Is Regulating ‘Indecent’ Broadcast Unconstitutional? SCOTUS Hears Case
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.
Regardless of whether this rationale made sense in 1978, it no longer applies in the media environment of 2012. As we argue in our coalition brief, the centrality of broadcast content has waned in the face of other content sources (including cable, video-on-demand, and the Internet). At the same time, parents have never had a greater ability to set their own limits and controls on the type of content they believe is most suitable for their families. As the court recognized in Reno v ACLU, user empowerment tools that give individuals the power to set their own content restrictions are a less restrictive means to achieve the goal of protecting children than broad government content regulations of constitutionally protected speech. As the Court considers the arguments it hears today, we urge it to consider the changed technological circumstances of the past three decades, and extend to broadcast content the same level of First Amendment protection afforded to other speech.
On September 15, 2026, the Center for Democracy & Technology and Electronic Frontier Foundation filed an amicus brief along with the Wikimedia Foundation in Meta Platforms v. Bonta, challenging California’s SB 976.
Not All Guardrails Are Created Equal: Comparing Content Safety and Copyright Filtering
As courts and policymakers work through questions about chatbot liability, they should be wary of analogies that flatten meaningful technical differences. Copyright filtering and safety intervention share real challenges around ambiguity and evasion, but they diverge in what each control must assess, how each manifests over the course of a conversation, and how much can be verified from the outside.
Op-Ed: France’s Constitutional Council Ruling Tests the Limits of Social Media Bans
Read our analysis the legal and policy significance of the Constitutional Council’s decision on ongoing social media age restriction and age assurance debates ahead of the most-anticipated EU-wide approach on child online safety due by December 2026.
The brief explains that Section 230’s liability protections are essential to enable free expression online and they extend to the use of automated systems to engage to rank and order content as part of traditional publishing activities.
