The Supreme Court today is hearing a case that really should be the last of its kind.  The legal issue being disputed is quickly disappearing because of technology.  Part of the dispute in question is ancient, curse words, and part of the dispute is last century’s technology, television.  Several Hollywood stars dropped the “F-bomb” during award shows on Fox and Fox was thus fined by the Federal Communications Commission (FCC) for violating decency standards.  Fox has appealed to the Supreme Court because it argues the incidents in question were too fleeting to be indecent or did not meet the FCC’s prior definition of indecent.  While the Court is likely to decide the case based on the FCC’s application of its own rule, the better outcome is to strike down the rule which has been rendered moot due to advances in technology.

Our old friend from high school science class, the electromagnetic spectrum, is behind this conundrum.  The spectrum is property of the people of the United States and administered for us by the federal government.  This means that any person that wants to broadcast signals by use of the electromagnetic spectrum (radio waves) must purchase a license from the FCC and also follow its rules.  One of these rules bans indecent material between 6am and 10 pm to prevent children from hearing or seeing it.

When radio and later television first arrived in homes across America, the only broadcast medium was via the public airwaves.  The number of broadcasters was limited so the industry was easily regulated by the FCC.  Today, cable, satellite, and the internet — all mediums outside the purview of the FCC — play the principal role in delivering these signals.

For instance, while over 100 television channels may be available on your set, you can probably count on one hand the number of channels that are subject to FCC rules.  Only local TV stations and the major broadcast networks (ABC, CBS, FOX, NBC and PBS) use the public airwaves, though they are also carried on virtually every cable system as well.  However, this is of no import regarding the scope of FCC regulation; any broadcaster whose signal is received by at least one person over the air must abide by FCC rules.

The law was enacted to protect children.  But due to the sheer number of channels and mediums not subject to the rule, the indecency shield sought is no longer feasible.  Why censor 5 stations when little Johnny can just turn the channel to 100 other stations, or visit a million web pages to see and hear adult language?

Unfortunately the rule still exists and the FCC is under constant political pressure to enforce it.  The FCC stepped up indecency enforcement after the Janet Jackson Super Bowl halftime “wardrobe malfunction.”  The Supreme Court has previously upheld the restrictions as constitutional and it is doubtful that the Court would reverse itself now because of the plethora of additional broadcast media. 

Thus, it is left to Congress to act to repeal an archaic regulation.