The FCC, the Supreme Court and policing indecency

[Commentary] The Supreme Court will be asked Jan 10 to invalidate a Federal Communications Commission policy that punishes broadcasters for spontaneous vulgar utterances — so-called fleeting expletives. That's an easy call, but the justices face the harder task of deciding whether advances in technology have undermined the rationale for any governmental policing of indecency on television.

Punishing a broadcaster for inadvertent remarks over which it has no control makes no sense. Indeed, the Federal Communications Commission recognized as much until a policy change in 2004. But in examining the cases, the U.S. 2nd Court of Appeals went further than invalidating the rule; it struck down the FCC's entire indecency policy as unconstitutionally vague, noting that the agency used subjective criteria. But if the FCC can't protect children from indecency on the airwaves, parents might ask, wouldn't that threaten their innocence? That concern assumes inaccurately that broadcast television and radio are still the only or principal media that expose children to unsuitable material.
Certainly the Supreme Court should reject the FCC's fleeting expletives rule. But it needs to recognize that the day is fast approaching when it will have to decide whether the FCC should be in the business of policing indecency at all.