Judicial Notebook

Although indecent speech is protected by the First Amendment, speech in broadcast media has been restricted because of its omnipresence and its accessibility to children. Under the Federal Communications Commission's current policy, broadcast content is indecent if it includes content about sexual or excretory activities, or if it is patently offensive given contemporary community standards. When determining if something is "patently offensive," the FCC considers how explicit or graphic the material is, the length or repetition of the material, and whether the material is intended to titillate or is presented for shock value.

For many years, the FCC primarily enforced indecency claims for broadcasters' use of the "seven dirty words" uttered in a monologue by the same name performed by comedian George Carlin. The indecency policy was generally not enforced for single utterances of these words ("fleeting expletives"). But that changed in 2004 as a result of viewers' complaints about the infamous "wardrobe malfunction" that exposed Janet Jackson's breast during the Super Bowl. The FCC first applied its current policy to a Golden Globe Awards live broadcast during which an award recipient stated "this is really, really f***ing brilliant" during his acceptance speech. The FCC reasoned that fleeting expletives can be indecent because even one utterance of these words could harm children, but expletives may be permissible if they are integral to the artistic content of the show or occur as part of a "bona fide newscast." The FCC determines what fleeting material is indecent and what qualifies as "artistic" or "news."

In the upcoming case FCC v. Fox Television Stations, the Supreme Court must determine if the FCC indecency enforcement policies regarding expletives and nudity violate the right to free speech granted in the First Amendment to the U.S. Constitution. Under its current policy, the FCC ruled that fleeting expletives on two live awards shows, the CBS "Early Show" and the scripted drama "NYPD Blue" were indecent. The broadcasters argue that the FCC policy is vague because it provides no clear guidelines for what is prohibited, which abridges free speech by requiring broadcasters to avoid a wide variety of content. In general, any abridgement of free speech must be clear and specific enough to prevent subjective and indiscriminate enforcement.

Psychological research could provide useful information to legal and broadcasting decision-makers for many aspects of this case and others like it. First, psychological research could provide information on what is indecent according to "community standards." Research could examine current community standards for the indecency of various expletives, coarse language, sexual content and excretory content. This research could help the FCC clarify its policy, help broadcasters determine what to avoid and help courts make decisions about the indecency of broadcast content.

Second, psychological research could provide information on whether decision-making about indecency is likely to be subjective and indiscriminate, making the policy impermissibly vague. Some research indicates that judgments about obscenity are more strongly affected by individual differences than by content. Sexual attitudes, personal standards of indecency and gender influence obscenity judgments and judgments about community standards. Much of this research focused on sexually explicit material, so research on commonly broadcast content — such as mild sexual content, nudity and profanity — would be helpful in cases like this.

Finally, psychological research could investigate the potential negative effects of people's exposure to indecency. Some research indicates that sexually explicit media, which are curtailed by the FCC policy, can negatively affect how men behave toward women. Other research indicates that exposure to nudity in the media can increase sexual activity in adolescents. There is little research on the effects of profanity on behavior, which is also at issue in this case. On the other hand, research indicates that violence in media may have more negative effects on viewers' emotions and cognitions than sexual content in media. However, only sexual content is in the FCC policy regarding indecency.

More research is needed on the effects of exposure to sexual content, nudity and profanity because the presumed negative effects of this content on viewers is the primary justification for the limitations on free speech.


Judicial Notebook is a project of APA's Div. 9 (Society for the Psychological Study of Social Issues).