We simply hold that when the Commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene." [Pacifica, 438 U.S. at 750-751]
In Hess v. Indiana, 414 U.S. 105, at 107-108, the Court said this about public nuisances:
"Indiana's disorderly conduct statute was applied…to punish only spoken words. It hardly needs repeating that 'the constitutional guarantees of freedom of speech forbid the States to punish words or language not within 'narrowly limited classes of speech'…In the first place, it is clear the Indiana court specifically abjured any suggestion that Hess' words could be punished as obscene…By the same token, any suggestion that Hess speech amounted to 'fighting words'…could not withstand scrutiny…In addition, there was no evidence to indicate Hess' speech amounted to a public nuisance in that privacy interests were invaded…Cohen v. California, supra, at 21." [Italics supplied]
The notion that the broadcast indecency law prohibits discussion about sex is absurd.
Morality in Media and other organizations concerned about the proliferation of pornography and the erosion of standards of decency in the media regularly "take to the public airwaves" to talk about human sexuality and the abuse thereof. As Justice Stevens noted in Pacifica, 438 U.S. at 743, n.18, "A requirement that indecent language be avoided will have its primary effect on the form rather than the content of serious communication. There are few, if any, thoughts that cannot be expressed by the use of less offensive language."
Furthermore, while program content can be indecent even though it has serious artistic, literary, scientific and political value, serious value is part of the context that the FCC considers when determining whether language is indecent. For example, it is one thing for a radio shock jock to refer in a vulgar or lewd manner to the anus in order to get a laugh out of his or her morally challenged audience and to maintain his or her Nielsen ratings and another matter for a doctor to refer to that excretory organ while discussing colon cancer.
In an article entitled "Obscenity Law and the Supreme Court" (Where Do You Draw the Line, pp. 102-103, Victor B. Cline, editor, Brigham Young University Press, 1974), attorney Paul J. McGeady explains why it would be foolhardy to give broadcasters an absolute right to air patently offensive depictions and descriptions of sexual or excretory activities on radio and TV, if the same were shown to have serious literary, artistic, political or scientific value:
"Literally, the quality of lack of serious value which obscenity must have means that even where you have pruriency (appeal to lust) and patently offensive hardcore sexual conduct…it is legal to publish or present it if the work has serious literary or artistic value. Let us now apply that [serious value] concept to a form of media, for example, television…It would appear that most Americans obviously would not tolerate this…
"From this exposition it is quite obvious that different standards must be applied to TV, radio…Television and radio communications certainly partake of the nature of a public thoroughfare (albeit an electromagnetic one), and what may be prohibited on the public street should be equally prohibited on TV and radio…
"These programs come into the home, and under the doctrine of Breard v. Alexander, 341 U.S. 622 (1951), the usual broad play afforded free speech may be curtailed…
"What is the quality in public nudity that permits the law to inhibit it without proof of obscenity?…We suggest that the quality is 'Intrusiveness' (as in Breard)…Just as a citizen is entitled to walk down a street without necessity of having to avert his eyes [and his or her children's eyes] to avoid a public nude performance, so too he is entitled to 'flip the dial' without viewing intrusive nudity or explicit hardcore sex."
Having driven much of their audience away because of program content that is creatively and morally bankrupt, broadcast TV networks now argue that to compete with cable they must be able to air program content similar to that shown on HBO and Showtime, both of which air some content that may not be obscene but that is, by almost any definition, pornographic.
In Ginsberg v. New York, 390 U.S. 629, at 639-641 (1968), the Supreme Court, in upholding the New York harmful to minors law, stated that two governmental interests justified the law's limitations upon the availability of sex materials to minors:
"The legislature could properly conclude that parents and others, teachers for example, who have this primary responsibility for children's well-being are entitled to the support of laws designed to aid discharge of that responsibility…The State also has an independent interest in the well-being of its youth…'While the supervision of children's reading habits may best be left to their parents, the knowledge that parental control or guidance cannot always be provided and society's transcendent interest in protecting the welfare of children justify reasonable regulation of the sale of material to them.'
"…this Court, too, recognized that the State has an interest 'to protect the welfare of children' and to see that they are 'safeguarded from abuses' which might prevent their 'growth into free and independent well-developed men [and women] and citizens.'"
The Pacifica Court noted that in Ginsberg "we held…that the government's interest in the 'well-being of its youth' and in supporting 'parents' claim to authority in their own household' justified the regulation of otherwise protected expression'…The ease with which children may obtain access to broadcast material, coupled with the concerns recognized in Ginsberg, amply justify special treatment of indecent broadcasting."
Common sense ought to inform us that the well being of children is indeed a proper subject within the government's power to regulate. First, it is clear that many children do not enjoy the blessings of even one responsible parent. Second, no parent can monitor his or her children every hour of every day from birth until age eighteen. Third, while most parents do their best, many still fight a losing battle against a "media culture" that is at war with everything they try to teach their children. Fourth, even if parents succeed in raising the perfect child who not only knows right from wrong but also possesses the inner strength to act on that knowledge, they can't guarantee that someone else's imperfect children won't harm their child.
Gregarious in nature, humans form governments to help order the communities in which they live and to protect themselves from irresponsible and evil persons who would harm the community or individuals in it-including children, who often need special protections.
In Butler v. Michigan, 352 U.S. 380 (1957), the Supreme Court invalidated a state law making it illegal to distribute to persons of any age material manifestly tending to corrupt the morals of youth. The Michigan approach was to "burn the house to roast the pig" and "to reduce the adult population of Michigan to reading only what is fit for children."
As pointed out in Pacifica, 438 U.S. at 750, n.28, however, adults who choose to hear or view indecent but nonobscene language can "purchase tapes and records or go to theatres and nightclubs." Time of day is also an important variable to be considered in determining whether program content is indecent [at 750]. Some programs that are inappropriate for children could, therefore, be appropriately aired after 10 p.m. or11 p.m. or, in some cases, after midnight. Cable and satellite TV systems also offer a variety of subscription channels and could offer more. Mainstream motion picture theaters are also an option for films and documentaries.
In Pacifica, 438 U.S. at 740, the Supreme Court noted that the "normal definition of 'indecent' merely refers to nonconformance with accepted standards of morality." As defined by the Commission, however, the term "indecent" is limited to language that, in context, depicts or describes, in a patently offensive manner, depictions and descriptions of sexual or excretory activities or organs. The Commission's definition is similar to the second prong of the Supreme Court's three-part obscenity test, enunciated in Miller v. California, 413 U.S. 15 (1973). In concluding that the obscenity test was not vague, the Miller Court stated, at pages 25-26:
"Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene material unless these materials depict or describe patently offensive 'hardcore' sexual conduct specifically defined…We are satisfied that these specific prerequisites will provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution. If the inability to define regulated materials with ultimate, god-like precision altogether removes the power of the State or the Congress to regulate, then 'hard core' pornography may be exposed without limit to the juvenile, the passerby, and the consenting adult alike, as, indeed, Mr. Justice Douglas contends…In this belief, however, Mr. Justice Douglas now stands alone." [Emphasis supplied]
In a much earlier case involving obscenity, Rosen v. United States, 161 U.S. 29, at 42 (1896), the Supreme Court wrote, "Every one who uses the mails of the United States for carrying papers and publications must take notice of what, in this enlightened age, is meant by decency…in social life." It would appear that some broadcasters no longer know what decency in social life is—which, at bare minimum, ought to raise questions about their fitness to fulfill their statutory obligation as broadcast licensees to serve the public interest.
Some broadcasters apparently confuse profitability with acceptability. Take, for example, the Howard Stern Show. Nielsen reported last year that in the New York City metropolitan area, 7% of the radio audience tuned into Stern's program. With ratings like that, it is no wonder Stern is a "cash cow" for Infinity Broadcasting. But Stern's Nielsen ratings don't add up to community acceptance, even in New York. Even assuming that 7% of the (adult?) radio audience listens to Stern, that means that 93% of the radio audience doesn't listen to his radio version of a mean-spirited burlesque show. And many if not most New Yorkers aren't listening to radio. They are watching TV, surfing the net or enjoying a few moment of peace and quiet.
Some broadcasters apparently assume that if people watch TV they must approve of everything they view. Opinion polls, however, have consistently shown that most Americans are offended by (and concerned about) sex and vulgarity on TV, including the following polls:
- According to a N.Y. Times/CBS News Poll (11/23/04), 70% of adult Americans are worried that "popular culture - that is, television, movies and music - is lowering the moral standards of the country."
- According to a national survey released by the Kaiser Family Foundation (9/23/04), 89% of parents are "concerned about children's exposure to inappropriate content in entertainment media, especially on TV."
- According to a national survey by the Barna Group (7/26/04), only 15% of adults support allowing "the 'F-word' on broadcast TV."
- According to a Chicago Tribune poll (7/4/04), 58% of adults "approve of heavy FCC fines of radio stations due to broadcasts they consider indecent." [Author's note: by inserting the words they consider in the question, the pollsters raise doubts as to whether the content is in fact indecent and take advantage of some citizens distrust of government.]
- According to the State of the First Amendment Survey, released by the First Amendment Center (6/29/04), 65% of adults think "government should have the power to regulate during the morning, afternoon and early evening hours those broadcast television programs that contain references to sexual activity." [Author's note: I suspect the percentage would have been higher had the question read as follows, "Should the FCC have authority to prohibit patently offensive depictions of sexual or excretory activities or organs on TV and radio during hours when large numbers of children are in the audience?"]
- In a national survey conducted by A.C. Nielsen (4/29/04), 78% of American families who had recently been part of the Nielsen "People Meter" panel wanted more shows "without profanity or swear words."
- In a national opinion poll for TV Guide (8/2/03), 57% of TV viewers said they "noticed an increase in offensive material on television lately."
- In a national opinion poll for Common Sense ("New Attempt to Monitor Media Content," NY Times, 5/21/03), 64% of parents with at least one child between the ages of 2 and 17 believed media products in general were inappropriate for their families. Only one in five "full trusted" the industry-controlled rating systems.
- In a national survey by Public Agenda ("Parents feel they're failing to teach values," USA TODAY, 10/30/02), "about 90% [of parents] say TV programs are getting worse every year because of bad language and adult themes in show that air from 8 to 10 p.m."
- In a national FAMILY CIRCLE poll (10/8/02), 67% of those surveyed said they are worried about the amount of sex on TV and 69% believe TV sex is increasing. When asked about specific scenes in programs such as Sopranos, The Shield, West Wing, and Sex in the City. Large percentages (from 48% to 76%) found the scenes "unacceptable."
Some broadcasters apparently assume that if people don't make complaints about programming, they must not be offended. But while only 8% of adult Americans polled last year (TV Guide, 8/2/03) said they had called a TV network to complain about something that offended them, 57% said they "noticed an increase in offensive material on television lately." There are a number of reasons why most people don't complain to broadcasters, including the following. First, broadcasters don't encourage viewer feedback, and most people don't know where or to whom complaints can be sent. Second, complaints to broadcasters about program content usually fall on deaf ears; and for that reason, when citizens do complain, they usually complain to program sponsors. As for complaints to the FCC, for almost two decades pro-decency organizations had to tell citizens, in so many words, "The FCC will not act on the [indecency] complaint without a tape or video of the offending material or…a written transcript of the relevant content" (Stranger in the House, Morality in Media, 2000). Very few, if any, listeners and viewers are taping programs when assaulted by indecent broadcast content.
Some broadcasters seem unconcerned about the fact that children listen to radio and watch TV and ignore the fact that in determining whether program or advertising content is indecent, the FCC properly takes that into consideration. Even assuming that most adults have become as amoral or jaded as the New York and Los Angeles based entertainment media, only a fool would assume that five year olds and ten year olds and fifteen year olds can handle the floodtide of irresponsible and morally debilitating entertainment they are exposed to on TV and radio.
Decades ago, broadcasters had an industry code and self-imposed internal standards that generally reflected community standards. No longer. Despite their protestations, however, the problem is not that broadcasters can no longer discern what the community standards are. The problem is that many broadcasters no longer care about community standards. If they did, they would revitalize their standards departments, establish representative focus groups, and work with A.C. Nielsen to get feedback from viewers. They would also talk to the editors of mainstream newspapers, especially the N.Y. Times, USA Today and Wall Street Journal. In determining what is indecent in broadcasting, the FCC does not apply local community standards.
Instead, many broadcasters constantly push the envelope and then complain that they don't know whether the FCC will deem this or that transgression of community standards actionable.
I would add that in Action for Children's Television v. FCC, 852 F.2d 1332, at 1338-1339 (1988), the D.C. Circuit rejected petitioners' argument that the definition of indecent was vague. I would also add that there is "no 'bright line test' for recognizing sexual harassment" ("Attorneys Offer Tip on…Charges of Sexual Harassment," U.S.L.W., Vol. 67, No. 6, p. 2090 (8/18/98), but media companies are still responsible for determining what violates the law.
There is a difference between a prior restraint upon publication and subsequent punishment of what is contrary to the public welfare. As stated in Near v. Minnesota, 283 U.S. 697 (1931):
"In determining the extent of the constitutional protection [speech and press], it has been generally, if not universally, considered that it is the chief purpose of the guaranty to prevent previous restraints upon publication…The liberty deemed to be established was thus described by Blackstone: '…Every freeman has an undoubted right to lay what sentiment he pleases before the public; to forbid this is to destroy freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequences…'
"The criticism upon Blackstone's statement…[is] chiefly because the immunity cannot be deemed to exhaust the conception of the liberty guaranteed by the state and federal constitutions. The point of criticism has been…'that the liberty of the press might be rendered a mockery and a delusion…if, while every man was at liberty to publish what he pleased the public authorities might nevertheless punish him for harmless publications'…But it is recognized that punishment for abuse of the liberty accorded to the press is essential to the protection of the public…" [283 U.S. at 713-715]
In rejecting the argument that enforcement of the broadcast indecency law constituted forbidden "censorship," the Court in FCC v. Pacifica Foundation, 438 U.S. 726 (1978) stated:
"The prohibition against censorship unequivocally denies the Commission any power to edit proposed broadcasts in advance and to excise material considered inappropriate for the airwaves. The prohibition, however, has never been construed to deny the Commission the power to review the content of completed broadcasts in the performance of its regulatory duties." [438 U.S. at 735]
The Pacifica Court went on to quote approvingly from Judge Wright's opinion in Anti-Defamation League of B'nai B'rith v. FCC, 131 U.S. App. D.C. 146, at 150-151, n.3 (1968):
"'This would not be prohibited 'censorship'…any more than would the Commission's considering on a license renewal application whether a broadcaster allowed 'coarse, vulgar, suggestive, double-meaning' programming; programs containing such material are grounds for denial of a license renewal.'"
Spectrum scarcity may have been the primary reason Congress first intervened to regulate radio, but I do not think the validity of the prohibition on obscene or indecent language should depend on spectrum scarcity. As stated in FCC v. Pacifica, 438 U.S. 726, at 748-749:
"And of all the forms of communication, it is broadcasting that has received the most limited First Amendment protection…Similarly, although the First Amendment protects newspaper publishers from being required to print the replies of those whom they criticize…it affords no such protection to broadcasters…Red Lion Broadcasting Co. v. FCC, 395 U.S. 367.
"The reasons for these distinctions are complex, but two have relevance to the present case. First, the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home…Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content…Second, broadcasting is uniquely available to children, even those too young to read…"
I would add, "As Mr. Chief Justice Warren stated, there is a 'right of the Nation and States to maintain a decent society.'" [Paris Adult Theatre v. Slaton, 413 U.S. 49, at 59-60 (1973)]
Today, about 75% of American homes receive their broadcast TV signals through basic cable; and there is simply no justification for not proscribing indecency on other basic cable channels—like Comedy Central and MTV. Yes, cable subscribers do pay a monthly fee, but so what? While I am old enough to remember life without TV, I am not so old as to have forgotten the price working class families paid in the 1950s to bring TV into their homes. Not only did dads and moms save to buy a television, many also saved to erect aluminum antenna towers to receive signals clearly. Furthermore, broadcast viewers have always paid for the programming they watch through the purchase of products and services advertised in broadcasting.
Telephone customers also pay monthly fees, but in Information Providers Coalition for Defense of the First Amendment v. FCC, 928 F.2d 866 (9th Cir. 1991) and in Dial Information Services v. Thornburgh, 938 F.2d 1535 (2nd Cir. 1991), cert. den., 502 U.S. 1072 (1992), two federal Circuit Courts upheld regulation of indecent dial-a-porn messages.
Yes, cable subscribers can block channels before or after they have a problem, but requiring subscribers to opt out of indecency is not the same as requiring subscribers who want it to opt in. [See, U.S. v. Playboy, 529 U.S. 803, at 841-842 (2000) (Justice Breyer dissenting); see also, Dial Information Services v. Thornburgh, 938 F.2d 1535, at 1542 (2nd Cir. 1991), cert. den., 502 U.S. 1072 (1992)(voluntary use of blocking technology would not protect children from dial-a-porn)] I would add that while the "V-Chip" has been available for four years, few parents use it despite their concerns about sex on TV. [See, e.g., Parents, Media and Public Policy, A Kaiser Family Foundation Survey, at pp. 2-4, 7-8, released, 9/23/04]
Cable TV operators—and also satellite radio operators—also have an alternative that is not available to broadcasters—i.e., premium channels; and, to its partial credit, at least one satellite radio company, XM Satellite Radio, is using it. To receive the signal for the filthy-mouthed "Opie and Anthony" program, XM subscribers must pay an additional fee of $1.99 per month.
Now, along comes Sirius Satellite Radio, which describes its programming as consisting of "a variety of music, news, talk, sports, children's and other entertainment." [Emphasis added] Sirius then informs parents, "some programming may contain explicit language…We are not responsible for content that you or anyone else may find inappropriate." Well now, if the company that provides the programming and profits from it is not responsible, who is—technologically handicapped, overworked and uninformed, naïve, or even indifferent parents?
Now that the FCC is getting tougher on broadcast indecency, Howard Stern has announced that he will be moving to Sirius, where, short of legal obscenity, he will have no fear from the FCC. In a December 14, 2004 letter [DA 04-3907, Released December 15, 2004], W. Kenneth Ferree, Chief, Media Bureau, declined a request from Mt. Wilson FM Broadcasters, Inc. to commence a rulemaking proceeding to amend the Satellite Digital Audio Radio Service rules to include an "indecency" provision. Said Chief Ferree, the FCC has concluded that satellite radio is "lacking the indiscriminate access to children that characterizes broadcasting."
While it is true at present that far more children have "indiscriminate access" to broadcasting than to satellite radio, it is also true that the number of children who already have "indiscriminate access" to satellite radio will grow as satellite radio grows in popularity. Furthermore, just as adults inadvertently stumbled into Stern's version of a mean-spirited burlesque show while listening to broadcast radio in the home or car, so too will adults stumble into Stern's even more offensive show while listening to satellite radio in the home or car. And to the extent that satellite radio becomes more and more an open sewer and less and less a marketplace of ideas, society's right to maintain a decent society will also be undermined.