The open fracture suffered by Kevin Ware during the recent NCAA basketball tournament was so horrific it brought his coach to tears. But can TV stations be punished for repeatedly showing the injury?
We know after the last controversy at a major televised championship—the infamous wardrobe malfunction at the 2004 Super Bowl—that the Federal Communications Commission strictly regulates obscenity, indecency, and profanity.
But given the likelihood of cellphone cameras at crime scenes and other opportunities to record guts and gore, what are the regulations regarding the broadcasting violence on television, and what does the First Amendment have to say about the matter?
The FCC is a federal government agency that regulates interstate and international communications by radio, television, wire, satellite, and cable.
When it comes to the government’s ability to limit communication, the First Amendment states in relevant part: “Congress shall make no law … abridging the freedom of speech, or of the press.”
Based on that premise, one would imagine that the FCC would not have much to do. Indeed, the FCC itself discusses its limited role in regulating broadcast communication based on the fundamental First Amendment privileges enjoyed by the American public:
The FCC is barred by law from trying to prevent the broadcast of any point of view. The Communications Act prohibits the FCC from censoring broadcast material, in most cases, and from making any regulation that would interfere with freedom of speech. Expressions of views that do not involve a “clear and present danger of serious, substantive evil” come under the protection of the Constitution, which guarantees freedom of speech and freedom of the press and prevents suppression of these expressions by the FCC.
As you may imagine, that is not the end of the story–or the “wardrobe malfunction” of the 2004 Super Bowl would have had no more repercussions than the electricity malfunction of the 2013 Super Bowl.
The FCC is, despite the above limitation, not without regulatory power. Supreme Court decisions have found that even indecent and profane material is protected by the First Amendment.
See, for example, Justice Harlan’s opinion in the 1971 case Cohen v. California, that “one man’s vulgarity is another man’s lyric. That does not mean, however, that its broadcast cannot be restricted to times when children are not likely to be watching.
For this reason, the FCC limits broadcasting of such material to the hours between 10 p.m. and 6 a.m. Courts have ruled that obscene material, on the other hand, is not protected by the First Amendment and therefore the FCC can—and does—prevent it from being broadcast at all.
Which brings us to the question: How does the FCC define the level at which violence, blood, or gore is so gruesome that its hours of broadcast may be regulated?
You may be surprised to know that the FCC does not currently regulate violence on television. While the FCC issued a report in 2007 on the effects of violence on television in which it implored Congress to create regulations to rein in violence on television, to date no such regulations have been created granting the FCC regulatory power over the broadcasting of violence.
Instead, decisions about the appropriateness of violence on television are left to each network to self-regulate and to each parent to monitor.
So while networks that broadcast uncovered body parts may face FCC sanctions, their broadcasting of bloodied body parts, on the other hand, carry no such potential penalties.
- Cohen v. California, 403 U.S. 15 (1971). Read online at oyez.org.
Amy E. Feldman is the legal education consultant to the National Constitution Center. She is the general counsel of The Judge Group, Inc., a leading global professional services based in Philadelphia.
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