Scantily Clad Commercial
To: Rice E. Roni, Supervising Attorney, CARDWARE Inc.
RE: Scantily Clad Commercial
The purpose of the memo is to discuss the constitutional rights of freedom of speech regarding to WBLAH’s decision to not air the commercial for CARDWARE line of clothing “Scantily Clad”. The Federal Communications Commission (FCC) and Texas state law will also be discussed. The FCC regulations have room for interpretation when classifying broadcast that might be deemed inappropriate, obscene, indecent, or profane. However, the FCC website (www.fcc.gov/consumers/guides/obscene-indecent-and-profane-broadcasts), clearly define the terms.
The Texas Bill of Rights protects the rights of individuals that can be enforced by law. However, each person’s perception of what is moral, and right will differ. When attempting to outlines these rules and enforce the rules we as citizens use established social norms. These norms also continue to change as society changes. In Article 1, Section 8 of the Texas Bill of Rights it states “Freedom of Speech and Press; Libel. Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.” (The Texas Constitution Article 1: Section 8). The First Amendment of the United States Constitution guarantees the freedom of religion, speech, and the press.
Congress has set limits on the types of programming in terms of the hours it can be broadcast and the content. If it is programming has indecent material, there are guidelines to limit the airing to after midnight and in some cases after 10 pm depending on the station. The FCC guidelines do not protect obscene material; however, it does protect material that is indecent or profane. The 1978 decision regarding the Federal Communications Commission vs. Pacifica Foundation the court identified specific words as indecent, however the ruling did not give specific guidelines to define indecency (First Amendment and Censorship). In reviewing these guidelines, it may seem that CARDWARE’s freedom of speech is being infringed upon by WBLAH. However, WBLAH has the option to air or not air the commercial. The law does not require stations to air all materials submitted. The station has control over the content they choose as they have the option to set specific guidelines or restrictions. WBLAH noted their refusal to air the commercial was due to the content as it was inappropriate for children.
WBLAH might be persuaded to change their position if CARDWARE would outline the specific commercial content, offer to compromise on the airtime of the broadcast and provide a greater understanding of the brand name and content. The name of the brand “Scantily Clad” may bring images of very little clothing and this does not meet the criteria of being obscene or indecent. Even though WBLAH has classified it as inappropriate.
Commercials target specific groups. These groups could be based on gender, age, location, income, or special interests. In the case of Action for Children Television v. Federal Communications Commission, it was argued that parents are not always in the position to exercise effective control over what their children see on television. Restricting the viewing of material has become more difficult with the ease of access to media with the use of smartphones, tablets, and laptops.
WBLAH has the right to accept or refuse any content for airing. However, in the case of CARDWARE’s commercial, there is not a legal reason to refuse the commercial. The refusal appears to be a way of censoring what is broadcast to the viewers. This can be useful in maintaining social norms. In this case, it appears to be a misunderstanding of the commercial content based on the brand name.
Action for Children Television v. Federal Communications Commission. (n.d). Retrieved March 7, 2020 from https://caselaw.findlaw.com/us-dc-circuit/1316587.html
First Amendment and Censorship. (n.d). Retrieved March 7, 2020 from https://entertainmentlaw.uslegal.com/censorship/first-amendment-and-censorship/
Obscene, Indecent, and Profane Broadcast. (n.d.). Retrieved March 7, 2020 https://www.fcc.gov/consumers/guides/obscene-indecent-and-profane-broadcasts
Texas Constitution Article 1 Bill of Rights. (n.d.). Retrieved March 7, 2020 from https://statutes.capitol.texas.gov/Docs/CN/htm/CN.1.htm