Void for Vagueness

[Commentary] Writing the majority opinion, Justice Anthony Kennedy said the Federal Communications Commission’s standards were too vague and thus violated the broadcasters’ Fifth Amendment due process rights.

The narrow ruling did not address a broader issue: the government’s continued authority to regulate “indecent but not obscene” material on television. That was established in a 1978 Supreme Court case allowing the government to prohibit “indecent” speech (which the First Amendment protects) during hours when children are likely to be watching or hearing the broadcast. Justice Ruth Bader Ginsburg, who voted with the majority but wrote a brief separate opinion, argued that the pervasiveness of the Internet demands that the 1978 decision be revisited. She is right. The Supreme Court strongly hinted that the FCC should “modify its current indecency policy” in light of the public interest and to meet constitutional requirements. The FCC should take that suggestion immediately.