It’s time to move forward to 1791.


In an unusually aggressive step, Fox Broadcasting yesterday refused to pay a $91,000 indecency fine levied by the Federal Communications Commission for an episode of a long-canceled reality television show, even as the network fights two other indecency fines in the Supreme Court.

Despite the sharp reduction, Fox said it would not pay the fine on principle, calling it “arbitrary and capricious, inconsistent with precedent, and patently unconstitutional” in a statement released yesterday.

There is no compelling government interest in preventing whipped-cream-covered nipples on television. There is possibly a compelling parental interest in preventing their children from seeing whipped-cream-covered nipples on television. (This possibility is why the networks may have a compelling business interest to refrain from showing whipped-cream-covered nipples on television.) But it’s clear that the First Amendment really isn’t as complicated as we make it in aiming to protect our precious children. Unlike this sentiment:

“We believe in enforcing indecency standards, especially when children are watching,” said FCC spokeswoman Mary Diamond.

I’ll leave the question of “standards” alone, particularly the clarity of those rules. But the first question to that is obvious: how does the government know when children are watching? If nothing else, with the expansion of cable television and the rapid development of the Internet, any prior claims that FCC censorship mattered are now moot.