Policing Indecency

[Commentary] A few years ago, Cher, the entertainer, and Nicole Richie, the television personality, uttered brief expletives on separate music awards shows on Fox. The Federal Communications Commission ruled that the comments were indecent. A federal appeals court in New York is now considering the case. The court should rule that the FCC's decision violates the First Amendment.

The FCC's indecency policy is hopelessly vague. Indecency was once limited to forms of expression that were truly outrageous. Now the commission considers itself free to pick and choose among not particularly shocking content based on its opinion about the words and the context. The same epithet that the commission regards as indecent when Cher says it on an awards show may not be considered indecent when showing the movie "Saving Private Ryan." Broadcasters have no way of knowing in advance what sort of content will upset the FCC's indecency police — and possibly subject them to enormous financial penalties. When the government punishes speech with vague rules, it has a chilling effect on expression of all kinds. Speakers, unclear on where the lines are, and fearing sanctions, have a strong incentive to avoid engaging in speech that is legally protected. It is always risky to try to predict a case's outcome from oral argument. But it appears that the judges who heard this case understood that the commission's highly subjective standard violates the Constitution.