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When is Enough Too Much? The Broadcast Decency Enforcement Act of 2005 and the Eighth Amendment’s Prohibition on Excessive Fines

Abstract

The next slip of the tongue or of the blouse will hit broadcasters where it hurts: their wallet. With the recent passage of the Broadcast Decency Enforcement Act of 2005 ( BDEA ), Congress raised potential fines ten-fold in an attempt to clean up the airwaves and prevent the televised snafus that have occurred with increasing frequency during the past five years. From the broadcast of a barely covered breast during the 2004 Super Bowl to the on-air announcement of a four-letter expletive on a prime-time awards show, indecent expression has attracted the attention of the general public, advocacy groups, the Federal Communications Commission ( FCC ), and even Capitol Hill. In 2004 alone, the FCC assessed more than 7.9millioninindecencyfines,upfromamere7.9 million in indecency fines, up from a mere 440,000 in fines in 2003. The cost of airing future indecent material increased exponentially when President George W. Bush signed the BDEA into law on June 15, 2006. Although the number of fines being issued had already increased, the FCC and a majority of Congress did not believe that the relatively low maximum fine per incident was enough to prevent multi-billion dollar broadcasters from choosing to air indecent content and pay what to them was a nominal fine. The Broadcast Decency Enforcement Act of 2005, which had been floating around Capitol Hill in various iterations since November 2004, thus raised the maximum fine per violation ten-fold, from 32,500to32,500 to 325,000. Consequently, broadcasters now face liability of up to $3 million in indecency fines for one syndicated broadcast aired on multiple stations in multiple markets

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This paper was published in Duke Law Scholarship Repository.

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