Definitions
U.S. Supreme Court
Indecent, according to the Supreme Court, "merely refers to nonconformance with accepted standards of morality."[1] Sexual expression that is deemed to be indecent, but does not rise to the level of obscenity, is protected by the First Amendment.[2]
Federal Communications Commission
The Federal Communications Commission has defined indecent in the contexts of dial-a-porn and radio and television broadcasting to mean the description or depiction of "sexual or excretory activities or organs" in a "patently offensive" manner "as measured by contemporary community standards."[3]
Discussion
Indecent material is protected by the First Amendment unless it constitutes obscenity or child pornography. Except on broadcast radio and television, indecent material that is protected by the First Amendment may be restricted by the government only “to promote a compelling interest” and only by “the least restrictive means to further the articulated interest.”[4] The Supreme Court has “recognized that there is a compelling interest in protecting the physical and psychological well-being of minors. This interest extends to shielding minors from the influence of literature that is not obscene by adult standards.”[5]
There are federal statutes in effect that limit, but do not ban, indecent material transmitted via telephone, broadcast media, and cable television.[6]
There are also many state statutes that ban the distribution to minors of material that is “harmful to minors.” Material that is “harmful to minors” under these statutes tends to be defined more narrowly than material that is “indecent,” in that material that is “harmful to minors” is generally limited to material of a sexual nature that has no serious value for minors. The Supreme Court has upheld New York’s “harmful to minors” statute.[7]
References
- ↑ Federal Comm. Comm'n v. Pacifica Found., 438 U.S. 726, 740 (1978)(full-text).
- ↑ See Sable Communications of Cal., Inc. v. Federal Comm. Comm'n, 492 U.S. 115, 126 (1989)(full-text).
- ↑ 438 U.S. at 732. See also In the Matter of Industry Guidance on the Commission’ s Case Law Interpreting 18 U.S.C. §1464 and Enforcement Policies Regarding Broadcast Indecency, File No. EB-00-IH-0089 (Apr. 6, 2001).
- ↑ Sable, 492 U.S. at 126.
- ↑ Id.
- ↑ 47 U.S.C. §223(b) (commercial dial-a-porn), 18 U.S.C. §1464, 47 U.S.C. §303 note (broadcast media), 47 U.S.C. §§531(e), 532(c)(2), 532(h), 559-561 (cable television). The Supreme Court declared section 561 unconstitutional in Playboy Entertainment Group, Inc. v. United States, 529 U.S. 803 (2000).
- ↑ Ginsberg v. New York, 390 U.S. 629 (1968).