This week, an appeals court in Philadelphia rejected two attempts by the federal government to shield the public from indecency online and in TV broadcasts. The rulings &

both of which upheld decisions made by lower courts &

add to a mounting pile of judicial rebukes of lawmakers and regulators who consider the First Amendment little more than a suggestion. You'd think that policymakers would have learned by now that the government runs afoul of the Constitution whenever it substitutes its judgment about offensive content for a parent's choices. Unfortunately, you'd be wrong.




On Monday, the 3rd U.S. Circuit Court of Appeals ruled that the Federal Communications Commission acted arbitrarily when it fined CBS $550,000 for airing a half-second shot of Janet Jackson's right breast loosed from its studded leather mooring. This infamous "wardrobe malfunction" at the 2004 Super Bowl was the kind of fleeting display the FCC had tolerated for nearly three decades, the three-judge panel ruled, and the commission must not change that policy without notice or explanation.




The next day, a different 3rd Circuit panel upheld a permanent injunction against the Child Online Protection Act, the law Congress enacted after the courts threw out parts of the 1996 Communications Decency Act. Both measures aimed to protect minors from material online that's not suitable for them. Yet both violated the First Amendment, in the courts' view, because they blocked too much material and were less effective than alternative approaches, such as filtering programs.




The underlying message here is the same one the courts have been sending to Congress and the FCC for more than a decade. The tools Washington uses to protect children from offensive material are too crude for the job. By contrast, the tools available to parents are improving every year. Television sets, cable and satellite TV receivers, disc players, game consoles and computers can all be programmed to filter out violent, profane or suggestive content.




Nevertheless, the state of New York just enacted a video game law that replaces voluntary ratings and parental controls with potentially unconstitutional state mandates. And the FCC wants to require licensees on a new set of airwaves to block material that would harm 5-year-olds, as if anyone in government could define what that might be. Protecting kids is a worthwhile goal for policymakers, but there's no point in adopting rules the courts are sure to reject.




"" Los Angeles Times