What’s wrong with bans on indecency?

April 28, 2009 by Don Watkins

The Supreme Court has now upheld the FCC’s ability to regulate fleeting expletives. The Court sidestepped the constitutional question of whether such restrictions are at odds with the First Amendment. Instead, it stuck to procedural questions and reversed the Court of Appeals’ finding that the FCC’s fleeting expletive policy was “arbitrary and capricious.”

I’ve argued elsewhere that “indecency” regulations are inherently “arbitrary and capricious” (albeit not, perhaps, in the technical legal sense). One question I often get, however, is: Who cares? Why get so worked up about a few restrictions on vulgar language?

It’s a fair enough question. Who wants to hear four-letter words every time they turn on the TV, after all? But it’s not that opponents of indecency restrictions desperately crave crudity. It’s that we see the principle such restrictions endorse–and how threatening that principle is to the speech we do care about.

Consider how the Court justifies restrictions on indecent speech. According to the Court, free speech is not an absolute. It must be balanced against other “interests,” such as the state’s “interest” in the “well-being of its youth.” (No, that’s not a typo: its youth.) These interests can justify “the regulation of otherwise protected expression.” What about the speech curbed by indecency regulations? It lies “at the periphery of First Amendment concerns,” and since “Congress has made the determination that indecent material is harmful to children,” then the FCC can go ahead and fine broadcasters for it.

Now, ask yourself: what speech could possibly be safe in light of that kind of logic? What’s to stop Washington from determining that, say, the teaching of evolution is harmful to children, or that the state has an “interest” in silencing critics of Obama’s economic plan?

The principle endorsed by “indecency” regulations is that the state gets to decide what Americans can and can’t say. You cannot oppose that policy by haggling over what speech Washington decides is off limits this week–you have to challenge the notion that the government can make any speech off limits. You have to stand for a different principle: that “Congress shall make no law abridging the freedom of speech.”