Censorship is unconstitutional?

Sorry, but I'm a bit lost. If the FCC hands out broadcast liscenses (sp?,) than it would be ok for them to put any details and regulations into the liscense that they want, and because there's only one organization like the FCC, they can make the rules as strict as they want. Could this be considered an illegal monopoly?

Speech may be regulated.
It being as "fundamental" of a right as it gets, it is afforded the highest levels of judical review.
I think some people are confused a bit because they think that government can't touch certain things. They can touch anything.

The question of whether something (a law) is constitutional or not is and has always been a matter of interpretation by the Supreme Court.

The way they do it is by weighing the importance of the Right with the governments right to infringe, regulate, or even prohibit I guess.

The more fundamental the right the greater the burnded on the government to justify its infringement.

There are 3 basic standards of judicial review. a) Strict Scrutiny b) Intermediate and c) rational basis.

It is rare for the Court to ignore stare decisis so most of the constitutional issues have been pretty well established.

The FCC is a regulatory body. They have been given their authority by congress. Speech may be regulated.
There ya go.

reply to post by Res Ipsa


Thank you very much for clearing this up Res Ipsa.

Originally posted by Res Ipsa
Speech may be regulated.
It being as "fundamental" of a right as it gets, it is afforded the highest levels of judical review.
I think some people are confused a bit because they think that government can't touch certain things. They can touch anything.

The question of whether something (a law) is constitutional or not is and has always been a matter of interpretation by the Supreme Court.

The way they do it is by weighing the importance of the Right with the governments right to infringe, regulate, or even prohibit I guess.

The more fundamental the right the greater the burnded on the government to justify its infringement.

There are 3 basic standards of judicial review. a) Strict Scrutiny b) Intermediate and c) rational basis.

It is rare for the Court to ignore stare decisis so most of the constitutional issues have been pretty well established.

The FCC is a regulatory body. They have been given their authority by congress. Speech may be regulated.
There ya go.

Yes I too found your posts very informative and thanks to the poster who corrected my mixup with the Declaration, I stand corrected.

- Con

reply to post by Res Ipsa

Thanks Res, that was an excellent practical summary.

Looked into this a little more; there was a case in 2006 against the FCC claiming "new standards adopted by the Federal Communications Commission to censor 'indecency' on the airwaves are overly vague and unconstitutional"* Here's the friend-of-the-court brief:

FOX TELEVISION STATIONS, INC. et al. v. FEDERAL COMMUNICATIONS COMMISSION et al.

There's lots of cases, agency rulings, statutes, etc., cited in there that may be of interest. From there, I found FCC vs Pacifica Broadcasting Foundation, the landmark 1978 case involving George Carlin's "Filthy Words" monologue. From the linked article:

There were no specific laws or surveillance by regulatory groups to assure that indecent and obscene material would not be broadcast. Broadcasters were trusted to regulate themselves and what they broadcast “suitable” and compliant material over the airwaves. Therefore, when the case of the FCC vs. Pacifica made its way to the Supreme Court it was a dangerous and controversial decision for the Supreme Court to make. The ultimate question came down to, could the government regulate the freedom of speech?

Carlin's monologue was speech according to the first amendment. (Simones, 1995) Because of this, Pacifica argued, "the first amendment prohibits all governmental regulation that depends on the content of speech."(Gunther, 1991) "However there is no such absolute rule mandated by the constitution," according to the Supreme Court.(Gunther, 1991). Leaving the question of "whether a broadcast of patently offensive words dealing with sex and excretion may be regulated because of its content. The fact that society may find speech offensive is not a sufficient reason for suppressing it."(Gunther, 1991) The Supreme Court deemed that Carlin’s words offend for the same reasons that obscenity offends. They also state "these words, even though they had no literary meaning or value, were still protected by the first amendment."(Gunther, 1991)

There's also some more practical information, from a radio station, here:

The FCC, Freedom of Speech, and Legal Responsibilities for DJs

reply to post by Ian McLean


Thank you so much Ian, along with Res's summary, that's exactly what I was looking for

I had a great epiphany on another thread concerning the "Constitution" and I want to share it with you guys.

As you might gather, I get a little curt when it comes to "different" interpretations of the Constitution. But one dude was so far off (on the other thread) that it struck me...bam.

We have one Bible and many religions that say they know what it means.
Many of those religions, as you know, sure have different takes on it.
Well here we have the Constitution and we have almost as many different takes.
The Supreme Court is the final word for the Constitution and the Pope is the final word on Scripture for Catholics.

My "Constitutional Religion" (I'm going to have to coin a better term) anyway, my authority is the Supreme Court on Constitutional "doctrine". I don't have to agree with it, but that is what I use to define what is and isn't constitutional.

This epiphany has given me a whole new tolerance or patience for people's different "interpretation" of the Constitution.

So cheers!

reply to post by Res Ipsa

That's well thought out. Of course, I'd be careful about concluding anything from analogies drawn between religion and government -- the founders made excellent points about the differences/distinctions thereof.

But that's a great technique for self-evaluating tolerance, now that I think about it -- take something that raises ire, and make a parallel to most closely held beliefs. Then, try evaluating within that context. Excellent way to get new directions for introspection and perspective.

Your right, I don't regard the Supreme Court as the penultimate authority on the Constitution. I think the powers of the court are described quite well in the Constitution, but I also believe that the preamble is not just rhetorical. I still find further insight into considering the philosophical underpinnings of the founders' intentions, for example as given in the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed

So much there. It took me the longest time to realize that there is a world of difference between 'self-evident' and 'obvious'.

Ian, I was going to clarify here about how when it comes to the Constitution it is interpreted as freely as the Bible, and that I wasn't at all comparing government with religion. BUT....Yes we can!

follow me on this;

Lets say that there is a religion called "American"
within that religion we have denomanations, "Republican", "Democrat" and some others.
The "American's" base their religion on the Constitution.
But like any other traditional religion, they all don't agree on the interpretation of their Bible, the Constitution.
For example; some like yourself would be akin to a Bible literalist. You believe what is written between the 4 corners is the Constitution and should be interpreted literaly.
a lot of others look at the "intent" of what is written in the Constitution (just like the Bible)
a lot try to balance between both.
a lot try to find a way to interpret it to meet their "beliefs" (making abortion protected by the Constitution)
Religion is divisive and "Americans" are no different. We all can't even agree on what it is to be an "American"

I think, I can find more similarities and comparisons between our government and religion, than you can find differences.

I also think, that if more Americans realized that they are in fact a member of the "American" religion, they could better understand how things work. (as long as they understand how a traditional religion works and the problems they have and the challenges we all have to get along)

For one, the members of the "American" religion would insist on non-denomanational Supreme Court Justices!

What do you think? Did I go too far?

reply to post by Res Ipsa

Res, that's not going too far. In fact, its quite an interesting analogy! I, like anyone, am wary of being pigeonholed, and I don't really like to pigeonhole others, but I'll play along here.


The analogy is: Constitutional interpretation :: Biblical interpretation


Here's one categorization of interpretative techniques:

• Popular authority: truth is what someone else says, this person being approximately as qualified, within the system of truth, as you.
  
• Ordained authority: truth is what someone else says, this person having status or qualification, within the system of truth, that you do not.
  
• Absolute literalism: truth is what established first-source materials say it is, invariant of individual interpretation.
  
• Relative literalism: truth is what established first-source materials say it is, relative to and effecting individual interpretation.
  

The parallel Constitutional interpretation techniques, via:

• Reliance on mainstream news reporting and popular opinion
  
• Reliance on courts, precedent, and professional legal opinion
  
• Absolute reading of the language of the Constitution
  
• The literal Constitution in context of an evolving understanding of its philosophical basis
  

The parallel Biblical interpretation techniques, via:

• Popular non-denominational clergy (eg, some televangelists)
  
• Formal clerical authority (eg, Catholicism)
  
• Direct, commonly-accepted literal interpretation of scripture (eg, prima scriptura)
  
• Evolving personal interpretation of scripture as truth (eg, solo scriptura)
  

How's that? There are, certainly, many other ways of categorizing and interpreting! For example, as you mention, those who try and synthesize a balance, and those who look for only those truths that pre-justify their current beliefs. I really like the idea of a 'non-denominational' Supreme Court, from a point-of-view of fairness, but I doubt anyone could honestly and effectively split themselves between such disparate methods of determining 'truth'! Humans seem to be unable to express such paradox in a way that others can determinably agree or disagree with.


Edit: grammar typo

Edit 2: Hmm, a google search contrasting 'sola scriptura' with 'solo scriptura' yields very confusing differences of interpretation and much argument. Perhaps I didn't use those terms 'correctly' -- hopefully you'll understand what I'm trying to say!


[edit on 9-6-2008 by Ian McLean]

Friggin Brilliant Ian!
You have taken it, and expressed it better than I certainly did.

reply to post by Res Ipsa



Why not rely on the actual words of the document, and of those who wrote it instead of the "interpretations" of it by 9 SCOTUS justices who let their personal opinions and biases influence their interpretation?