Well, even if some regulation is permissible, the kind of regulation that the FCC has done here is regulation that gives it complete discretion as to what kind of speech to go after and what not to go after; that it has not tied itself in any way to any kinds of standards. And, it's, you know, evident in the notion that this — the way that this policy seems to work, it's like nobody can use dirty words or nudity except for Steven Spielberg and that there's a lot of room here for FCC enforcement on the basis of what speech they think is kind of nice and proper and good. And so that's a serious First Amendment issue.
Justice Elena Kagan, FCC v. Fox Television Stations, Inc., No. 10-1293, Transcript at 51:20-52:8 (emphasis ours).
[Hat tip to Adam Liptak.]