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Court Rejects 24-Hour Ban on Broadcast Indecency

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WASHINGTON--The U.S. Supreme Court last week refused to allow the Federal Communications Commission to implement a total ban on indecency on radio and television.

The Court on March 2 let stand a ruling by the U.S. Court of Appeals for the District of Columbia Circuit that a federal law banning such material violates the First Amendment's guarantee of free speech.

The Court has ruled in the past that the Constitution does not protect "obscene'' speech--that which appeals to "prurient'' interest and lacks artistic, political, or scientific value. But it has afforded some protection to "indecent'' speech, which it defines as speech that may contain vulgarity but still has serious value.

The Bush Administration argued that an absolute ban on indecent broadcasting was necessary because children "are present in the audiences for radio and television broadcasts at all times of the day and night.''

The Justices voted 6 to 2 not to consider the Administration's appeal in F.C.C. v. Action for Children's Television, (Case No. 91-952). Justices Byron R. White and Sandra Day O'Connor wanted to hear the government's appeal, but four votes are necessary to accept a case.

Justice Clarence Thomas did not vote on the petition because he was a member of the three-judge panel of the appeals court that overturned the ban last year.

The lower court ruled unanimously that the 24-hour ban on indecency was unconstitutionally vague, and that there was a need for a late-night "safe harbor'' period during which indecent material could be broadcast. (See Education Week, May 29, 1991.)

The F.C.C. has experimented with such time periods beginning at 8 P.M., 10 P.M., and midnight, but none has been upheld by the courts.

In 1988, the Congress passed legislation requiring the F.C.C. to adopt a 24-hour ban on indecency. The commission did so, but the ban has not been enforced pending the outcome of this case.

The ban was challenged by a coalition of broadcasters and free-speech advocates led by Action for Children's Television.

The coalition said parents, not the government, should supervise their children's viewing and listening habits. It also said the ban could be extended to important but explicit programming on AIDS and other controversial topics.

Illegal Aliens

In other action last week, the Court agreed to decide whether the federal government may detain illegal alien children whose parents, other adult relatives, or guardians are not available to care for them.

The Court agreed to review a ruling by the U.S. Court of Appeals for the Ninth Circuit that said the detention policy was unconstitutional.

The Immigration and Naturalization Service has a policy requiring the release of children facing deportation hearings to their parents, guardians, or adult relatives. If no one is available, however, the I.N.S. detains the children in a juvenile facility that is supposed to provide education, among other services. In 1990, the agency took custody of more than 8,500 children who faced deportation.

The policy was challenged by several child-welfare organizations, which said the I.N.S.'s rationale of protecting the children by jailing them "sharply departs from accepted child welfare standards.''

The organizations said in court papers that the I.N.S. altered its policy in December to allow for the release of children without adult supervision to foster homes and other similar facilities.

The federal government contends in its appeal that the appellate court should have deferred to the I.N.S.'s judgment that the detention policy is in the best interest of the children. The case is Barr v. Flores, (No. 91-905).

Also last week, the High Court ordered the U.S. Court of Appeals for the Eighth Circuit to re-examine an employment-discrimination case to determine whether the Civil Rights Act of 1991 should apply retroactively.

The Bush Administration has opposed making the new law apply to cases that were pending when it was enacted. The case is Hicks v. Brown Group Inc., (No. 91-1116).

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