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About this weblog
Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.

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June 21, 2012

SCOTUS Puts (Minor) Constraint on FCC Censorship

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Posted by Alan Wexelblat

I had to go back to 2006 to find the last time I'd blogged on this topic. Finally, six years later, we get some relief. Today, unanimously, the Supreme Court said that the FCC cannot arbitrarily (and retroactively) fine a broadcaster under its "fleeting obscenity" standard.

Unfortunately, the Court declined to opine on the bigger issues of speech and censorship in general; instead, they focused on the fact that the broadcasters could not have known in advance that they would run afoul of post-broadcast complaints. The Court explicitly invited the FCC to revise its guidelines. Here's the relevant paragraph from the judgment summary:

It is necessary to make three observations about this decision's scope. First, because the Court resolves these cases on fair notice grounds under the Due Process Clause, it need not address the First Amendment implications of the Commission's indecency policy or reconsider Pacifica at this time. Second, because the Court rules that Fox and ABC lacked notice at the time of their broadcasts that their material could be found actionably indecent under then-existing policies, the Court need not address the constitutionality of the current indecency policy as expressed in the Golden Globes Order and subsequent adjudications. Third, this opinion leaves the Commission free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements and leaves courts free to review the current, or any modified, policy in light of its content and application.

That's disappointing, but not wholly unexpected. SCOTUS has declined to rule on the First Amendment issues of the FCC's policies before. I'm disappointed, as I believe that arbitrary restrictions on word choice - with or without prior notice - are the essence of government censorship that the First was designed to prevent and that the FCC remains an agency that is too far out of control. It needs to be reined in strongly, not invited politely to write a new ridiculous set of rules that will have to be litigated for another decade.

However, since the focus of this blog has shifted considerably in the last half-decade this will probably be my only post on this topic.

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