Digitus Impudicus: The Middle Finger and the Law - Wired

2008] Digitus Impudicus 1439
penalty for broadcasting indecent material from $32,500 269 to
$325,000 per incident. 270
The U.S. Code authorizes the FCC to regulate speech transmitted
over broadcast airwaves, including television and radio. 271 Specifically,
the Code prohibits the utterance of “obscene, indecent, or profane
language by means of radio communication.” 272 Pursuant to this
statutory authority, the Commission has implemented regulations
prohibiting the broadcasting of obscene material via radio or television
at any time of day; 273 the regulations also prohibit the broadcasting of
indecent material between six o’clock in the morning and ten o’clock
in the evening. 274 The Commission’s regulations currently do not
apply to cable television or satellite broadcasts. 275
Based on the Commission’s guidance regarding obscenity,
indecency, and profanity, it is likely that the Commission would
punish a broadcaster for displaying the middle finger gesture on
television under its indecency or profanity regulations, but not under
its authority to prohibit obscenity. To determine whether material is
obscene, the Commission uses the test set forth in Miller v.
California; 276 as explained above, it is doubtful that the Commission
could find that the middle finger gesture satisfies this test. Thus, if the
Commission has the authority to prohibit use of the middle finger
gesture on television, it must derive from its ability to regulate
indecency and profanity. Although the Commission has not expressly
269 See Lisa de Moraes, A Wardrobe Malfunction and You’ll Lose Your Shirt, So to
Speak, WASH. POST, June 16, 2006, at C07 (noting President Bush’s belief that this fine
was not effective deterrent to large broadcasters).
270 See Broadcast Decency Enforcement Act of 2005, § 193, Pub. L. No. 109-235,
120 Stat. 491, 491 (2006); see also Peter Baker, Bush Signs Legislation on Broadcast
Decency, WASH. POST, June 16, 2006, at A6 (summarizing legislation).
271 18 U.S.C. § 1464 (2000).
272 Id.
273 Enforcement of 18 U.S.C. § 1464 (restrictions on transmission of obscene and
indecent material), 47 C.F.R. § 73.3999(a) (2002).
274 Id.
275 See, e.g., Complaints Regarding CNN’s Airing of the 2004 Democratic National
Convention, 20 F.C.C.R. 6070, 6070-71 (2005) (distinguishing over-the-air television
and radio signals from cable and satellite programs, because cable and satellite services
are subscription based and, in case of cable television, transmitted over “coaxial cables
or wires”). See generally Joel Timmer, The Seven Dirty Words You Can Say on Cable
and DBS: Extending Broadcast Indecency Regulation and the First Amendment, 10 COMM.
L. & POL’Y 179 (2005) (arguing that recent congressional attempt to extend regulation
of broadcast indecency to cable and satellite television would exceed FCC’s authority
and violate Constitution).
276 413 U.S. 15, 24 (1973). For a discussion of the Miller test, see supra Part II.B.