This ruling was long overdue. On July 13, in Fox Television Stations v. FCC, the Second Circuit Court of Appeals invalidated the FCC’s increasingly expansive rule against “indecency” in radio and TV. The unanimous three-judge panel said the current indecency rule violates broadcasters’ First Amendment rights and creates a chilling effect on legitimate, free expression.

The FCC first began exercising its authority to ban “indecent” over-the-air broadcast content in 1975, and in ‘78 the Supreme Court upheld the FCC’s indecency action against a station that aired George Carlin’s “Filthy Words” monologue. The ruling, in FCC v. Pacifica Foundation, was a narrow one. Overriding the First Amendment was justified because radio was a pervasive medium uniquely accessible to young children and because the program aired at a time when children were likely to be in the audience, the Court said.

Initially, the FCC seemed to understand that its authority to regulate certain words was very limited. But in the three decades since Pacifica, the agency has trended toward more aggressive enforcement, causing confusion at broadcast stations and sparking considerable public debate. The heavy-handed trend moved up another notch in 2004, when the FCC declared that airing even spontaneous, “fleeting and isolated expletives” — such as might occur during live coverage of an acceptance speech at an awards ceremony — could subject the broadcaster to heavy fines.

Fox TV and other broadcast organizations sued to have this expanded indecency rule tossed out.

In a decisive opinion, the Second Circuit called into question the entire underpinning of rules against “indecent” content, noting that the media landscape has changed since Pacifica. Broadcasting is no longer the dominant medium it once was, and parents now have “V-chip” blocking technology to shield kids from crude content if parents so desire. But even if some form of indecency rule is constitutional, this particular rule is not, the court said. The rule is simply too vague and riddled with inconsistency — unacceptable when liberty of expression is at stake.

For example, the court noted, the indecency rule put government in the ridiculous role of declaring that “bullshit” in a “NYPD Blue” episode was patently offensive, but “dickhead” was not.

“There is ample evidence in the record that the FCC’s indecency policy has chilled protected speech,” the court said, especially when applied to live broadcasts. Therefore, the policy is unconstitutional.

Understandably, some members of the viewing and listening public are concerned about crude and even shocking content in broadcasts. And they will likely criticize the Second Circuit’s ruling, saying the court didn’t give enough weight to “protecting families.” But to many others, the FCC’s mushrooming fines against broadcasters became a classic example of wasteful, futile, puritanical meddling by government bureaucrats. And as a matter of First Amendment law, it has long been understood that crude expression is protected along with the thoughtful and eloquent (see Cohen v. California, 1971).

The FCC may appeal to the U.S. Supreme Court, or it might attempt to rewrite its indecency ban in a way that’s more clear and narrowly tailored. An even better choice by Congress and the FCC would be to drop the whole idea.