Jacob Sullum

The Second Circuit suggested that the FCC's indecency rules are unconstitutionally vague, creating "an undue chilling effect on free speech" by drawing seemingly arbitrary distinctions. A single "f---" or "s---" on a live awards show can cost a network millions of dollars, for example, but the same words are OK in a "bona fide news interview," even if the interview is a thinly disguised promotion for one of the network's own entertainment shows.

The accidental airing of Cher's "f--- 'em" is indecent, but the deliberate airing of the very same footage in the context of a news report is not. The "repeated and deliberate use of numerous expletives" is OK in a fictional World War II movie because they are "integral" to the film yet indecent in a documentary about real-life blues musicians.

It's obvious by now that the FCC makes up the rules for acceptable speech as it goes along. In the paradigmatic example of broadcast indecency, Carlin's monologue about "the words you couldn't say on the public airwaves," there's no question that the expletives were "integral" to the routine, which was partly about the very censorship to which it became subject.

The premise underlying the Supreme Court's decision upholding the fine for Carlin's monologue was that TV and radio over the airwaves are "uniquely pervasive" and "uniquely accessible to children." With nine out of 10 U.S. homes receiving cable or satellite TV, with downloads and DVRs making a hash of "time channeling," with ratings and parental controls available across video sources, that premise is no longer tenable. The only question is how much longer the courts will pretend otherwise.

Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
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