For the last few years, the Federal Communications Commission (FCC) has been on a crusade about indecency on television, broadly interpreting its limited authority to regulate indecency to include an ever-widening swath of content. In one of its most troubling moves, it reversed over thirty years of well-reasoned policy that held that so-called "fleeting" expletives -- single uses of common curse words (such as in a live broadcast) -- would not lead to indecency determinations or fines.

In a significant victory for free expression, the U.S. Court of Appeals for the Second Circuit recently put a stop to the new policy, finding it arbitrary and capricious and unsupported by reasoned explanation. The court also cast doubt on the constitutional underpinnings of the FCC’s indecency authority, saying that it was extremely skeptical that the FCC would ever be able to "provide a reasoned explanation for its 'fleeting expletives' regime that would pass constitutional muster."

The Center for Democracy has been following the escalation in indecency enforcement in the broadcast medium closely because of its implications for media convergence. As TV and TV-like programming migrates to the Internet and network based devices, the high free expression protections afforded the Internet by the Supreme Court appears to be on a collision course with the outdated broadcast indecency rules.  But the changes in the Court over the decade since the ACLU v Reno decision (which held the Internet to be fully protected under our First Amendment) and dramatic changes in Internet technology leave the outcome less than assured.

The question is already being addressed in Europe in precisely the way that free expression advocates in the U.S. have most feared. In a recent move, the EU adopted what is commonly known as the "TV without frontiers" directive which seeks to import a wide variety of TV-based content restrictions now aimed at child protection on television into the Internet in order to create a "level playing field" between media. I will skip the details here except to say that the directive's tortured effort to limit the new rules on Internet to audiovisual content that have the characteristics of television is destined to lead to confusion and self-censorship, given the ever evolving nature of the medium.

That is why the Second’s Circuit’s strong rebuke of the FCC here in the United States is so welcome. CDT filed a brief in the case criticizing the FCC's expansive view of its authority and questioning whether that authority makes any constitutional or practical sense in a converged media market where control of content is increasingly in the hands of the user.

What made the Second Circuit ruling so remarkable was not just the legal decision (although welcome) but rather the "dicta" -- discussion that went beyond the specific holding of the case. After the court set out its decision, it spent an additional nine pages setting out the facts that support its conclusion that technological advancements and convergence have eroded the basis of the commission's authority to regulate broadcast content altogether.

Most importantly, the appeals court said: "technological advances may obviate the constitutional legitimacy of the FCC’s robust oversight." The court further explained that the "proliferation of satellite and cable television channels -- not to mention internet-based video outlets -- has begun to erode the 'uniqueness' of broadcast media, while at the same time, blocking technologies such as the V-chip have empowered viewers to make their own choices about what they do, and do not, want to see on television."

In 1996, we successfully argued to the Supreme Court that the Internet did not need a censorship regime, due in large part to the ability of Internet users to control their online experience. The "user empowerment" tools to support user choice have become far more robust since that decision and with convergence, such tools are available for a wide range of digital media. The days of passive "viewers" are fast coming to an end, replaced by an age of active "users" who can control their families' video and other online experiences. In light of these profound changes, the courts are right to question whether the FCC's censorship authority makes any sense at all.