Court strikes down FCC's ban on most indecent TV broadcasts

WASHINGTON — WASHINGTON -- A federal appeals court struck down as unconstitutional yesterday a government regulation prohibiting indecent television programs broadcast between the hours of 6 a.m. and midnight.

The three-member panel of the U.S. Court of Appeals for the District of Columbia Circuit said that in trying to shield children from indecent programs, the Federal Communications Commission did not adequately consider the First Amendment rights of adults to view such programs.


The ruling is the latest in a complex series of court opinions aimed at defining how the government may balance the desire of many people to quarantine offensive material while preserving the Constitution's guarantee of free speech.

The FCC enacted the regulation last year in response to a mandate from Congress, which has been pressing the issue. Congress earlier ordered the agency to impose a 24-hour ban on material that, according to the FCC, fall short of obscene or pornographic but is considered "contrary to standards for broadcast medium."


The FCC defines indecent material as "depicting sexual or excretory activities or organs" in terms that are "patently offensive as measured by contemporary community standards for the broadcast medium."

The appeals court struck down the 24-hour ban last year as unconstitutional, and yesterday it said that the agency had not justified the narrower "safe harbor" for broadcasting indecent materials between midnight and 6 a.m.

Noting that the government said the regulations were largely to protect children from indecent materials, the appeals court said, "We can locate no evidence in the record that the government has taken the First Amendment interests of adults into account in advancing its compelling interest in the protection of children."

The judges said that limiting protected speech had to be done carefully and that the FCC, acting in haste because of the congressional mandate, had not done that.

Yesterday's opinion was written by Judge Patricia M. Wald and joined by Chief Judge Abner K. Mikva and Judge Harry T. Edwards. All three were appointed by President Jimmy Carter and are considered the most liberal members of a court widely viewed as frequently cleaving along distinct liberal-conservative lines.

The immediate results of the ruling are unclear. It would seem to allow broadcasters to televise indecent programs at any time, but Robert Ratcliffe, the assistant chief for law at the FCC's mass communications bureau, said that the agency would probably enforce rules under which the agency operated until 1991.

Those rules have never been explicitly ruled unconstitutional, but they are stricter than the one struck down Tuesday. They restricted indecent programming to after 8 p.m.