FACT CHECK: Can You Smoke Marijuana On TV?

David Sivak | Fact Check Editor

Twitter users wondered whether CNN would be fined after it aired a New Year’s segment that showed the recreational use of marijuana.

“Is that legal to do on tv? @FCC,” asked one user.

“Why isn’t FCC stepping in?” asked another person.

“Get ready for FCC fines. Engaging in illegal activity while broadcasting,” said one user.

The Daily Caller News Foundation decided to investigate whether a cable news network can broadcast the use of drugs.

Verdict: True

The Federal Communications Commission (FCC) does not regulate drug use on television, and cable networks are immune from indecency regulations altogether.

Fact Check:

CNN aired a controversial segment Sunday in which a reporter visited a “paint and puff” New Year’s party in Colorado, where the recreational use of marijuana is legal.

Many people tweeted at the FCC twitter handle to report the segment, but the agency only regulates sexual material and profanity on television. “Complaints about broadcast content involving smoking or drug use, for example, do not come within the Commission’s statutory authority over indecency,” reads the FCC website.

The same goes for violence on television – the FCC does not regulate it.

The FCC limits sexual content and profanity to what it calls the “safe harbor” hours of 10 p.m. to 6 a.m., when children are less likely to be watching.

ABC faced a $1.4 million indecency fine in 2008 for airing an episode of “NYPD Blue” that showed a woman’s buttocks, although the Supreme Court ruled against the FCC because the network did not receive enough notice that momentary nudity could be considered “actionably indecent.”

The FCC bans obscene content like hardcore pornography from the airwaves altogether.

The distinction between indecent and obscene content can be murky, but Justice Potter Stewart famously said, “I know it when I see it.” The Supreme Court has defined obscenity roughly as “patently offensive” sexual content that lacks “serious literary, artistic, political, or scientific value.”

Cable networks like CNN cannot air obscene content, but they can air pretty much anything else. “The same rules for indecency and profanity do not apply to cable, satellite TV and satellite radio because they are subscription services,” reads the FCC website.

The FCC regulates the content of legacy networks like ABC, CBS and NBC more than any other form of media in the name of the public interest, arguably because these channels are freely available to the public.

The Supreme Court has held that for the government to limit the free speech rights of cable networks, it must narrowly apply any restrictions. “It is rare that a regulation restricting speech because of its content will ever be permissible,” the justices wrote in United States v. Playboy Entertainment Group, Inc.

The standard of “strict scrutiny” applies not only to cable networks, but also to “speech in newspapers, the Internet, and every other medium except broadcast radio and television,” according to the Congressional Research Service.

Even if the FCC were to amend how it defines indecency to include the use of drugs, the standards would not apply to CNN.

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David Sivak

Fact Check Editor
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