Thursday, July 15, 2010

If 'Indecency' Is Unconstitutionally Vague, Why Isn't 'Obscenity'?

by Jacob Sullum

July 14, 2010

Yesterday I noted the 2nd Circuit's decision rejecting the FCC's ban on "broadcast indecency" as unconstitutionally vague. "By prohibiting all 'patently offensive' references to sex, sexual organs, and excretion without giving adequate guidance as to what 'patently offensive' means," the appeals court concluded, "the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive." Our coverage of John Stagliano's obscenity trial shows that the law he is charged with violating raises the same problems. This is not a coincidence, because the definition of obscenity, a category of speech that the Supreme Court has deemed undeserving of First Amendment protection, was the model for the FCC's definition of broadcast indecency, which the Court has said can be restricted to certain hours without violating the First Amendment.