Jacob Sullum

My daughters, who range in age from 5 to 18, watch TV programs and movies on DVDs, on smart phones, streaming from Netflix through our Wii, on video websites, on our DVR and on demand from AT&T U-verse. They do not know or care what "broadcast television" is, and they certainly do not perceive a categorical distinction between "over-the-air" channels and the rest.

But the Federal Communications Commission does, imposing a form of censorship on broadcast TV that would be clearly unconstitutional in any other context -- for the children, of course. A case the Supreme Court heard on Tuesday gives it an opportunity to renounce this obsolete doctrine once and for all.

Officially, the FCC punishes TV and radio stations for airing programs that "describe or depict sexual or excretory organs or activities" in a way that is "patently offensive as measured by contemporary community standards for the broadcast medium." But no one knows what that means until the commission rules, and even then it is impossible to extract clear guidelines from the FCC's highly subjective judgments.

The commission has decreed, for instance, that "f--k" is indecent when uttered by celebrities during live award shows -- whether exuberantly (Bono), angrily (Cher) or jokingly (Nicole Ritchie) -- and by blues musicians in a PBS documentary, but not by fictional soldiers in "Saving Private Ryan," where the expletives were, in the FCC's view, artistically justified. Likewise, fleeting partial nudity on "NYPD Blue" was indecent, while full frontal nudity in "Schindler's List" was not. Call it the Spielberg Rule.

The FCC insists on no "bulls--t" in a cop show but may allow it in "a bona fide news interview," although it emphasizes "there is no outright news exemption from our indecency rules." The commission can be surprisingly tolerant of a "dickhead" or an "ass," even when he is "pissed off." As the America Civil Liberties Union (ACLU) observes, such judgments are "simply a matter of taste, and the commissioners' efforts to rationalize their taste merely emphasize the arbitrary nature of the enterprise."

Since guessing wrong about the FCC's taste can cost broadcasters millions of dollars in fines and jeopardize their licenses, they tend to err on the side of restraint, which means much worthy material either is expurgated or never airs. The ACLU cites many such examples, including 9/11 documentaries, war reporting, political debates, live news coverage, novel readings, songs from Broadway shows and a critically acclaimed British police drama.

Jacob Sullum

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