In 2010, the U.S. Court of Appeals for the 2nd Circuit concluded that "the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive." The court ruled that the FCC's indecency ban "violates the First Amendment because it is unconstitutionally vague."

Fox and the other TV networks challenging the ban are urging the Supreme Court not only to uphold the 2nd Circuit's decision but to reconsider the 1978 ruling that approved content-based regulation of broadcasting on the grounds that the medium was "uniquely pervasive" and "uniquely accessible to children." Now that nine out of 10 households are served by cable, satellite or fiberoptic TV, and children commonly watch video from non-broadcast sources, it is hard to make that argument with a straight face.

Three decades ago, the court portrayed TV and radio signals as unwelcome visitors in people's homes. That description was never accurate, since receiving the programming carried by those signals required deliberate actions. It is even further from reality in today's entertainment market, which gives parents many tools for regulating what their kids watch.

During Tuesday's oral argument, Justice Samuel Alito worried that repealing the indecency ban would trigger an explosion of televised nudity and profanity, even while conceding that the rule applies to a ever-shrinking share of the video market. In fact, there are more child-friendly entertainment options than ever before, no thanks to the government's ham-handed interference. From a consumer's perspective, the FCC's weirdly selective censorship is not just unnecessary but increasingly incomprehensible.