The following pertains to question 8 on FACT's 2008 Legislative Candidate Survey, regarding the protection of children from obscene commercials on television.
Background
Senate Bill 0014 and its companion, House Bill 1108, were filed in the 105th General Assembly. It was passed in the Senate but stalled in the House. (Review the final version of the bill as presented to the Civil Practice Subcommittee of the House Judiciary Committee.) The purpose of this bill was to do three things:
- Make clear that it is unlawful to broadcast by public television, cable or satellite, material that is obscene and therefore not protected by the First Amendment.
- Make it unlawful to broadcast by public television, cable or satellite advertisements for the sale of material that is harmful to minors until after 10 p.m. and before 6 a.m.
- Make it unlawful to broadcast commercials that are themselves harmful to minors until after 10 p.m. and before 6 a.m.
The 10 p.m. to 6 a.m. “safe harbor” above is based on safe harbor described in connection with public television broadcasts in Action for Children’s Television v. FCC, cited above.
The “Growing” Problem
As society coarsens, the kinds of material that are illegal by virtue of being “obscene” is shrinking, making material available to children that, in years’ past, they would have been protected from. The United States Supreme Court has recognized this trend:
The more narrow the understanding of what is “obscene,” and hence the more pornographic what is embraced within the residual category of “indecency,” the more reasonable it becomes to insist upon greater assurance of insulation from minors.” (emphasis added) (Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 132 (1989))
State’s Interest
The Circuit Court for the District of Columbia summarized the U.S. Supreme Court’s description of the state’s interest in this area:
[T]he [U.S. Supreme] Court has repeatedly emphasized the Government’s fundamental interest in helping parent exercise their ‘primary responsibility for [their] children’s well-being’ with “laws designed to aid [in the] discharge of that responsibility.” (Citation omitted) This interest includes ‘supporting parents’ claim to authority in their own household’ through ‘regulation of otherwise protected expression.’ (citations omitted) (Action for Children’s Television v. FCC, 58 F.3rd 654, 661 (1995))
The United States Supreme Court has said:
It is evident beyond the need for elaboration that a State’s interest in safeguarding the physical and psychological well-being of a minor is compelling. A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens. Accordingly, we have sustained legislation aimed at protecting the physical and emotional well-being of youth even when the laws have operated in the sensitive area of constitutionally protected right. (New York v. Ferber, 458 U.S. 747, 756-57 (1982))
Numbers of Children Exposed to Indecent Material
The data on broadcasting that the FCC has collected reveal that large numbers of children view television or listen to the radio from the early morning until late in the evening, that those numbers decline rapidly as midnight approaches, and that a substantial portion of the adult audience is tuned into television or radio broadcasts after midnight. We find this information sufficient to support the safe harbor parameters that Congress has draw.
The data collected by the FCC and republished in the Congressional Record for June 1, 1992 indicate that while 4.3 million, or approximately 21% of teenagers (defined as children ages 12 to 17) watch broadcast television between11:00 and 11:30 p.m., the number drops to 3.1 million (15.2 percent) between 11:30 p.m. and 1:00 a.m. and to less than 1 million (4.8 percent) between 1:45 and 2:00 a.m.
We conclude that there is a reasonable risk that large numbers of children would be exposed to any indecent material broadcast between 6:00 a.m. and midnight. (Action for Children’s Television v. FCC (D.C. Circuit 1995))
Why are commercials part of the subject of this bill instead of just the content of regular programming?
While there are means available to parents to protect their children from program content, whether broadcast by public television, cable or satellite, those means (namely VCHIPS and satellite and cable filtering systems) are tied to regular programming and not to commercials that might play during a program. There is not a way to “block” certain commercials, unlike programming. Further, a parent cannot know on what programs certain commercials may be played. |
Advertising Obscene Material
