Eleanor Finch
The First Amendment to the Constitution of the United States reads, Congress shall make no law...abridging the freedom of speech, or of the press. This means that the First Amendment rights to free speech and a free press are protected from government restriction. However, the Supreme Court has rejected the claim that there is a constitutional right to provide or acquire obscene material for private use. In addition, the Federal Communications Commission (FCC) has restricted indecent speech in broadcast media due to its accessibility to children. The FCC's current policy defines broadcast content as indecent if it includes sexual or excretory activities, or if it is patently offensive given contemporary community standards.
| Characteristics | Values |
|---|---|
| Is indecent private speech protected under the constitution? | Yes, but only in the home |
| What about indecent speech in broadcast media? | Restricted because of its accessibility to children |
| What is considered indecent? | Sexual or excretory activities, or anything patently offensive given contemporary community standards |
| Who decides what is patently offensive? | The Federal Communications Commission (FCC) |
| How do they decide? | By considering how explicit or graphic the material is, the length or repetition of the material, and whether it is intended to titillate or shock |
| What about fleeting expletives? | The FCC has ruled that these are indecent, but broadcasters argue that the FCC policy is too vague and abridges free speech |
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What You'll Learn
- The First Amendment protects pornography and erotic material
- The First Amendment does not protect government speech
- The First Amendment does not constrain speech restrictions imposed by private entities
- The Federal Communications Commission's current policy on broadcast content
- The Supreme Court's ruling on FCC indecency enforcement policies
The First Amendment protects pornography and erotic material
The First Amendment to the Constitution reads, “Congress shall make no law... abridging the freedom of speech, or of the press”. The First Amendment rights to free speech and a free press begin as a prohibition on Congress passing laws restricting these freedoms. The Supreme Court has expanded First Amendment rights to encompass all forms of government action at every level. In other words, First Amendment rights are protected from government restriction. This generally applies to government regulation of private expression.
The First Amendment generally protects pornography, with this term being used to mean any erotic material. However, the Supreme Court rejected the claim that there is a constitutional right to provide obscene material for private use, or to acquire it for private use. The right to possess obscene material does not imply the right to provide or acquire it, because the right to possess it "reflects no more than... the law's 'solicitude to protect the privacies of the life within [the home]".
Although indecent speech is protected by the First Amendment, speech in broadcast media has been restricted because of its omnipresence and its accessibility to children. Under the Federal Communications Commission's current policy, broadcast content is indecent if it includes content about sexual or excretory activities, or if it is patently offensive given contemporary community standards. When determining if something is "patently offensive", the FCC considers how explicit or graphic the material is, the length or repetition of the material, and whether the material is intended to titillate or is presented for shock value.
In the case of FCC v. Fox Television Stations, the Supreme Court must determine if the FCC indecency enforcement policies regarding expletives and nudity violate the right to free speech granted in the First Amendment to the U.S. Constitution. Broadcasters argue that the FCC policy is vague because it provides no clear guidelines for what is prohibited, which abridges free speech by requiring broadcasters to avoid a wide variety of content.
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The First Amendment does not protect government speech
The First Amendment to the Constitution states that "Congress shall make no law...abridging the freedom of speech, or of the press". This means that the government cannot restrict the freedom of speech or the press. However, this does not mean that the First Amendment protects government speech. The First Amendment only prevents government restrictions on speech and does not prevent restrictions on speech imposed by private individuals or businesses. For example, Facebook and other social media platforms can regulate or restrict speech hosted on their platforms because they are private entities.
The First Amendment also does not protect certain categories of speech, including obscenity, child pornography, defamatory speech, false advertising, true threats, and fighting words. The Supreme Court has also rejected the claim that there is a constitutional right to provide obscene material for private use or to acquire it for private use.
While the First Amendment does not protect government speech, it does protect the right of government employees to speak out on important issues on their own time, as long as they are speaking as private persons and not as spokespeople for their jobs. Additionally, the First Amendment prohibits government agencies from censoring, discriminating against, or applying rules inconsistently to private speech based on its viewpoint. This principle is called "viewpoint neutrality" and means that local and federal government agencies must allow expression on a given subject from all viewpoints.
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The First Amendment does not constrain speech restrictions imposed by private entities
Although indecent speech is protected by the First Amendment, the First Amendment does not constrain speech restrictions imposed by private entities. The First Amendment to the Constitution reads, 'Congress shall make no law... abridging the freedom of speech, or of the press'. The First Amendment rights to free speech and a free press begin as a prohibition on Congress passing laws restricting these freedoms. The Supreme Court has expanded First Amendment rights to encompass all forms of government action at every level. In other words, First Amendment rights are protected from government restriction. This generally applies to government regulation of private expression. It doesn't constrain government speech.
The First Amendment generally protects pornography, with this term being used to mean any erotic material. However, the Supreme Court rejected the claim that there is a constitutional right to provide obscene material for private use, or to acquire it for private use. The right to possess obscene material does not imply the right to provide or acquire it, because the right to possess it 'reflects no more than... the law's solicitude to protect the privacies of the life within [the home]'.
Speech in broadcast media has been restricted because of its omnipresence and its accessibility to children. Under the Federal Communications Commission's current policy, broadcast content is indecent if it includes content about sexual or excretory activities, or if it is patently offensive given contemporary community standards. When determining if something is 'patently offensive', the FCC considers how explicit or graphic the material is, the length or repetition of the material, and whether the material is intended to titillate or is presented for shock value.
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The Federal Communications Commission's current policy on broadcast content
Although indecent speech is protected by the First Amendment, the Federal Communications Commission's (FCC) current policy restricts indecent speech in broadcast media due to its widespread reach and accessibility to children. The FCC defines indecent broadcast content as that which includes sexual or excretory activities or is patently offensive according to contemporary community standards. When assessing whether something is "patently offensive", the FCC considers the explicitness or graphic nature of the material, its length or repetition, and whether it is intended to titillate or shock.
The FCC's indecency enforcement policies have been challenged in the case of FCC v. Fox Television Stations, where the Supreme Court must determine if the FCC's policies regarding expletives and nudity violate the right to free speech granted in the First Amendment. Broadcasters have argued that the FCC's policy is vague and abridges free speech by requiring them to avoid a wide range of content.
The First Amendment to the Constitution states, "Congress shall make no law... abridging the freedom of speech, or of the press." This has been interpreted to mean that First Amendment rights are protected from government restriction, including government regulation of private expression. However, the Supreme Court has rejected the claim that there is a constitutional right to provide or acquire obscene material for private use.
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The Supreme Court's ruling on FCC indecency enforcement policies
Although indecent speech is protected by the First Amendment, the Supreme Court has rejected the claim that there is a constitutional right to provide obscene material for private use. The First Amendment rights to free speech and a free press begin as a prohibition on Congress passing laws restricting these freedoms. This generally applies to government regulation of private expression. It doesn’t constrain government speech. Speech restrictions imposed by private entities are generally not subject to First Amendment limitations.
In the case of FCC v. Fox Television Stations, the Supreme Court must determine if the FCC indecency enforcement policies regarding expletives and nudity violate the right to free speech granted in the First Amendment to the U.S. Constitution. Under its current policy, the FCC ruled that fleeting expletives on two live awards shows, the CBS "Early Show" and the scripted drama "NYPD Blue" were indecent. The broadcasters argue that the FCC policy is vague because it provides no clear guidelines for what is prohibited, which abridges free speech by requiring broadcasters to avoid a wide variety of content. In general, any abridgement of free speech must be clear and specific enough to prevent subjective and indiscriminate enforcement.
Under the Federal Communications Commission's current policy, broadcast content is indecent if it includes content about sexual or excretory activities, or if it is patently offensive given contemporary community standards. When determining if something is "patently offensive," the FCC considers how explicit or graphic the material is, the length or repetition of the material, and whether the material is intended to titillate or is presented for shock value.
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Frequently asked questions
Yes, the First Amendment to the Constitution protects indecent private speech. However, this does not apply to broadcast media, which can be restricted due to its accessibility to children.
The First Amendment states that "Congress shall make no law... abridging the freedom of speech, or of the press." This means that the government cannot restrict free speech or a free press.
No, the Supreme Court has rejected the claim that there is a constitutional right to provide or acquire obscene material for private use.
