A U.S. Court of Appeals on Friday struck down the Federal Communications Commission's controversial rule that radio broadcasters may air indecent material only after midnight.
The three-judge panel unanimously overturned the agency's decision last year that allowed the broadcast of indecent material only between midnight and 6 a.m. in a effort to protect children."We agree that the FCC's midnight advice . . . was not adequately thought through," Judge Ruth Bader Ginsburg said in the 25-page opinion.
"We agree that, in view of the curtailment of broadcaster freedom and adult listener choice that channeling entails, the commission failed to consider fairly and fully what time lines should be drawn," she said.
"We hold that the FCC failed to adduce evidence or cause, particularly in view of the First Amendment (free speech) interest involved, sufficient to support its hours of restraint," Ginsburg said.
The ruling was a major victory for the broadcasting industry and a number of public interest groups which had filed suit challenging the FCC's rule.
The industry was unsuccessful in asking the FCC to set the hour at 10 p.m. and to get more specific guidance on what constitutes indecency.
FCC Chairman Dennis Patrick said in a statement that he would move quickly to begin a proceeding to consider when programs containing indecent material may now be broadcast.
The court overturned two warnings given by the FCC to the student-run radio station KCSB-FM in Santa Barbara, Calif., that broadcast the song "Makin' Bacon," and to a Pacifica Foundation Inc. radio station in Los Angeles that broadcast a play titled "Jerker" about the sexual fantasies of homosexual men.
Both broadcasts took place after 10 p.m. but before midnight.
The appeals court ordered the FCC to reconsider the two cases, taking into account that the agency's objective is not to be a censor but to assist parents in controlling the material young children hear, and that the speech at issue was constitutionally protected.
"Indecent but not obscene material qualifies for First Amendment protection whether or not it has serious merit," Ginsburg said.
The appeals court let stand the FCC's warning to radio stations in New York and Philadelphia that feature outspoken disc jockey Howard Stern, whose talk show airs in the morning when children more likely will be listening.
According to the FCC, Stern dwelled "on sexual and excretory matters in a way that was patently offensive" and violated local community standards of decency for broadcasting.
The FCC defined as indecent "language or material that depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs."