Jacob Sullum

After all, satellite TV, cellphones and the Internet also use "the public airwaves," but that fact does not subject them to content regulation. I used the public airwaves, through a Wi-Fi connection, to transmit this column, but that does not mean I have to worry about being fined if I happen to offend the FCC.

Extending the concept only slightly, coaxial and fiber-optic cables follow public rights of way, periodicals are delivered via public roads, and every speaker's voice is both powered and transmitted by the public air. Does Patrick Trueman have a right to decency in these media, as well?

It's true that the government treats broadcasting as a privilege with strings attached, as opposed to a transferable property right, but that decision does not justify itself. If the government has the authority to regulate broadcast content because it controls the airwaves and licenses TV stations, why can't it regulate newspaper content by nationalizing printing presses and licensing journalists?

In addition to violating the First Amendment, the ban on broadcast indecency undermines the rule of law because it is so hard to predict what will offend the FCC. A glimpse of bare buttocks (which are not, technically speaking, "sexual or excretory organs") may be deemed indecent in a cop show but not in a war movie. Four-letter words that can trigger multimillion-dollar fines may be tolerated if the FCC deems them artistically or journalistically justified. Such embarrassingly subjective, unjustly arbitrary and unconstitutionally speech-chilling judgments are unavoidable as long as the government insists on protecting the mythical right to decency.

Jacob Sullum

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