Free and Fleeting Speech


Good news on the censorship front:

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.

The question at issue was whether the FCC can penalize broadcasters for allowing unplanned, fleeting expletives to go over the air during live programs. The case will probably proceed to the Supreme Court, which had kicked it back down to the 2nd Circuit for technical legal reasons last year but left the door open to addressing the relevant First Amendment issues in the future. Clarence Thomas, in particular, seemed eager not just to end such restrictions but to reject the commission's power to regulate content altogether. I endorsed his argument in an article I wrote at the time:

There is no credible reason we shouldn't have the same right to free expression on the FM and VHF bands that we have when using WiFi or cable. Now, there are those in the commission, the courts, and the Congress who would resolve the contradiction by extending the indecency rules' reach to cable and cyberspace. But if the courts respect the language of the First Amendment, they'll extend the reach of free speech instead.

In the meantime, the FCC is simultaneously empowered and impotent, an agency reduced to chasing passing curse words on network TV while cable subscribers enjoy unhindered access to Spice and the Playboy Channel. The bad news is that the courts might tell the commission it's within its rights when it censors the networks. The good news is that the free speech zone outside the FCC's dominion keeps growing.