The federal government’s battered policy against what it considers to be “indecent” programming on television has weathered two showdowns in the Supreme Court in the past three years. But, on Thursday, the Court impliedly posed a question: whether that Federal Communications Commission policy — if left as is — would survive a third such encounter. The signals were not promising for the FCC.
The new ruling in FCC v. Fox Television Stations, et al. (10-1293), of course, did not strike down the policy. It nullified specific orders by the FCC enforcing its policy, and avoided the First Amendment issue altogether. FCC thus does retain the option of going right ahead to regulate broadcasts of single uses of four-letter words and momentary glimpses of provocative nudity, as if nothing had changed. It also has the option of reconsidering, but anything new it writes will again be tested constitutionally, so either way, there will be a third round.