The huge FCC fine against a Virginia station is a sign we need to rethink broadcast indecency rules

“The stroking of an erect penis on a broadcast [news] program is shocking.”

Count those among the words I didn’t expect to type this week. They appear in a written notice released Monday by the FCC. It informs WDBJ, a Roanoke, VA, television station, that the FCC intends to fine it $325,000—for a July 2012 news report that included, for three seconds, a video image of a sex act from a porn site.

The FCC called the fine “the highest … ever … for a single indecent broadcast on one station,” and Travis LeBlanc, chief of the commission’s enforcement bureau, said in a written statement, “Our action here sends a clear signal that there are severe consequences for TV stations that air sexually explicit images when children are likely to be watching.”

In my view, the case sends another clear signal: that it’s time to rethink the legal regime that holds broadcasters to different standards for indecency, and extend to them the same First Amendment protections that apply to other media. But before we get to that, let’s unpack exactly what happened at WDBJ.

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In its 6pm newscast, the station aired a story about a porn star volunteering for a local EMT rescue team. Illustrating that story was a video image, from a porn site, depicting the star in a suggestive but non-explicit way. However, part of the site itself was displayed along with the image, and visible was an explicit clip, as the FCC concluded, of a hand engaged in the activity noted above.

The image was displayed for roughly three seconds, and WDBJ president and general manager Jeffrey Marks said in a statement that “inclusion of the image was purely unintentional” and that the image was “small and outside the viewing area of the video editing screen.” He called the fine “an extraordinary burden on protected speech.”

For its part, the FCC said WDBJ committed “an apparent willful violation” of federal laws and regulations that restrict the broadcast of indecent material, per 18 U.S.C. § 1464 and Section 73.3999 of FCC rules. The commission’s reasoning:

WDBJ … failed to take adequate precautions to prevent the broadcast of indecent material when it knew, or should have known, that its editing equipment at the time of the apparent violation did not permit full screen review of material intended for broadcast. In addition, the indecent material was plainly visible to the Station employee who downloaded it; he simply didn’t notice it and transmitted it to Station editors who reviewed the story before it was broadcast.

The FCC defines “indecent” material as “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.” Broadcasters are not allowed to air this programming from 6am to 10pm, when children supposedly may be in the audience.

FCC actions against local stations for the broadcast of allegedly indecent material are not unheard of—the agency has taken two others since January 2014. But the proposed fine here, the maximum allowed by law, is larger by an order of magnitude. It’s also drawing the ire of media organizations, with the Radio Television Digital News Association calling it a “classic example of government regulation gone wild” and the National Association of Broadcasters saying the fine was “wholly unwarranted.”

WDBJ has said it plans to oppose the fine—which could get interesting because of doctrinal shifts in this area, where two Supreme Court decisions factor prominently: the 2012 case FCC v. Fox Television, Inc., and the 1978 case FCC v. Pacifica Foundation.

In Fox, the Court held that the FCC violated due process by changing its enforcement standards to make “fleeting” curse words and nudity punishable without fairly notifying broadcasters of the change. As the Student Press Law Center’s Frank LoMonte predicts, the WDBJ decision will raise questions about the definition of “fleeting,” since the offending image was displayed for three seconds. But those questions may be beside the point, because the WDBJ case involves a sex act, not a flash of breasts or buttocks, as in other “fleeting” cases brought by the FCC. Which means the agency might argue that any duration of a sex act is too long during family viewing hours.

Plus, as LoMonte writes:

Critics also will argue that the FCC has (again) muddied the enforcement waters by taking action against a news broadcast. Commission guidelines indicate that news programming about matters of public concern deserves extra latitude that might not be afforded to pure entertainment programming. But the Commission has resisted exempting news categorically from its indecency standards, and today’s [FCC] ruling makes clear that there is no free pass for newscasts—even when the exposure is brief and unintended.

More fundamental is the Pacifica case, in which the Court ruled that the First Amendment doesn’t bar the government from regulating broadcast indecency. That case, the foundation of the FCC’s indecency regime, made two important points. It said broadcasters receive limited protections because 1) “the broadcast media have established a uniquely pervasive presence in the lives of all Americans,” and 2) “broadcasting is uniquely accessible to children.”

Those are the assumptions built into every FCC indecency action, and increasingly they are open to question: as law professor Eugene Volokh wrote Tuesday in The Washington Post, two Supreme Court justices have argued recently that indecency regulations for broadcasters should be generally unconstitutional.

And there are good reasons to challenge the FCC’s thinking, as the Electronic Frontier Foundation and others tried to do in the Fox case. As I’ve written before, today’s media environment is nothing like the one the Pacifica court confronted. In 1978, Americans relied on broadcasting to deliver video content to their homes, and parents relied on the “on-off” switch to control their children’s access to that content.

We now have new delivery systems: cable and satellite operators, web platforms, streaming services. Their features and popularity have eroded the “uniquely pervasive presence” of broadcasting. Consumers today enjoy more freedom to choose what content they consume, and they have new tools to shield their children from certain content.

All of which suggests to me, as the EFF wrote in 2011, that “the factual basis on which Pacifica rests no longer holds true”—and that it’s time for First Amendment purposes to treat broadcasters as equals to newspapers, magazines, and the like.

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Jonathan Peters is CJR’s press freedom correspondent. An attorney, he is an assistant professor of journalism at the University of Kansas, where he teaches and researches media law and policy, with an affiliate research position exploring big data and Internet governance in the KU Information & Telecommunication Technology Center. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.