ACLJ Defends Ban on Television Indecency

"The First Amendment right to free speech does not include indecent exposure in public settings like this," said Jay Sekulow, ACLJ Chief Counsel

WASHINGTON, Sept. 14, 2011—If states can prohibit someone from strutting around naked in public, they should also be allowed to stop nudity and other racy images that TV networks are broadcasting into our homes - especially at times when children are likely to be watching. That's why the American Center for Law and Justice (ACLJ) today filed a friend-of-the-court brief in the U.S. Supreme Court defending the ability of government authorities to outlaw public indecency, whether in person or on broadcast TV.

"Televisions are found in almost every home," said ACLJ Chief Counsel Jay Sekulow. "It may be that TV stations would prefer to cross the lines of decency in a misguided effort to boost ratings and bolster their profits. But to do so in prime time means sacrificing the protection of children, and adults, from gratuitous assaults on their sensibilities. The First Amendment right to free speech does not include indecent exposure in public settings like this."

The ability of the Federal Communications Commission (FCC) to prohibit broadcast indecency on TV is at stake in the case of FCC v. Fox TV (No. 10-1293).

The FCC case involves a constitutional challenge by the Fox, ABC, CBS and NBC television networks to the FCC's enforcement of a rule forbidding obscene language, or so-called “fleeting expletives,” during hours when children are normally part of the audience. A federal appeals court in New York ruled in July 2010 that the FCC’s policy on foul language was unconstitutionally vague and would risk chilling protected speech.

The FCC then asked the Supreme Court to hear the case. The court granted the petition at the end of June and the parties are now submitting written arguments to the court.

The ACLJ filed its amicus brief to call the court's attention to the problem of indecent nudity in broadcast programs. "An indecent television broadcast is essentially an indecent public display," the brief argues. Restricting the public exposure of a person’s private parts is a proper way of protecting children, an interest the court has recognized as "compelling."

The ACLJ brief also explains that this concern applies in full force to broadcast media like TV, given its pervasiveness and accessibility to children who have easy access to television. As Justice Kennedy wrote in a 1996 decision about cable TV, "The householder should not have to risk that offensive material come into the hands of his children before it can be stopped."

"The Supreme Court will be focusing on obscene language, not nudity, in this case," said Sekulow. "The purpose of our brief is to remind the court that there is another whole area of indecency - indecent exposure - hat the court needs to keep in mind. It would be a terrible thing if the court, while thinking about an occasional expletive dropping from the lips of a celebrity, inadvertently rendered a decision that undermined the important existing protections of children against public indecency, whether on the streets or on TV."

The Supreme Court will likely hear oral argument in the case in the winter and issue a decision sometime in the spring of 2012.

Led by Chief Counsel Jay Sekulow, the American Center for Law and Justice focuses on constitutional law and is based in Washington.

-30-