From WFMU’s Beware of the Blog:
“The U.S. 2nd Circuit Court of Appeals has decided that the FCC’s indecency policy is “unconstitutionally vague.” Damned straight! The FCC will most likely appeal this decision, sending the issue back to the Supreme Court, who could actually force the feds to finally clarify the rules for what is deemed unsuitable for broadcast.”
Obscene material is not protected by the First Amendment to the Constitution and cannot be broadcast at any time. The Supreme Court has established that, to be obscene, material must meet a three-pronged test:
- An average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest;
- The material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law; and
- The material, taken as a whole, must lack serious literary, artistic, political, or scientific value.
I often wonder about certain elements on my own broadcasts. Although I believe that everything I air has “artistic value,” (one of the aforementioned vague terms purposely left flapping in the chilly breeze by those at the FCC) I’m also aware that my entire show represents a community of artists who are NOT “the average person.” As a result, I’ve often said that radio’s relationship with the FCC is something like the relationship between a child and a drunken, abusive stepfather— you have no idea what might set them off on a rampage, so you just tiptoe around and try not to catch their attention. The sooner that these laws are solidified, the sooner we’ll be able to avoid abuses of the system such as this.