Jacob Sullum
Pity the poor speech regulators at the Federal Communications Commission, who are charged with sifting through complaints about TV and radio programs in a farcical attempt to determine which references to "sexual or excretory organs or activities" are "patently offensive as measured by contemporary community standards for the broadcast medium."

Last week, the Supreme Court declined to rule on the constitutionality of this charade, thereby forcing the FCC's butt-coverers and word-bleepers to contemplate a backlog of 1.5 million or so complaints.

"The FCC must now enforce our right to decency on the public airwaves," declared Morality in Media President Patrick Trueman. Unpacking that statement reveals the intellectual and constitutional bankruptcy of this whole censorious enterprise.

Trueman's "right to decency" is, in essence, a right not to be offended, which sits rather uneasily with the right to freedom of speech. The First Amendment would not amount to much if it extended only to inoffensive utterances.

And what about the right to indecency? Profit-driven broadcasters do not air things that offend Patrick Trueman out of a perverse desire to upset him; they do so because they are trying to attract viewers, who evidently have different tastes. Why should Trueman's idea of good television trump theirs?

Here is where the concept of "the public airwaves" comes in: The government graciously allows broadcasters to use a precious public resource and therefore has a right to impose conditions on them. That was the Obama administration's position in the case decided last week, where the Supreme Court overturned three FCC indecency actions on narrow due process grounds but dodged the broader First Amendment issue.

Notably, this view of the airwaves as a public resource was not the basis for the 1978 ruling in which the Court first upheld the federal government's authority to regulate TV and radio content. That decision hinged instead on the premise that broadcasting was "uniquely pervasive" and "uniquely accessible to children" -- neither of which is true now that programming is widely and readily available via cable, satellite, Internet, DVD and DVR.

Unlike broadcasting, none of those media is monitored by the government for naughty words and images, and the Court has made it clear that any attempt to do so would violate the First Amendment. Yet there is no constitutional basis for this distinction, no matter how many times professional puritans like Trueman call the airwaves "public."

Jacob Sullum

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