The Indecency Standard

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This was another issue that sharply divided the Commission and one that only eleven Solomons could have reached consensus on. Once again I voted with the bare majority and would like to put on record my reasons for so doing.

The issue was, once again, central to the charge of this Commission and could be framed this way: millions of American families are concerned about the virtual invasion of their homes by increasing amounts of increasingly explicit sexual depictions they find offensive and even dangerous to their families, most especially to their children.

The issue is fairly simple and straightforward for broadcast, noncable television. The FCC under its broad powers to regulate what can be transmitted over the air waves prohibits the dissemination of "indecent" words and images. The Supreme Court upheld this right in its Pacifica decision on the ground that citizens had a right to expect some regulation of broadcast materials coming into the home over which individual parents had no control.

The matter is not so simple with regard to cable television and other forms of satellite-transmitted programming. At least four court decisions, one of them in federal appeals court, have clearly established the essential diversity of broadcast and cable television and decreed that the "indecency" standard used to regulate broadcast materials could not and must not apply to cable television. In fact, the courts have so far declared, unanimously, that the application of the indecency standard to cable television is unconstitutional.

The issue is complex, not only by reason of the constitutional ambiguities that surround it, but also because, from a broader perspective, citizens have a right to be concerned about who and what are going to regulate what they may see on cable television.

Many witnesses who appeared before this Commission, for example, have pointed out, that if the "indecency" standard currently in force with regard to broadcast television were also imposed on cable television, most of the mainline Hollywood films currently on view in theaters across the country could not be shown on home television served by cable. It is hardly likely, even inconceivable, that the courts on any level, including the Supreme Court, would uphold such an extension of the indecency standard to cable television.

Indeed it is just as unlikely, regardless of an individual's particular ethical or moral persuasion, that such a blanket prohibition would be tolerated by the vast majority of the American people or the Congress that represents them.

There is still another compelling reason why many thoughtful people in this country would actively oppose any attempt to apply the same standards of broadcasting television to cable. Indeed, almost all of the principal religious denominations and religious broadcasters unanimously fought such an equation of broadcast and cable television on the grounds that it might seriously impede their own religious freedom to control their programming as they saw fit and might compel them to grant equal time to atheist or agnostic or anti-religious presentations.

Whatever one thinks of their argument, no one could plausibly accuse these religious leaders of not being sensitive to the import of their position or that they thereby were in favor of indecency on television. The fact is, however, that unless we equate broadcast and cable television, the FCC has no constitutional right to regulate programming on cable using the indecency standard upheld by the Pacifica decision.

For all these reasons therefore, and for others, I voted with the bare majority not to recommend the current indecency standards for cable television.

I would strongly support, however, new legislation by Congress that could thread its way successfully through the Scylla of unconstitutionality and the Charybdis of over regulation of this medium by government.

It seems to me that Congress should look to the principles of New York v. Ginsberg-which allowed lower obscenity standards to apply if children are recipients of pornography-as a beginning toward unraveling this conundrum. Ginsberg allows the government to declare some pornographic material "obscene as to children" and to make its sale to children a criminal act. Is it not possible then, that certain material may be judged "obscene as to the home" -- that is, judged by a standard that takes into account the special problems of parents in preventing access by their children to cable television or the telephone, and so be subjected to special regulation when it appears in those settings?

I am certain that all the Commissioners, regardless of how they voted on this narrow issue, deplore the increasing appearance on our home television screens, whether broadcast or cable, of sexually explicit and frequently violent and degrading materials. We differ only on how to achieve the laudable end of protecting our children from this unwanted and dangerous incursion into the sanctity of our families.

Statement of Father Bruce Ritter

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