Is this Protected Speech?

Friday, April 16, 2004, at 11:53AM

By Eric Richardson

(This post is part of a series on FCC regulation of indecency. To see the whole series, click on the FCC Category.)

The first thing you have to look at in this argument is whether the speech that the FCC is regulating is protected by the first ammendment. Everything hinges on that. If it's not protected Congress and the FCC can do whatever they want. If it is, though, then a variety of other questions have to be asked.

The type of speech we're talking about here is indecency, not obscenity. PBS has a really good resource on the first ammendment. In it you'll see the criteria for obscenity set out in Miller vs. California (413 U.S. 15 (1973)). That's the important criteria here. Obscene material does not have first ammendment protections, and can be freely legislated (well, to some extent anyway). In any case, obscenity is illegal for broadcast at all times.

Indecency, on the other hand, is protected speech. The Court, in the decision for FCC vs. Pacifica (483 U.S. 726 (1978)), said "But the fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas." Though indecency and obscenity are often taken as the same, legally they are very different.