The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
That's what happened in yesterday's In the matter of WDBJ Television. WDBJ broadcast a news story at about 6 p.m. about a porn star who was volunteering with the local rescue squad. To illustrate the story, they took an image of the star from a porn site (a "video in which only her face and shoulders can be seen" in which "she 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"). But "[t]he website, which was partially displayed along with the video image, is bordered on the right side by boxes showing video clips from other films," and,
One of these video clips, displayed in a box, contains the image of sexual activity involving manipulation of an erect penis. Although the box does not show the entire body or face of the apparently nude male depicted, the image shows a hand moving up and down the length of the shaft of the erect penis.
The image was apparently displayed only for about three seconds, and the station claimed it was unintentional: the person who got the material from the site didn't notice the video clips on the side, and the editors reviewed the story using software that for some reason didn't show the entire screen content. Nonetheless, the FCC concluded that the WDBJ was culpable enough, and should face the statutory maximum $325,000 fine:
We also consider WDBJ to be sufficiently culpable to support a forfeiture. WDBJ broadcast material obtained from an online video distributor of adult films but failed to take adequate precautions to prevent the broadcast of indecent material when it knew, or should have known, that its editing equipment at the time of the apparent violation did not permit full screen review of material intended for broadcast. In addition, the indecent material was plainly visible to the Station employee who downloaded it; he simply didn't notice it and transmitted it to Station editors who reviewed the story before it was broadcast.
Note that Justices Ginsburg and Thomas have recently argued that TV broadcasting should be treated as fully protected under the First Amendment, and that the indecency restrictions should generally be unconstitutional (though that would still leave the question whether the material displayed here—when displayed to unwilling viewers and in a place where children will see it—was not just indecent but obscene and thus still unprotected, when distributed). Still, the current First Amendment rule appears to be that the broadcasting of nudity, and especially of visible genitals being sexually stimulated, is not constitutionally protected.
Thanks to Hal Protter for the pointer.