In 2004, the Federal Communications Commission (FCC) changed its indecency policy to permit severe sanctions on broadcasters for airing isolated fleeting expletives on radio or television. This new rule reversed the FCC’s long-standing restrained enforcement policy under which isolated fleeting expletives were per se inactionable.
In Fox Television Stations, Inc. v. FCC, the Second Circuit unanimously struck down the FCC’s expanded indecency regulation as unconstitutionally vague. The court reasoned that the FCC’s new policy fails to give broadcasters clear notice of the language it considers indecent. In addition, the Second Circuit warned against the inevitable chilling effect that the fleeting expletives policy inflicts on constitutionally protected broadcast speech, noting that some instances of chilled speech have already occurred.
This Comment examines the FCC’s heightened regulation and argues that the rule is constitutionally flawed because it (1) is overly restrictive; (2) is subjectively and discriminatorily enforced; (3) chills protected speech; (4) infringes on parents’ constitutional right to raise their children; and (5) virtually preempts healthy discussions between parents and children about sex to children’s detriment. Relying on the government’s correlation between expletives and sex, this Comment proposes deregulating broadcast media, at least to its pre-2004 regime, to better equip parents with opportunities to educate their children about sex. In other words, in absence of the FCC’s new rule, parents should take advantage of the rare fleeting instances of broadcast profanity to instruct their children on word meanings, connotations, and sex. Moreover, this restrained approach to combating indecency is more in line with the original broadcast regulators’ intent to form a regulatory body devoid of any censorship capability.
A negative ruling for the FCC, combined with parents’ initiative to educate their children about sex, will more effectively tackle modern problems like teen pregnancy and sexually transmitted diseases and foster a more sexually responsible society. Avoiding indecency through unconstitutional bans on protected speech only preserves the ailing status quo.