Court: FCC 'indecency' rule doesn't make tech sense

news analysis Call it the revenge of George Carlin.

The legendary Grammy-winning comedian, who died in 2008, was slapped down by the Federal Communications Commission in the 1970s for his "Seven Dirty Words" monologue. The U.S. Supreme Court gravely concluded that the 12-minute monologue was illegal to broadcast.

But a funny thing happened on the way to 2010. The Internet grew even faster than the federal deficit, wireless devices sprouted like Obama stickers on Priuses, and American consumers were forced to pay for V-chips in their televisions, regardless of whether they wanted any.

Which is why a federal appeals court on Tuesday said that technological advances have ripped away the underpinnings of the FCC's "indecency" regulations. Forget Nipplegate: FCC attorneys have insisted for decades that they have the constitutional authority to punish radio and TV broadcasters who dare to transmit even a few syllables from Carlin's list of naughty words.

"We face a media landscape that would have been almost unrecognizable in 1978," the Second Circuit Court of Appeals concluded in a 3-0 opinion (PDF). "Cable television was still in its infancy. The Internet was a project run out of the Department of Defense with several hundred users. Not only did YouTube, Facebook, and Twitter not exist, but their founders were either still in diapers or not yet conceived."

In the seminal 1978 case arising from Carlin's monologue, the Supreme Court said FCC regulations banning four-letter words were appropriate because "the broadcast media have established a uniquely pervasive presence in the lives of all Americans." In addition, the opinion written by Justice Paul Stevens said, "broadcasting is uniquely accessible to children," because there's no way to block it.

Well, that was then. As the Second Circuit said Tuesday: "The past 30 years has seen an explosion of media sources, and broadcast television has become only one voice in the chorus. Cable television is almost as pervasive as broadcast--almost 87 percent of households subscribe to a cable or satellite service--and most viewers can alternate between broadcast and non-broadcast channels with a click of their remote control. The Internet, too, has become omnipresent, offering access to everything from viral videos to feature films and, yes, even broadcast television programs."

Meanwhile, the possibility of blocking salacious television programming has become widespread (even if no parents actually bother to do it). Every television that's 13 inches or larger sold in the United States in the last decade contains a V-chip. So do those digital converter boxes that caused such a fuss last year.

The current case arose from the FCC's decision to broaden its indecency regulations as part of then-chairman Kevin Martin's attempt to neutralize the political outcry over Janet Jackson's famous wardrobe malfunction during a Super Bowl halftime show in 2004.

Broadcasters including NBC, Fox, ABC, and CBS (the parent company of CNET) sued, saying the FCC regulations were so vague they violated the First Amendment.

For instance, the FCC allowed repeated indecent language in broadcasts of "Saving Private Ryan," but singled out for punishment one mention of the word "f**king" during the Golden Globe Awards. The word "bulls*it" is indecent, for instance, but the word "d**khead" is not because it's "not sufficiently vulgar, explicit, or graphic."

In the end, the Second Circuit concluded that it had to follow the decision in the Supreme Court's 1978 case, but only after going out of their way to tell the justices exactly how out of date it was. So the court vaguely declared that the FCC's regulations were unconstitutional on other grounds.

Now the FCC has the chance to appeal to the Supreme Court. If it does, though, its attorneys will need to compile more convincing arguments than they've used so far (at least one justice, Clarence Thomas, has already suggested that he thinks the FCC's indecency regime is unconstitutional).

If enough other justices agree, it will come a bit too late to benefit George Carlin. But Howard Stern, veteran of innumerable regulatory sex scuffles, would surely have something to say.