First Amendment

Pornography and Indecency

Indecency on broadcast media has been addressed through legislation and in various judicial rulings. The 1978 Supreme Court case Federal Communications Commission v. Pacifica Foundation established that civil punishments were appropriate for broadcasters who broadcast indecent speech during times when children might be in the audience. A radio station in New York played comedian George Carlin's “Filthy Words” monologue, with a warning that it might be offensive to some listeners, at 2 p.m. A father and his son were tuned in, and the father later filed a complaint. The Supreme Court held that this broadcast was indecent.

The Federal Communications Commission (FCC) has established that it is illegal for broadcasters (on overthe-air broadcast stations or on radio) to broadcast indecent content between the hours of 6 a.m. and 10 p.m. Indecent content is defined as depictions or descriptions of sexual or excretory functions. Concerned listeners may file complaints with the FCC, and the FCC may fine the offending broadcaster or, in severe or repeated cases, revoke the broadcaster's license.

[Page 340]Protecting children from online pornography is also a legislative and judicial concern. Online pornography is a multibillion-dollar industry, and it is easy for unsuspecting children to stumble upon sexual content. Congress has twice attempted to control the dissemination of online sexual materials to minors. The first attempt was part of the omnibus Telecommunications Act of 1996, the largest overhaul of the Communications Act of 1934. This legislation, named the Communications Decency Act, or CDA, was struck down by the Supreme Court in the 1997 case of Reno v. American Civil Liberties Union as unconstitutionally overbroad.

The second act, the Children's Online Privacy Protection Act of 1998, or COPPA, has also been struck down for various reasons at various levels of judicial review. The most recent Supreme Court opinion, Ashcroft v. American Civil Liberties Union, decided in 2004, found that there might be less restrictive means than COPPA to achieve the government's goal of protecting children from online pornography. The statute was remanded for further consideration by a lower court in light of new technological developments that might provide sufficient protection for minors while minimizing First Amendment encroachment.

However, a federal statute requiring libraries that receive federal funding for Internet access to install filtering software to block pornographic content was upheld by the Supreme Court in 2003 in United States v. American Library Association. The Children's Internet Protection Act, or CIPA, was held as a constitutional way for libraries to limit minors' access to online sexual materials. CIPA does not forbid libraries from offering nonfiltered access; it merely says that the federal government will not subsidize that access. Consenting adults may request that the software be disabled if they wish to access blocked content.

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