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Opinion: Indecency fines for WDBJ Roanoke, Va., violate the First Amendment

March 27, 2015 By Harry A. Jessell

The FCC’s fine of WDBJ Roanoke, Va., for inadvertently including three seconds of a Web promo for a porno in a news story once again demonstrates the second-class status of broadcasting. It is absurd that broadcasting is still subject to such rules when the nearly equally pervasive Web is absolutely loaded with all manner of explicit sexual content that goes far, far further. Cable, too, is much worse than broadcasting in spewing out programming offensive to many Americans.

When I first saw the FCC order fining Schurz's WDBJ Roanoke-Lynchburg, Va., $325,000 for broadcast indecency, I frankly didn't have much sympathy for the station. I figured that the offending story about an ex-porn star joining a local rescue squad was another attempt by a station to pump up the ratings with a little gratuitous sex.

But after looking at the station's response to the FCC inquiry and a transcript of the story, I see that the story, which aired in July 2012, is legit. It seems that some people around Cave Spring apparently didn't like having an ex-porn star on the rescue squad and were trying to get her bounced from it.

That should help Schurz in trying to convince the FCC to rescind the fine or to reduce it considerably. A third of a million dollars is a big hit, especially one in DMA 67.

As Schurz said in response to the FCC inquiry, as part of a bona fide newscast, the story is deserving of the FCC's "utmost restraint" in enforcing its indecency rules.

But even if the story was pointless and the sex gratuitous, WDBJ still deserves the full protection of the First Amendment. All programming, news or entertainment, should be beyond the reach of federal censors. The FCC should practice total restraint.

Look, Schurz clearly screwed up.

I have not seen the story as broadcast, but I have read descriptions of it. The story introduces the then 29-year-old Harmony Rose (nee Tracy Rolan) by showing a clip taken from a porn site that distributed her work.

The clip is sexually suggestive. Here's how the FCC described it: "[S]he has her finger in her mouth, moving it up and down on her tongue, with her lips partially open and then closing as she appears to suck on her finger."

That alone may have been enough to rile up some folks along the Blue Ridge Mountains as they were settling down for dinner on a nice summer evening.

But it wasn't the pictures of Ms. Rose that triggered the real outrage and the fine. It was what else was in the footage taken from the website.

If we are to believe the station, when the photographer shot the footage of Rose on the site, he inadvertently included in it a small box on the side of the Web page showing a clip for another film. The box showed, in the words of the FCC, "a naked, erect penis and sexual manipulation."

Nobody at the station noticed so when the story aired so did the penis and the hand for about three seconds, which isn't long, but is long enough. Viewers didn't miss it and, as I said, many were not happy. Their complaints made their way to the FCC.

The FCC said that those three seconds met its two-pronged test of determining whether something was indecent. First, it depicts in context a sexual organ and sexual activity and, second, it is patently offensive as measured by contemporary community standards.

I said above that broadcasters deserve the full protection of the Constitution, but, of course, they don't have it. They still labor under an antiquated law and FCC implementing rules that treat stations like second-class citizens under the First Amendment.

It is absurd that broadcasting is still subject to such rules when the nearly equally pervasive Web is absolutely loaded with all manner of explicit sexual content that goes far, far beyond anything seen in broadcasting, including those three seconds on WDBJ.

It's all there for any curious and enterprising 10-year-old with a computer and broadband connection. Cable, too, is far worse than broadcasting in spewing out programming offensive to many Americans.

Clean-up-the-media organizations like the Parents Television Council target broadcasting only because they can, only because broadcasting is held to the higher and discriminatory legal standard.

A series of court decisions over the years has narrowed the FCC's ability to regulate indecency. It is on those decisions that Schurz had pinned its hopes of persuading the FCC not to impose a fine on WDBJ.

In addition to arguing for utmost restraint from the FCC because the content in question was news, Schurz said the FCC's new "egregious" standard for judging indecency is no less ambiguous than the old standard thrown out by the Supreme Court last year. Plus, it said, under the same court ruling, the FCC has yet to establish a clear basis for penalizing a station for "fleeting indecency" like that of the WDBJ broadcast.

Schurz has some options, none particularly good. My guess is that it will appeal the fine at the FCC. It won't be easy. It will have to come up with some sparkling, new arguments. If it does appeal, it would help if other broadcasters lent their support. If it can happen to a broadcaster like Schurz, it can happen to anyone.

I do believe the station's story. I don't think the reporter, the photographer, the news director or any producer intentionally included the offending images in the story as some kind of joke.

But it really shouldn't matter.

Regulating indecency in broadcasting should be as unconstitutional as it is in publishing, the movies, the Internet and every other medium.

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