Today the Supreme Court will hear arguments in FCC v. FOX to determine whether regulation of "indecent" content on broadcast television violates the First Amendment. This case has been up to the Supreme Court before; in 2009, the Court held that the FCC's decision to fine FOX for broadcasting profanity (called "fleeting expletives") during live award shows (the 2002 and 2003 Billboard Music Awards) was not "arbitrary and capricious", and so did not violate the Administrative Procedures Act that governs how federal agencies can make and change their policies. (CDT filed a brief in both the 2009 and 2011 cases.)
This time around, the Court is addressing a different question: whether FCC regulation of indecent (but not illegal) over-the-air content is consistent with the First Amendment. In the 1978 Pacifica case, the Court held that because broadcast media was "uniquely pervasive" in American culture, serving as the principle source for news and entertainment in a time before 500-channel cable packages, and acted as an uncontrollable "intruder" into the home, it was appropriate for the government to put some limits on what type of content could travel through the airwaves.
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