Content-Based Regulation of Electronic Media: Indecent Speech on the Internet


Kelly M. Slavitt


VOL. XXI • Fall 2002 • NO. 1 (table of contents)

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Using an airing of the Victoria Secret fashion show as an example, the author explores the definition of "indecency" in media. She first discusses the how FCC treats indecency in traditional media (radio, broadcast TV and cable). Then, she addresses numerous failed attempts of applying indecency on the Internet. Consequently, she compares and contrasts the different media. Lastly, she suggests a solution in this regard that would likely pass constitutional muster.

The FCC can impose fines or prison sentences on radio and broadcasting licensees for "uttering any obscene, indecent or profane language by means of radio communications." As for cable television, the courts first held that such media is different from radio and broadcasting because of the direct connection between the providers and subscribers. Then, the courts held that cable television providers are permitted to screen out patently offensive programs while limiting offensive programs can be viewed in only certain number of channels.

With this in mind, the author then discusses government's failed attempts to protect children on the Internet. First, it was the Communication Decency Act and the US Supreme Court held that it was insufficiently narrowly tailored and placed an unacceptable burden on adult speech. Second, there was the Child Online Protection Act, but the high court only addressed a narrow issue of community standard. Third, the Children's Internet Protection Act was reviewed by a District Court and is awaiting the high court's ruling in July 2003.

In her approach, the author suggests that the proper question to ask in this discussion is "what would it take to protect children at this time in this particular media?" She points out courts are looking at the effects of rapid technological advances on the economic structure and the law. Hence, a clearer standards will help to ensure everyone's rights are protected.

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