osewalrus (osewalrus) wrote,
osewalrus
osewalrus

Supreme Court Cheats To Uphold Indecency

The Supreme Court just upheld the FCC's indecency decision. While mildly unhappy with the result (I dislike the indecency rule, but the problem is more complex than simply saying "parents -- keep your children in caves and don't let them visit their friends' houses), I am particularly unhappy with the Supreme Court's decision to duck the Constitutional analysis.

The Administrative Procedure Act analysis is, I believe, correct. The Second Circuit did not give the agency proper deference wrt its fact finding and its adjudication. But the Court ducked the real question of whether the Constitutional analysis under Pacifica remains valid on the grounds that the lower court did not address the constitutionality of the FCC's decision. But the lower court only refrained from addressing this because lower courts don't address constitutional issues if they can avoid it.

Looks like they remained for a constitutional anlysis.
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