Will `Indecency' Cops Retire?

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IN two landmark decisions on Nov. 24, the United States Court of Appeals in Washington invalidated Congress's latest attempts to purge ``indecency'' from radio and television. It is now up to the Clinton administration to respect the anti-censorship spirit of these two decisions and abandon 12 years of Reagan-Bush campaigns to impose a shifting and unpredictable ``indecency'' standard on America's audiences.

The first case, Action for Children's Television (ACT) v. Federal Communications Commission (FCC), struck down a law banning the broadcast of any ``indecent'' material except between 6 a.m. and midnight - hours when not only children but most adults are asleep.

The second decision, Alliance for Community Media v. FCC, rejected a convoluted law that pressured cable operators to ban ``indecency'' entirely from public and leased access cable channels - a job the First Amendment plainly barred Congress from doing directly.

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The FCC, charged with enforcing these two censorship laws, had dutifully but unpersuasively defended them on the grounds that government has the power to ``protect'' not only children (of all ages), but even adults, from the asserted evils of ``indecency.'' Yet, as the court observed in the Action for Children's Television case, children vary widely in age, maturity, and ability to comprehend such matters as bathroom humor or sexual innuendo. Parents, not government, must decide what is appropriate for their kids at various ages. As for adults, said the court, the First Amendment protects all our choices in art and entertainment, not just those whose ``listening and viewing habits meet government approval.''

Both cases were sent back to the FCC for further rumination about whether and how ``indecency'' might now be regulated on both broadcast and cable. The agency and the White House should resist the inevitable pressures that will ensue not to seem ``soft'' on pornography, and should make clear to Congress and the American people that the federal government has no business dictating what's acceptable in arts and entertainment.

This will take courage. It's easier for many politicians to fulminate about the evils of ``pornography'' than explain to constituents that in a free society the people, not the government, make choices and set standards.

Like ``obscenity,'' which Justice Potter Stewart could not define although he claimed ``I know it when I see it,'' the FCC's ``indecency'' is an ineffable concept. To be sure, it has something to do with sex and bathroom matters, and it hinges on the vague and subjective question of what is ``patently offensive'' according to ``community standards.'' But in a society as diverse as ours, there cannot be a definable or legally cognizable agreement on what is ``patently offensive,'' or whose ``community standards'' should govern.

THE result, under the FCC's ``indecency'' regime over the past decade, has been a pattern of strange, arbitrary, often outrageous threats and punishments - most notoriously the recent fines, in excess of $1 million, levied by the agency against radio stations that carry the ramblings of ``shock jock'' Howard Stern. Stern's is the most popular show wherever is is broadcast, but in one of those paradoxes that so abound in American censorship, the FCC decided that Stern's sophomoric bathroom humor and obsession with sexual prowess is ``patently offensive'' according to ``community standards.''

Surely our federal government has more important things to do than control its citizens' exposure to sex talk and puerile jokes, not to mention serious programs that never make it to the airwaves because of fears about the government's ``indecency'' patrol. As Judge Harry Edwards wrote, concurring in the ACT case, there is no evidence that minors are ``harmed'' by hearing ``indecent'' programs. There is, moreover, the problem of squaring the FCC's censorship duties with our society's commitment to constitutional principles such as free speech.

Will the FCC and the White House have the courage to get the federal government out of the censorship business? The US Court of Appeals has given them some good reasons. The Opinion/Essay Page welcomes manuscripts. Authors of articles we accept will be notified by telephone. Authors of articles not accepted will be notified by postcard. Send manuscripts by mail to Opinions/Essays, One Norway Street, Boston, MA 02115, by fax to 617 -450-2317, or by Internet E-mail to OPED@RACHEL.CSPS.COM.

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