Reason

 

Yesterday I noted the 2nd Circuit's decision rejecting the FCC's ban on "broadcast indecency" as unconstitutionally vague. "By prohibiting all 'patently offensive' references to sex, sexual organs, and excretion without giving adequate guidance as to what 'patently offensive' means," the appeals court concluded, "the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive." Our coverage of John Stagliano's obscenity trial shows that the law he is charged with violating raises the same problems. This is not a coincidence, because the definition of obscenity, a category of speech that the Supreme Court has deemed undeserving of First Amendment protection, was the model for the FCC's definition of broadcast indecency, which the Court has said can be restricted to certain hours without violating the First Amendment.

 

In declining to dismiss the indictment earlier this year, Leon said the federal obscenity statutes are not unconstitutionally vague as applied to Internet speech. "Although public morality may be an insufficient justification for regulating private conduct in some cases, it is certainly a sufficient justification for regulating the sort of public conduct at issue here," Leon wrote. ...

 
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