Today the Supreme Court agreed to review a 2010 decision by the U.S. Court of Appeals for the 2nd Circuit that overturned the Federal Communications Commission's ban on broadcast "indecency." In 2007 the appeals court said the FCC's newly minted policy regarding isolated expletives (such as Bono's 2003 remark that receiving a Golden Globe award was "really, really fucking brilliant") was "arbitrary and capricious," in violation of the Administrative Procedure Act. The Supreme Court disagreed in 2009, sending the case back to the 2nd Circuit for further consideration. Last July the appeals court threw out not just the FCC's ban on fleeting profanity but its entire indecency policy—which bans "patently offensive" sex- and excretion-related material from broadcast TV and radio between of 6 a.m. and 10 p.m.—on First Amendment grounds. The 2nd Circuit said the "context-dependent" policy was so vague and subjective that it chilled a broad range of constitutionally protected speech. Asking the Supreme Court to overturn that decision, the Justice Department warned that it would "preclude the FCC from carrying out its statutory responsibility to ensure broadcasters honor their long-standing obligation not to air indecent material."
As if that's a bad thing. This is the Court's chance to say that "long-standing obligation," which for no logical reason applies to broadcast TV and radio but not to cable, satellite, or Internet stations, is inconsistent with the First Amendment. The Court's recent decisions regarding depictions of animal cruelty and violent video games, both of which focused on the dangers of restricting vaguely defined categories of speech, suggest it may well agree with the 2nd Circuit that the FCC's current rules are unconstitutional. But unless the Court revisits FCC v. Pacifica, the 1978 ruling that approved content regulation of radio and TV, the FCC will get to try again, in which case its absurd, antiquated policy of censoring an arbitrarily selected class of programming will continue for at least one more round of litigation.