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Rewind 1978: Vague standards, technology and broadcast indecency

The United States Supreme Court oral arguments on fleeting expletives -- namely "fuck" and "shit" -- on the broadcast airwaves represent an ongoing legal challenge since the 1970s. Back then, the justices split 5-4 on the side of the Federal Communications Commission (FCC) and its rules designed to protect children. Congress pressured the FCC, and it responded. By the 1990s, amid Howard Stern and shock radio, courts upheld the channeling of profanity to late-night hours, presumably giving parents a fighting chance to insulate their small kids from the offensive language. However, it was never clear that carving a "safe harbor" of overnight hours protected the First Amendment rights of adults to see and hear unregulated free speech. Enter the Internet. By the late 1990s, the Supreme Court protected Internet indecency, thus leaving over-the-air broadcasting, as some called it, "second-class citizens." By the time of the Janet Jackson wardrobe malfunction, a rear-end shower shot on a crime drama, and the live awards show and sports broadcast fleeting expletives, it was becoming clear that our Internet kids probably did not need protecting that might have been possible in the 1970s limited broadcast world. The Second Circuit Court of Appeals in New York twice concluded that Fox Television had it right. The FCC essentially turned heels on its original policy that allowed for live broadcast fleeting expletives. Two of the three judges seemed to go further in recognizing that the Supreme Court had it wrong back in 1978. As I wrote in my 2008 book, Broadcast and Internet Indecency: Defining Free Speech, "Broadcast and Internet indecency are fringe speech at the edge of social tolerance, and this is why we can understand free expression values through the social conflicts that routinely emerged." So, the oral arguments are the latest social and legal artifact allowing us to see social values amid a changing technological landscape.