Part I of this Article describes the statutory conflict. This Part explains each of the rules and includes a detailed discussion of recent broadcast indecency actions including the indecency cases recently decided by the U.S. Court of Appeals and the U.S. Supreme Court. Part II addresses cases specifically involving political broadcast advertisements in which the courts granted immunity or excepted broadcasters of political advertisements from punishment under the indecency prohibition. Part III specifically evaluates the recent political advertisements containing sexually suggestive material, including the anti-Ford and anti-Arcuri advertisements. This Part addresses how courts have handled earlier claims of offensive political speech offering insight into how they might handle future claims.
Part IV of this Article revisits some of the earlier proposals for resolution of the dilemma facing broadcast licensees and offers new solutions to this dilemma.31 This Article reiterates the call for immunity for broadcasters that air political advertisements containing indecent material. In addition to evaluating this proposal, this Article reiterates some other previously suggested resolutions and recommends others. This Article recommends the following, in order of preference: (1) amend 18 U.S.C. § 1464 to expressly except political advertisements; (2) grant immunity to broadcasters; (3) repeal the indecency rules altogether or make them applicable to all services; (4) change the definition of indecent material; (5) amend 47 U.S.C. §§ 312 and 315 to prohibit indecent material in political broadcast advertisements; (6) permit channeling of indecent advertisements; (7) require or permit channeling of all political advertisements to the safe harbor; (8) wait for the perfect case and decide then; or (9) repeal 47 U.S.C. §§ 312 and 315 and the Zapple Doctrine.
In the absence of congressional action, courts could carve out a judicially created exception to the indecency statute as it has done in other contexts. This Article suggests that, despite the U.S. Supreme Court's holding in Fox Television Stations, which upheld the FCC's policy regarding fleeting indecent materials, the FCC must refine its indecency definition and regulatory scheme not only to address constitutional First Amendment issues, but also to offer a more workable rule for broadcasters to follow in making programming decisions.