The first amendment of the United States Constitution reads the following:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The freedom of speech is detailed in the first amendment. Since the inception of radio and television broadcasting, there has been a continuous struggle between the government and broadcasters. That struggle involves the right of free speech and the right of the government to censor material that is indecent or obscene. Who regulates and decides what is indecent or obscene? These questions have evolved through many important cases over the last century. Today the Miller test, derived from Miller v. California, is used to decide the material in question.

It is first important to know what it means for material to be obscene and what it means for material to be indecent. They are not the same thing, and obscenity is considered a more serious offense. The modern definition of “obscenity” is material that is legally obscene and is

1. An average person, applying contemporary local community standards, finds that the work, taken as a whole, appeals to prurient interest.

The first rule prohibiting obscene broadcast in radio came about with the Federal Radio Act of 1927. The act was designed to regulate in "the public interest, convenience, or necessity."8 With the Federal Communications Act of 1934, the television media joined the radio medium in terms of regulation. In 1970, the issue of indecency in radio cropped up In re WUHY-FM Eastern Education radio 24 FCC 2d 48. In this case a Philadelphia station aired a discussion with Jerry Garcia, headman for rock group, The Grateful Dead. In the interview Garcia spoke about a many number of topics and used the words “shit” and “fuck”. Although not obscene, the FCC determined the speech to be patently offensive and that language like that would “undermine the usefulness of radio to millions”9.

not protected under the First Amendment. Obscene material is also known as hard-core pornography . The modern definition of “Indecent material reads; Material that may be sexually graphic but is protected by the first amendment. Indecent Material is also referred to as adult material or sexually explicit material. Many laws ban the sale or distribution of indecent material to minors. Such material may, however, be freely distributed among adults1.

Since the Pacifica ruling, the FCC has still maintained that obscenity and some indecency on the radio and television is illegal. However, it is now permissible to broadcast indecent material between the hours of 10 pm and 6 am. The FCC has tried to ban all indecent speech in broadcast but because indecent speech is protected by the first amendment, they have never been successful. Currently the FCC defines indecency as “language of material that, in context, depicts of describes, in terms patently offensive as measured by contemporary community broadcast standards for the broadcast medium, sexual or excretory organs or activites11. If found guilty of airing indecent speech the FCC has the power to revoke a station license, impose a monetary forfeiture, or issue a waning for the broadcast. One person familiar with the FCC and in monetary fines in particular is disc jockey Howard Stern. Stern one of the most popular on air personalities in history, and his station has been fined $1.7 million for airing material that was indecent. He has been accused of a number of things including making indecent remarks on National Day of Remembrance after the September 11th tragedy in America12.

Some topics in this essay:
Supreme Court, Miller Test, Miller California, Communications Act, United Constitution, Currently FCC, George Carlin’s, Justice Stevens, Newport Beach, Pacifica Foundation, supreme court, broadcast medium, patently offensive, miller test, radio television, spectrum scarcity, indecent obscene, roth-memoirs test, federal communications, indecent material, utterly redeeming social, landmark miller california, speech protected amendment, due spectrum scarcity, communications act 1934,