The Federal Law on Indecency and the First Amendment: Memo
To: Rice E. Roni, Supervising Attorney, CARDWARE Inc.
From: [Student’s Name]
Re: Commentary on the Cardigans’ Commercial
The Cardigans have been very progressive in keeping up with the laws that affect their business as well as the cases linked to those laws. Particularly, they focus on respecting individual rights and considering the impacts of various laws on their business. However, they are currently facing a challenge in the form of the refusal by a local television station, WBLAH, to air their commercial on grounds that the commercial violates the state law on censorship and that it is not fit for children’s viewing. The Cardigans feel that they are protected under the First Amendment. The television station on the other hand feels that the slogan, “so light you won’t know you are wearing a thing!” is inappropriate.
The Cardigans’ case presents various characteristics that warrant consideration under the FCCs regulations as well as the first amendment. Federal laws on broadcasting, as enforced by the FCC, prohibit any profanity, indecency, or obscenity on the broadcast. From the first policy on indecency, which was established in 1927, there have been significant changes over the years on the enforced laws on nudity and indecency on television (Jost, 2012). The censorship statute enforced in the State of Ohio is intricately linked to the official censorship statute provided by the federal government through the 18 U.S.C section 1464, which prohibits uttering obscene, indecent and/ or profane language either verbally or in broadcast. The statute points out that since motion pictures are a medium of communication that may affect the recipients in different ways, some messages are best kept only for specific audiences. Moreover, there are some messages that should not be displayed through motion pictures. However, the FCC statute does not clearly define the types of messages that should be considered inappropriate for motion pictures and/ or sound display (Nimmer, 1958). Any judgment that can be passed on the law, therefore, should be circumstantial and objective. The laws may be good in one instance and negative in another.
The first amendment, on the other hand, is founded on the premise that censorship, which is the objective of the federal law on indecency, is prohibitive to the freedom of speech that should be enjoyed by citizens (U.S. Legal, n.d.). While the motion pictures industry is exempted from this regulation and required to have its internal systems for controlling indecency, television networks are required to adhere to the FCC regulation. Moreover, the fact that the FCC definition of indecency is vague implies that the consideration of this law could be very subjective, thus requiring further intervention. The first amendment, therefore, has the potential of creating sufficient control on the communications sector.
Both the federal law and the first amendment cover the rights of the Cardigans in having their commercial aired. This case is similar to that of the Action for Children’s Television v. the FCC, in which in spite of the general agreement that the content to be aired was indecent, the television network was allowed by the Supreme Court to air it anytime between 10 pm and 6 am (Garry, n.d.). In the Action for Children’s Television v. FCC, the plaintiff had been banned completely from airing programmes considered indecent to children. The 24 hour ban contravened an earlier precedence in which the court allowed such programmes to be aired between 10 pm and 6 am. The Cardigans’ commercial can be considered under this precedence due to various similarities that are observable between the cases. First, the Cardigan’s case, just like in the Action for Children’s Television case does not show clear evidence of indecency. Secondly, the Cardigans also have the right to be subjected to the controlled viewing of the commercial rather than a complete ban. Also as argued in the precedent case, parents have several options through which they can allow their children to watch indecent content even with the complete ban on. The Action for Children’s Television v. FCC case therefore provides the greatest support for the Cardigan’s case.
Another comparison can be made in the Federal Communications Commission v. Pacifica Foundation, in which a speech was prevented from airing on account of decency (Hudson Jr., n.d.). In the case, the FCC intended to prohibit Pacifica Foundation from airing George Carlin’s ‘filthy words’ due to its profanity. This case is similar to the Cardigans’ case since the both entail the use of words considered profane/ sexual. The Cardigans’ case, just like in the case of the FCC v. Pacifica Foundation, ought to consider both the context and the content of the message shared. The case can also be deduced to have been limited in content hence not warranting similar attention to political content. Similarly, the context of the commercial would be in a broadcast media that has been subjected to the least First Amendment scrutiny, which gives an opportunity for potential digression from the conventional judgment.
Considering the two laws and the cases, it is deductible that the Cardigans have the right to be aired or not. The words of the advert as planned by the Cardigans are sufficiently vague to not be taken directly as obscene or indecent. Considering that there is no mention of any pictures, the words do not appear indecent. However, if the Cardigans intend to accompany their words with some pictures, it would be advisable to confirm the types of pictures in the commercial. Indecent pictures would take away the freedom of speech under the first amendment since the commercial is not exempted by the requirement to self-regulate. On the other hand, if there are no visuals or if the visuals are decent, the Cardigans have the right for their commercial to be aired under both the state law and the first amendment. Furthermore, even programs considered indecent still have a target audience and can be aired at a time when only the required audience can access the message. In this case, it would be unfair for the WBLAH to deny the Cardigans a chance to access their targeted audience.
Garry, P.M. (n.d.). Action for Children’s Television v. Federal Communications Commission (D.C. Cir.) (1995). The First Amendment Encyclopedia. Retrieved from www.mtsu.edu/first-amendment/article/105/action-for-children-s-television-v-federal-communications-commission-d-c-cir
Hudson Jr., D.L. (n.d.). Federal Communications Commission v. Pacifica Foundation (1978). The First Amendment Encyclopedia. Retrieved from www.mtsu.edu/first-amendment/article/113/federal-communications-commission-v-pacifica-foundation
Jost, K. (2012, November 9). Indecency on television. CQ Researcher, 22, 965-988. Retrieved from library.cqpress.com/
Nimmer, M.B. (1958). The constitutionality of official censorship of motion pictures. The University of Chicago Law Review, 25, 625- 655. Retrieved from chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=3104&context=uclrev
U.S Legal. (n.d.) First Amendment and Censorship. Retrieved from entertainmentlaw.uslegal.com/censorship/first-amendment-and-censorship/#sthash.AnrMIuEN.dpuf