A blow against censorship and for the First Amendment:
A federal appeals court on Tuesday found that a government policy that can lead to broadcasters being fined for allowing even a single curse word on live television is unconstitutionally vague.
The 2nd U.S. Circuit Court of Appeals in Manhattan tossed out the Federal Communications Commission's policy after finding that it violates the First Amendment.
In 2004, the FCC adopted a policy that profanity referring to sex or excrement is always indecent.
"By prohibiting all `patently offensive' references to sex, sexual organs and excretion without giving adequate guidance as to what `patently offensive' means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive," the appeals court wrote.
What's "patently" offensive to one person might be perfectly acceptable to another, marginal or debatable to a third. Aand as hit & run points out, the decision went even further, rejecting the FCCS's general policy regarding broadcast indeceny as unconstitutionally vague. The issue seems likely headed for the Supreme Court, and there's a chance there might be a healthy debate over whether FCC v. Pacifica, the 1978 case that allowed broadcast content regulation, is still valid:
Given the enormous changes in the media environment since then, the 2nd Circuit notes, broadcasting is no longer "uniquely pervasive" or uniquely accessible to children: It is but one of many media options, and parents can exercise the same sort of control over their children's viewing regardless of whether programming arrives over the air, by cable, by phone line, or by satellite. In light of these realities, it is long past time (as Jesse and I have argued) to overturn Pacifica, a step the 2nd Circuit leaves to the Supreme Court.
It's true that the environment has changed tremendously. What's the point of treating profanity in "Saving Private Ryan" one way on broadcast TV and a single utterance by Bono another, given what can be seen and heard just around the TV dial on a cable network? But I'd rather someone make the case that the FCC never should have had such authority in the first place and wouldn't have if the founders could have conceived of today's technology. Clarence Thomas seems to be the justice most eager to go that far.