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Radio Daze: FCC Moves Indecency Issue to Front Burner : Commission Caught in a Cross Fire Between First Amendment Champions and a 'Growing Public Outcry' for Action

What constitutes indecency on the public airwaves? The Federal Communications Commission's surprise crackdown on "indecent" radio programming last April stirred up a controversy that continues to crackle. While programmers wonder exactly what the regulatory agency considers indecent (the FCC has refused to define the term), others both inside and outside the industry debate the First Amendment implications of the FCC's involvement. The question of establishing clear-cut guidelines is on the FCC's front burner, Chairman Dennis Patrick says. In a four-part series, The Times examines the issues that will come into play in that decision. FIRST IN A SERIES. Next: The contrasting views of the men behind the "Jerker" controversy at KPFK-FM.

August 17, 1987|DENNIS McDOUGAL | Times Staff Writer

The subject of indecency makes the new chairman of the Federal Communications Commission visibly uncomfortable.

"Let me say first that this is a very difficult area," said Dennis Patrick, the otherwise cool, shrewd young lawyer from Orange County.

He fidgeted a moment, pondering the contradictions of free speech and broadcast censorship. Then he nodded to himself and launched into it.

"I would say that this Federal Communications Commission is second to none in the history of the commission in terms of its sensitivity to First Amendment rights," he continued steadily. "And therefore, we do not, as a philosophical matter, enjoy or look for opportunities to be involved in broadcast content."

Patrick paused for one careful moment, glancing around the lobby of the Monterey hotel where he had just finished speaking to 500 members of the California Broadcasters Assn. about virtually every important communications issue of the day. Except one: the regulatory agency's controversial crackdown in April against indecency on the radio, which has left the industry in a quandary over what language is safe to broadcast and whether the government is trampling on the medium's freedom of expression.

Then Patrick continued.

"However, all of that having been said, obscenity has never been protected by the First Amendment and indecency is subject to reasonable time, place and manner restrictions, even in the print media, which is my standard for First Amendment jurisprudence. And it's the standard that I believe ought to be applied to the electronic press."

He was on a roll, his words coming faster, more self-assured, as if he had given this sermon many times before.

"So. The fact is that, whereas the commission is very sensitive to First Amendment rights and is very disposed to give broadcasters a maximum amount of discretion generally with respect to how they program their stations, as a constitutional matter, obscenity is excepted from that category of speech which enjoys First Amendment protection, No. 1.

"And No. 2, more specifically in response to your question, there is a statute on the point. It's 1464 of the Criminal Code, which prohibits the broadcast of obscene and indecent speech, and the constitutionality of that statute, even as applied to indecency in the context of the broadcast medium, has been upheld by the Supreme Court."

He sat back in his chair, pleased that he had gotten through it one more time.

But what about indecency? he was asked. Obscenity seems pretty clear by comparison. Obscenity has a form, a standard, a definition. If it isn't spelled out, at least there is something of a consensus. Obscenity is child pornography, penetration, bestiality.

What about indecency?

"I really don't want to comment on how the standard might be made more specific at this point in time except to say that the commission has no interest in chilling protected speech, and broadcasters do have a legitimate concern about and interest in as much certainty as can be provided," he said.

The FCC will provide that certainty, Patrick said. Soon, at the behest of 15 major broadcast organizations including all three major television networks, National Public Radio and the Motion Picture Assn. of America, the commissioners will wrestle with the definition again, he said.

Does he know when the FCC will attempt to redefine indecency?

"I do not, although I can tell you it is on the front burner," he said. "It's something we are actively looking at now. It's a very difficult area."


Indecency is the issue that won't go away.

Indecency has a long, colorful American history ranging from James Joyce's "Ulysses" and Jane Russell's cantilevered brassiere in Howard Hughes' "The Outlaw" to Lenny Bruce's comedy routines and Linda Lovelace's oral acrobatics in "Deep Throat."

But defining just what indecency is has remained as inexact a science as politics or religion. What offends one person does not offend another.

In 1978, the Supreme Court handed down a decision that upheld an FCC finding that seven words uttered repetitively by comedian George Carlin in a comedy routine broadcast over WBAI-FM in New York had been indecent. The majority opinion went on to caution owners of the nation's television and radio stations not to broadcast "language or material that depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs."

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