The U.S. 2nd Circuit Court of Appeals has decided that the FCC's indecency policy is "unconstitutionally vague." Damned straight! The FCC will most likely appeal this decision, sending the issue back to the Supreme Court, who could actually force the feds to finally clarify the rules for what is deemed unsuitable for broadcast.
Currently, the FCC's guidance on obscenity, indecency, and profanity reads as follows (more here):
Obscene material is not protected by the First Amendment to the Constitution and cannot be broadcast at any time. The Supreme Court has established that, to be obscene, material must meet a three-pronged test:
An average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest;
The material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law; and
The material, taken as a whole, must lack serious literary, artistic, political, or scientific value.
The FCC has defined broadcast indecency as
“language or material that, in context, depicts or
terms patently offensive as measured by contemporary
standards for the broadcast medium, sexual or excretory
activities.” Indecent programming contains patently
sexual or excretory material that does not rise to the
The FCC has defined profanity as “including language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.”
'Vague' might be an understatement! Imagine trying to apply this to each piece you want to air in the course of a 3-hour radio show. In any case, I'm hoping the FCC appeals this decision because I can't wait for the Supremes to hash it out. It could mean that a new wave of censorship will sweep the nation, it could open the floodgates, or it could make life as a broadcaster a whole lot less confusing. I'll be staying tuned...