The government should not be regulating decency

I’ve been really impressed with our judicial system lately. The attempts to expand the interventionist tentacles of government have been thwarted not by Congress or the administrative branch but by the courts.

One of these impressive moments came yesterday when the United States Court of Appeals in the Second Circuit held in Fox Television v. FCC, that the Federal Communications Commission’s policy on decency violates the First Amendment because the policy is unconditionally vague and creates a chilling effect that goes beyond fleeting expletives.

In other words, the FCC has to be more specific in its regulation of decency than just saying we don’t like the use of an inadvertent f-bomb or the accidental baring of a breast at a half-time show.

In arriving at its conclusion, the court made a couple important points. First, the court raised the concern about the risk of subjective, content-based decision-making and its negative impact on the First Amendment. Do we want the FCC to say, “we’ll allow ABC to show a movie where f-bombs are dropped throughout a movie because the movie depicts real events, but we want the f-bombs edited from a documentary on NBC that discusses drug intervention.” Where would the FCC draw the line on indecency?

Second, because the FCC’s standards for identifying indecency are indiscernible, are not clear upon inspection, this alone creates an environment for discrimination against one person’s speech. In other words, I woke up this morning and something about the lines in that documentary rubbed me the wrong way, so I’m going to say it was indecent. Talk about throwing cold water on free speech.

The court only addressed the FCC’s policy. It did not go so far as to call section 1464 of Title 18 unconstitutional. According to the language in the law, “whoever utters any obscene, indecent, or profane language via radio communications will be fined under this title, or imprisoned not more than two years, or both.” The statutory basis for FCC rules on decency still exists.

What will the FCC do next? According to FCC Commissioner Copps, expect the FCC to appeal the decision. The FCC will have its work cut out for it. The U.S. Supreme Court has already showed a preference for corporate speech in its recent ruling regarding limits on campaign donations by corporations. It may not buy an argument from the FCC that it should be allowed to regulate decency on a standard that basically says, we are going to regulate it in this medium but ignore it because it takes place in another medium.

That to me would be indecent.

About Alton Drew

Alton Drew brings a straight forward and insightful brand of political market intelligence. Alton Drew graduated from the Florida State University with a Bachelor of Science in economics and political science (1984); a Master of Public Administration (1993); and a Juris Doctor (1999). You can also follow Alton Drew on Twitter @altondrew.
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