The FCC Policy Was a Mistake

[Commentary] Decency standards have value and are necessary for responsible media companies, but the court was right to strike down the current indecency policy. It is time now for the Supreme Court to revisit its half-century-old decision that broadcasting alone is undeserving of full First Amendment protection.

While easy to fault the Federal Communications Commission's administration of the indecency laws, the real problem is the now-flawed constitutional foundation on which the law is built. Light years ago, the Supreme Court held broadcast content could be more aggressively regulated because it was a scarce resource that held a "uniquely pervasive presence in the lives of all Americans." Broadcasting then was a scarce medium without rival — a time before UHF, cable, satellite, or the Internet. If the case for lesser speech protection for broadcasting was ever sound, that case is eviscerated today by the sheer abundance and accessibility of other media sources, which enjoy full constitutional protection. We cannot have one First Amendment for broadcasting and another one for every other medium. This vestige of a bygone era provides fertile ground for mischief — culture wars, political agenda and moral mandates. It's high time for the high court to bring our laws into the 21st century.

[Powell is a former FCC chairman]