I’ve been reading the briefs in FCC v. Fox (petitioner, respondent, petitioner’s reply) and its been hard for me to take any of these suits seriously. They’ve tried with difficulty to codify profanity and ‘obscenity’ but perhaps Justice Douglas was right when he said pornography ,
My favorite balancing test came from Judge Level of the Second Circuit in a dissent:
Judge Leval did not consider the FCC’s policy with respect to the word “shit,” although he strongly suggested that he did not consider that term to be indecent. Id. at 59a n.18 (reasoning that “there is an enormous difference between censorship of references to sex and censorship of references to excrement” because, “[f]or children, excrement is a main preoccupation of their early years”).
Res. Brief at 15. Can anyone do better? What is an actionable line to decide when obscenity is punishable?