Tuesday, April 28, 2009

"Fleeting expletives" FCC rule upheld

The FCC rule on "fleeting expletives," permitting massive fines even for individual occurrences of the "seven words you can't say on television," arguing that they always have sexual connotations even when used as an intensifier, was upheld by the U.S. Supreme Court in a 5-4 decision. The decision is noteworthy for using the terms "F-word" and "S-word" and "f***ing" and "s****" in its text, rather than spelling them out.

Clarence Thomas' concurrence in the majority, however, questioned the constitutional basis of the FCC's ability to regulate content. It should be just a matter of time before the FCC's ability to regulate indecency is curtailed, but the Supreme Court did not rule on that issue in this case.

Adam Thierer at the Technology Liberation Front has a thorough commentary:
Part 1, Part 2, Part 3, Part 4

Thierer points out that Scalia, purportedly a strict constitutionalist, in his decision has endorsed a brand-new justification for the FCC's power to regulate broadcast content. The original justification was that the airwaves were a scarce resource that needed to be protected for productive uses; the new argument is that because there are so many unregulated alternatives like cable, satellite, and the Internet, that the government needs to protect one last refuge from offensive content.

(Previously, previously.)

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