The FCC's decency dilemma

[Commentary] Federal law prohibits obscene, indecent and profane language on radio and television broadcasts, and the commission is under considerable political pressure to keep the public airwaves free from shockingly offensive material. But it went off the rails in 2004, holding that even fleeting use of selected profanities was verboten between 6 a.m. and 10 p.m.

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." More ominously, the court suggested that the way the rules were drawn, the FCC could use the policy to discriminate against programs it didn't like while absolving ones it did. 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 dominant, inescapable media voices. 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 to watch late-night programming in the middle of the day. Happily, parents now have better tools for blocking programs they don't want their children to see. The FCC would be better off promoting those tools than trying to micromanage what's said on the airwaves.