In the ongoing case FCC v Fox Television Stations, the U.S. Supreme Court is considering the following questions:
1. Whether the court of appeals erred in invalidating a finding by the Federal Communications Commission (FCC) that a broadcast including expletives was indecent within the meaning of statutory and regulatory prohibitions on indecent broadcasts, on the ground that the FCC’s context-based approach to determining indecency is unconstitutionally vague in its entirety.
2. Whether the court of appeals erred in invalidating a finding by the FCC that a broadcast including nudity was indecent within the meaning of statutory and regulatory prohibitions on indecent broadcasts, on the ground that the FCC’s context-based approach to determining indecency is unconstitutionally vague in its entirety.
These contentious legal issues and the voluminous arguments in this case should not obscure the great progress that has been made in indecency regulation.
About 1800 years ago, indecency regulation was much less well-developed. Galen then described “these birds in the city of Rome which we see being led around by their masters in order to mount female (birds) for a price.”[*] Surely everyone today would agree that street vendors displaying for a fee animals copulating is indecent. That sort of activity just isn’t a major public issue today. Put differently, current indecency regulation is quite effective and unintrusive.
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[*] See Rothschild, Clare K, and Trevor W. Thompson (2011), “Galen: ‘On the Avoidance of Grief.’” Early Christianity, vol. 2, pp. 110–129. Quotation above is from para. 62.