Are the FCC obscenity/indecency regulations constitutional?
Supreme Court precedents confirm the constitutionality of the FCC regulation. Obscenity, as defined by the Court in the 1973 case of Miller v. California, refers to works that, taken as a whole, appeal to the prurient interest; contain patently offensive depictions or descriptions of specified sexual conduct; and on the whole have no serious literary, artistic, political, or scientific value. Because the Court has ruled that obscenity is not protected speech, the FCC may ban it entirely. By describing the “whole performance” of Timberlake and Jackson as “onstage copulation,” FCC Chairman Powell may have been laying the groundwork for an obscenity charge. Such a charge would likely fail, however, because the performance had serious artistic value. The portion of the obscenity test that looks to artistic value is not meant to distinguish between good and bad art or even between highbrow and lowbrow art, but between art that presents itself as art and “art” that is, in reality, a thinly v
