The 401st Blow :: Thoughts On Media

Score One For The Good Guys

Posted in Law, Policy by Noah Harlan on July 13, 2010

A federal appeals court just struct down the FCC’s indecency ban as unconstitutional.  This is a win. In particular the court held that the indecency ban was an infringement on the 1st Amendment because it was unconstitutionally vague.  Here are a couple key paragrphs:

[W]hen Judge Leval asked during oral argument if a program about the dangers of pre-marital sex designed for teenagers would be permitted, the most that the FCC’s lawyer could say was “I suspect it would.” With millions of dollars and core First Amendment values at stake, “I suspect” is simply not good enough….

The FCC assures us that it will “bend over backwards” to protect editorial judgment, at least in the news context, but such assurances are not sufficient given the record before us. Instead, the FCC should bend over backwards to create a standard that gives broadcasters the notice that is required by the First Amendment….

For a very interesting look at Justice Clarence Thomas’ concerns that radio and television are less constitutionally protected than other media from an earlier phase of the case that made it to the Supreme Court, definitely visit the always compelling Volokh Conspiracy.

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