In a narrowly tailored but near-unanimous decision on Wednesday, the Supreme Court ruled that the Federal Communications Commission’s regulations regarding “indecency” are unconstitutionally vague. Most of the Justices didn’t question whether the FCC had the authority to regulate television content for indecency—instead, they argued the FCC had failed to give the networks “fair notice” that certain content could be considered indecent.
The content in question seems somewhat quaint in the age of the Internet—ABC aired “seven seconds of nude buttocks” accompanied by a few more seconds of sideboob on NYPD Blue in 2003, while Fox aired “isolated utterances of obscene words” by “the singer Cher” and “a person named Nicole Richie” during the Billboard Music Awards in 2002.
Of the eight Justices who ruled on the issue (Sonia Sotomayor recused herself because she was a judge on the Second Circuit when it took the case), only Justice Ruth Bader Ginsburg, in a brief concurrence, questioned whether the FCC’s authority was too broad. Ginsburg wrote that the 1978 case upholding the FCC’s authority to regulate “indecency” over the airwaves was “untenable” and “bears reconsideration.” (The 1978 case involved a hilarious radio monologue from the late comedian George Carlin.)
The court’s narrow ruling reflects a very different attitude towards the First Amendment than the one on display in the court’s decision in Citizens’ United, which opened the spigot for unlimited, unregulated corporate money in elections. As Justice Anthony Kennedy wrote in his Citizens United opinion, “it is our law and tradition that more speech, not less, is the governing rule.” That rule appears to apply only to unlimited corporate cash, not sideboob. Which do you think is more threatening to the democratic process?