August 28, 2012 4:18pm PT by Eriq Gardner
Republican Party Platform Advocates More TV Obscenity Prosecutions
Would a Mitt Romney administration mean more fines for cable and satellite companies and even TV executives being jailed for distributing obscene and pornographic material?
As the Republican National Convention kicks off Tuesday in Tampa, Fla., Morality in Media is crowing over convincing the GOP to adopt platform language calling for a crackdown on pornography.
Although the official text of the platform hasn't been released, Morality in Media says in a press release that the previous platform only targeted child pornography but will now read, “Current laws on all forms of pornography and obscenity need to be vigorously enforced.”
Morality in Media CEO Patrick Trueman says this means that prosecutors should be targeting obscene material distributed on the Internet, on hotel TV, on cable and satellite TV and in retail shops.
Asked to identify examples of pornography on cable and satellite that Morality in Media believes should be subject to legal scrutiny, Trueman tells The Hollywood Reporter: "Your major cable and satellite TV companies all have pay-per-view porn channels that distribute hardcore pornography. These companies -- Verizon, Comcast, etc. -- are therefore subject to federal obscenity laws."
Trueman identifies 18 USC Sections 1465 and 1468 as two examples of laws on the books that have been ignored for too long. The latter carries penalties of up to two years in jail for anyone who "utters any obscene language or distributes any obscene matter by means of cable television or subscription services on television," and Trueman believes that cable companies should hand over their profits if found guilty of distributing obscenity.
"The [TV] companies are certainly aware of the laws, but without action by the Department of Justice, they appear willing to abuse them because of the massive profits that the porn channels generate" says Trueman, who formerly worked at the Justice Department under President Ronald Reagan.
Assuming he's right, and Romney is ushered into power, should TV executives be worried?
Trueman previously has said he has gotten assurances from Romney's legal policy director about the candidate's commitment to bringing more prosecutions. On the other hand, there's some case law that suggests a crackdown over obscenity on cable and satellite TV would be tough no matter who is in office.
In 2000, in United States v. Playboy Entertainment Group, the Supreme Court struck down a provision of the Telecommunications Act that required cable TV operators to scramble or block channels dedicated to sexually oriented programming during certain hours of the day when children could see them.
There is "a key difference between cable television and the broadcasting media," said the majority opinion authored by Justice Anthony Kennedy. "Cable systems have the capacity to block unwanted channels on a household-by-household basis. Targeted blocking is less restrictive than banning, and the government cannot ban speech if targeted blocking is a feasible and effective means of furthering its compelling interests."
Broadcast lawyers say the decision, along with many years of FCC rulemaking, make clear that cable and satellite TV are different than network television. Regulating them for content? "The Supreme Court has said you can't do it," says David Oxenford at Wilkinson Barker Knauer.
No doubt Trueman and many social conservatives disagree.
But on another point, both sides could find common ground -- at least in legal analysis.
In June, the Supreme Court handed down its latest review of the FCC's indecency protocol, finding that the agency violated the due process of broadcast networks by failing to give advance notice on policies concerning isolated instances of fleeting naughty words and nudity on television. However, the high court stopped short as some networks and First Amendment lawyers had wished of finding the regulation of indecency to be unconstitutional.
As a result, there's still room for a Romney administration to appoint tough FCC commissioners to raise hell for TV networks over obscenity.
"If they gave proper notice and spelled out the rules in advance, the FCC could still be aggressive," says Oxenford.