The following editorial appeared July 14 in the Los Angeles Times:
A federal appeals court has delivered another setback to the Federal Communications Commission's six-year crusade against expletives on broadcast television, declaring the commission's latest indecency rule to be unconstitutionally vague. Unless it's overturned on appeal, the ruling will force the FCC to try again to lay out clear boundaries for on-air programming. That's been an exercise in futility for the commission in recent years.
Federal law prohibits obscene, indecent and profane language on radio and television broadcasts. But the commission went off the rails in 2004, holding that even fleeting use of selected profanities was verboten between 6 a.m. and 10 p.m. Congress also multiplied the maximum penalty by an order of magnitude, turning a single transgression into a potential multimillion-dollar fine.
The Supreme Court upheld the FCC's procedures last year, leaving the constitutional issues for a later day of reckoning. That day arrived Tuesday, and the 2nd Circuit Court of Appeals' opinion was blistering. The three-judge panel found that the rule has chilled protected speech, including live broadcasts and news programs. Broadcasters have "no way of knowing what the FCC will find offensive."
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Rather than trying to justify such a highly subjective regulatory scheme, the commission should return to the restrained approach it took in previous decades. Broadcast networks are no longer so dominant. Besides, the FCC can't shield children from inappropriate programs -- it has no authority over cable TV channels, and it can't stop kids from using DVRs or the Internet. The FCC would be better off promoting new filtering tools for parents than trying to micromanage the airwaves.