Document Type



Summer 7-24-2012


indecency, Federal Communications Commission, FCC, political broadcast advertisements, fleeting expletives




Political Advertisements in the Era of Fleeting Indecent Images and Utterances by LaVonda N. Reed-Huff This article is both timely and beneficial to the legal profession in its analysis of the Federal Communications Commission’s (the “FCC”) efforts to craft regulations regarding broadcast indecency and to address the prevalence of increasingly sexually suggestive material in political broadcast advertisements. This five-part article explores the statutory dilemma facing broadcasters who are presented political broadcast advertisements that contain indecent material. This dilemma is presented by the intersection of three federal statutes. One federal statute, 47 U.S.C. § 312, grants candidates for federal elective office reasonable access to broadcast stations in furtherance of their political campaigns. Another statute, 47 U.S.C. § 315, provides legally qualified candidates for federal, state, and local office equal opportunities to use broadcast stations as are afforded their opponents. This section also prohibits broadcast licensees from censoring political broadcast material. Finally, 18 U.S.C. § 1464 prohibits the broadcast of obscene, indecent, and profane material over the public airwaves. The racy and sexually suggestive political broadcast advertisements sponsored by some candidates in recent years suggest that the possibility of a broadcaster having to determine whether to air a candidate-sponsored political advertisement that actually could be defined as indecent is not so far-fetched. This article highlights several recent political advertisements and suggests that the dilemma created by this loophole in the statutes must be addressed. One such sexually suggestive television advertisement appeared in 2006 in Tennessee endorsing Republican Bob Corker in his race against Democrat Harold Ford, Jr. for a U.S. Senate seat. The Corker advertisement used sexually suggestive visual images to suggest that Ford frequented wild sex parties and had wild sexual liaisons. In the advertisement, the bare shoulders and face of an otherwise seemingly unclothed young blonde woman appeared on the screen as the young blonde winked and purred into the camera that she had previously met Ford at a Playboy party. The advertisement closed with another shot of the still questionably clothed young blonde teasing Ford to call her. Ford lost the election. Another television advertisement broadcast in New York in the same year endorsed Republican Raymond Meier in his U.S. congressional campaign against Democrat Michael Arcuri. The advertisement opened with superimposed images of a woman who appeared to be an exotic dancer straddling a chair and seductively dancing while purring “Hi, sexy…” Meanwhile, the target of the advertisement, Arcuri stared in the dancer’s direction while lasciviously and seductively licking his lips. The advertisement accused Arcuri of using Oneida County, New York taxpayer dollars to satisfy his sexual desires while on official business by calling an adult fantasy telephone hotline and then charging the call to his hotel room. Despite this advertisement, which ran in the days leading up to the election, Arcuri defeated his opponent to win the congressional seat. In an era where the media appears to take great fascination in the sex lives of elected officials and more so in actually catching and embarrassing them for these exploits, we are certain to see more of this type of material emerge in political campaign advertisements. In fact, it is possible that in the 2010 Louisiana U.S. Senate race, voters will have to choose between an adult film star and an incumbent senator who has been implicated in a Washington prostitution scandal. The possibilities for campaign advertisements containing indecent material are endless. This article does not assert that either the anti-Ford or the anti-Arcuri advertisements squarely falls within the subject matter scope of the FCC’s current definition of indecency, but that they do signal a gradual yet significant shift toward the willingness of political candidates and their supporters to pay for campaign advertisements with a sexual tinge. This article asks a question that has been asked by other scholars—what is a broadcaster to do in the event it is presented with political material that might fall within the subject matter scope of the FCC’s definition of indecency. It offers a number of new judicial, congressional, and agency resolutions to this conflict taking into consideration recent court cases dealing with the issue of broadcast indecency and fleeting expletives and images. Part I of the article describes the statutory conflict. Part II addresses recent broadcast indecency actions including the indecency cases recently decided by the Second and Third Circuits and one currently pending before the U.S. Supreme Court addressing the FCC’s authority to sanction licensees for the broadcast of isolated or fleeting indecent material. Part III specifically evaluates recent political advertisements containing sexually suggestive material. Part IV addresses how courts have handled earlier claims of offensive political speech offering insight and how they might handle future claims. Part V of this article revisits some of the earlier proposals for resolution of the dilemma facing broadcast licensees and will suggest others. This article reiterates the call for immunity for broadcasters that air political advertisements containing indecent material. In addition to evaluating these earlier proposals, this part offers additional resolutions of the issue that have yet to be considered. This article addresses the recent struggle of the FCC and the courts to define indecency and to defend the continued relevance of current indecency rules in light of a converging and ever-changing technological environment. The FCC has on more than one occasion sidestepped ruling on the issue where the material was determined not to have passed the threshold satisfying the definition of indecency. None of these prior cases clearly answers the question of a broadcaster’s liability in the event a broadcaster airs or chooses not to air a political advertisement that actually is determined to be indecent, profane, or obscene as those terms have come to be defined.

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