Freedom of Speech and Press: Exceptions to the First Amendment
Congressional Research Service 22
be accomplished “‘by narrowly drawn regulations without unnecessarily interfering with First
Amendment freedoms.’ It is not enough to show that the government’s ends are compelling; the
means must be carefully tailored to achieved those ends.”
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Thus, the government may prohibit the sale to minors of material that it deems “harmful to
minors” (“so called ‘girlie’ magazines”), whether or not they are not obscene as to adults.
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It
may prohibit the broadcast of “indecent” language on radio and television during hours when
children are likely to be in the audience, but it may not ban it around the clock unless it is
obscene.
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Federal law currently bans indecent broadcasts between 6 a.m. and 10 p.m.
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Similarly, Congress may not ban dial-a-porn, but it may (as it does at 47 U.S.C. § 223) prohibit it
from being made available to minors or to persons who have not previously requested it in
writing.
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The government’s ability to restrict speech in order to protect children is not unlimited, however.
Reno v. American Civil Liberties Union, the Supreme Court declared unconstitutional two
provisions of the Communications Decency Act (CDA) that prohibited indecent communications
to minors on the Internet.
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The Court held that the CDA’s “burden on adult speech is unaccep-
(...continued)
Inc. v. U.S., 30 F. Supp. 2d 702, 716 (D. Del. 1998); aff’d, 529 U.S. 803 (2000). By contrast, in cases not involving
access of minors to sexually explicit material, the Supreme Court generally requires that the government, to justify a
restriction even on speech with less than full First Amendment protection, “must demonstrate that the recited harms are
real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.”
Turner Broadcasting System v. FCC, 512 U.S. 622, 664 (1994) (incidental restriction on speech). See also, Edenfield v.
Fane, 507 U.S. 761, 770-771 (1993) (restriction on commercial speech); Nixon v. Shrink Missouri Government PAC,
528 U.S. 377, 392 (2000) (restriction on campaign contributions).
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Id. In the case of content-based regulations, narrow tailoring requires that the regulation be “the least restrictive
means to further the articulated interest.”
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Ginsberg v. New York, 390 U.S. 629, 631 (1968). The Supreme Court held that this standard does not extend to
violent speech. Brown v. Ent. Merch. Ass’n, 131 S. Ct. 2729 (2011).
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Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978); Action for Children’s
Television v. Federal Communications Commission, 58 F.3d 654 (D.C. Cir. 1995) (en banc), cert. denied, 516 U.S.
1043 (1996). The Supreme Court has stated that, to be indecent, a broadcast need not have prurient appeal; “the normal
definition of ‘indecent’ refers merely to nonconformance with accepted standards of morality,” Pacifica, 438 U.S. at
740. The FCC holds that the concept “is intimately connected with the exposure of children to language that describes,
in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or
excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the
audience.” Id. at 732. The FCC applied this definition in a case in which the singer Bono said at the Golden Globe
Awards that his award was “f[***]ing brilliant.” In another case involving “fleeting expletives,” however, the U.S.
Court of Appeals for the Second Circuit held “that the FCC’s new policy regarding ‘fleeting expletives’ is arbitrary and
capricious under the Administrative Procedure Act.” Fox Television Stations, Inc. v. Federal Communications
Commission, 489 F.3d 444 (2d Cir. 2007). The Supreme Court, however, reversed the Second Circuit’s decision,
finding that the FCC’s explanation of its decision was adequate; it left open the question whether censorship of fleeting
expletives violates the First Amendment. Federal Communications Commission v. Fox Television Stations, Inc., 129 S.
Ct. 1800 (2009).
Similarly, the FCC fined broadcast stations for broadcasting Janet Jackson’s exposure of her breast for nine-sixteenth
of a second during a Super Bowl halftime show, but a federal court of appeals overturned the fine on non-constitutional
grounds. CBS Corp. v. FCC, 535 F.3d 167 (3d Cir. 2008). For additional information, including an analysis of whether
prohibiting the broadcast of “fleeting expletives” would violate the First Amendment, see CRS Report RL32222,
Regulation of Broadcast Indecency: Background and Legal Analysis, by Kathleen Ann Ruane.
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See, “Speech on Radio and Television.”
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Sable Communications of California, Inc. v. Federal Communications Commission, 492 U.S. 115 (1989); Dial
Information Services v. Thornburgh, 938 F.2d 1535 (2d Cir. 1991), cert. denied, 502 U.S. 1072 (1992).
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521 U.S. 844 (1997).