Report No. 109
5.8. The constitutional question.-
This determined the question whether the statute in issue authorised the Commission to regulate the speech at issue. The constitutional question still remained, namely, would the interpretation placed by the Supreme Court forbid constitutionally accepted speech? Mr. Justice Stevens isolated two characteristics of the broadcast media to justify lesser constitutional protection for the airing of indecent material: (1) the broadcast media are a uniquely pervasive presence, intruding into the protected enclave of the home; and (2) broadcasts are uniquely accessible to unsupervised children.
A learned commentor, commenting on the above case,1 expressed the view that while the privacy argument, put forth by Justice Stevens, had some weakness, the argument of protection of the young children might be stronger. The comment further states that the case must not be read as "permissive", in the sense of defining the inner core of the Federal Communications Commission's power to regulate indecent speech, but must be read rather as "restrictive" and as marking the outer limit of that power. The comment further points out that the case authorises "time zoning" of broadcast, only when the broadcast-(1) uses language offensive to most people in depicting sexual or excretory activities, (2) uses that language not incidentally, but repetitively, (3) is at the time of the day when children are likely to be in the audience, and (4) is likely to influence children.1
1. Supreme Court 1977 Term, (1978) 92 Harvard Law Review 57, 162.
2. F.C.C. v. Pacifica Foundation, (1978), 98 S Ct 3026 (3035, 3040, 3041), notes 29 and 3052.