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.

NEXT: Where Do Libertarians Belong?

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  1. But if the courts respect the language of the First Amendment-

    Stop right there.

    1. Heh. FoE made me chuckle right there.

  2. Is that image also from the hot Czech girls calendar?

    I love those old school pointy cans.

  3. 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.

    Fuck those assholes.

  4. Mrs. Landers was a health nut,
    she cooked food in a wok.
    Mr. Harris was her boyfriend,
    and he had a great big..
    cock-a-doodle-doodle the rooster just won’t quit,
    and I don’t want my breakfast,
    because it tastes like..
    Shih Tzus make good house pets,
    they’re cuddly and sweet,
    monkeys aren’t good to have ‘cos they like to beat their..
    meeting in the office a meeting in the hall,
    the boss he wants to see you so you can suck his..
    Balzac was a writer he lived with Alan Funt,
    Mrs. Roberts didn’t like him but that’s cuz she’s a..
    contaminated water can really make you sick,
    your bladder gets infected and blood comes out your..
    dictate what I’m saying ‘cos it will bring you luck,
    and if you all don’t like it, I don’t give a flying fuck.

  5. It’s absolutely absurd that the FCC exists any more, but the fact that they know they’re unnecessary makes them more dangerous as they scramble find something for which to justify their existence. Which is why they’re such a danger to the freedom of the internet.

  6. I can’t think of any reason for the FCC to exist. Certainly any atttempt at content control by the FCC is unconstitutional. As for allocating “scarce” bandwith and the like, why can’t it be auctioned off, and any infringements policed by the courts?

    1. COASE COASE COASE COASE COASE COA…oh wait, yeah, what you said.

      Its only been 50.5 years since Coase recommended that.

    2. Frequency allocation. That’s it. 50 good radar/comm technicians, an engineer, two secretaries and a physicist with a budget of 80 million is more than sufficient.

      1. Budget? It would probably pay for itself.

    3. The courts generally avoid day to day management of stuff, ie taking on the spectrum-allotment functions of the FCC. This would also create a precedent for shifting duties from the executive branch to the courts – not a good idea. Also, since the courts don’t do a lot of proactive management, that would leave it to US Attorneys.

      Keep the FCC, but downsized and with a narrowed scope of authority.

    4. Rational reasons for the FCC to exist:

      1. Allotment of RF spectrum.
      2. Resolution of harmful interference issues between spectrum users.
      3. Having item 2 that works even for little guys that can’t afford big DC lobbyists and fleets of lawyers.
      4. Testing and certification of radio frequency equipment so that we know they are safe, and unlikely to cause harmful interference.
      5. Establishing standards for amateur radio licensure.
      6. Establishing standards for commercial”broadcast” licensure.

      1. Yeah, but you got to be smart to do all that stuff. Congresscritters don’t understand this, therefore it is not important. Where’s the fun for the run-on-the-mill bureaucrats?

  7. “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.”

    Thank you Big Cable!

  8. Why can this go to the Supreme Court now? Don’t the broadcasters represent the defendants in this case? Wouldn’t allowing the FCC to appeal be double jeopardy for the broadcasters? If the FCC can appeal, that’s bullshit. The government should stop the second they are told by any level court they are wrong. The liberty of the private person should always be granted priority to any government interest.

    1. Double jeopardy applies only to criminal law.

      Any final decision (and some interim decisions) of a federal district court can be appealed to the federal courts of appeal. Moreover, parties unhappy with a federal appellate review can always file a petition for review with the Supreme Court. The Supreme Court then decides whether it wants to hear the case.

      Court procedural rules apply to all litigants, and making an exception for government litigants is a bad idea. Inevitably, such exceptions will work in the government’s favor.

      1. How is this not criminal law? The FCC (govt) punished broadcasters financially and with threat of taking away their license and thus livelihoods as a result of a crime they made up. “It is illegal to use naughty language because we say so.” The FCC made it a crime to air X. This isn’t me vs you in civil court. This is government vs the People.

  9. One last World Cup-related threadjack (but it’s sorta realated!):

    More records fall

    Better than I thought, and when you consider the other very popular and credible delivery methods other than TV which were not practical 4 years ago, the numbers who watched may be quite a bit higher still.

    1. The real question is if those people will tune in again in four years after watching ninety minutes of nothing happening…

      1. Seeing as ratings were up on historic highs throughout the tournament, they’re quite happy watching hours and hours of “nothing happening”.

        And it was 116 minutes of “nothing”. Forgot extra time.

        1. I enjoyed the nothing, though I was disappointed in the U.S. team not advancing at least one more round. We are poised for a decent run in 2014, though.

          1. Oops, that was left over from the FCC thread.

          2. I think we all were, and especially the team. But when you give up early goals as a fuckin’ habit, it’s going to bite you eventually, no matter how amazingly good you are at coming back (and I’ve rarely seen a team come back like this so frequently in pressure situations, going all the way back through qualifying).

            Biggest problem as the US transitions to a more skillful collection of players and perennial near-lock for getting out of their group: rediscovering the defensive grit and center-back quality they had up through 2006.

            1. It’s crazy. We’ve kind of discovered offense for the first time, well, mostly ever, but then our vaunted defense vanishes. We still have good keeping, at least, so maybe next Cup will be a better story.

              1. I found myself longing for Eddie Pope and 2007-08 Oguchi Onyewu.

  10. Now, there are those in the commission, the courts, and the Congress…

    I like how you kind of channeled your inner Obama there, Jesse.

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