Neither Realistic nor Constitutionally sound: The Problem of the FCC's Community Standard for Broadcast Indecency Determinations

Abstract

The Federal Communications Commission exercises the power to regulate the broadcast of constitutionally protected indecent speech under a standard upheld by the U.S. Supreme Court in its 1978 decision in FCC v. Pacifica Foundation. In the thirty years since that decision, however, the FCC has pursued an increasingly idiosyncratic application of the Pacifica test that disposes with local community standards as the legal benchmark of indecency. In doing so, the FCC's approach rejects the judicial sources that originally legitimized the Pacifica indecency test, conflicts with the statutory authority by which the FCC regulates broadcasting generally, and contradicts the Court's specific and more recent rulings on indecency in the context of other media. In its upcoming review of Fox Television Stations, Inc. v. FCC, the Court will have an opportunity to correct the anomalies of the FCC's broadcast indecency regime. The Court should require that the FCC refer to local community standards in making its indecency determinations and bring the Commission's exercise of this authority into line with governing principles of First Amendment law.