Last week, the administration regrettably refrained from appealing to the Supreme Court a review of court decisions related to the FCC’s broadcast ownership rules.

Federal law requires the FCC to review its broadcast ownership rules at least once every two years. In the past nine years, the FCC has conducted only two such reviews, both resulting in rule changes. The latest rules were reversed by the Third Circuit primarily for administrative law reasons. So the pre-existing rules take effect.

Tribune Company, the major broadcast networks, and other broadcast companies have received temporary waivers of the ownership rules from the FCC under the assumption that new rules would by now be in place. New rules now are years away, well after the temporary waivers will expire.

More troubling is that broadcasters now face FCC ownership rules effectively limiting their speech but lacking either a statutory or constitutional foundation. For example, a broadcaster cannot purchase a newspaper in the same market. The federal government has strong antitrust laws to protect consumers from abuses of market power; the FCC ownership rules have a different, and unsound, basis.

The government has well-recognized reasons to limit certain forms of speech based on direct harm to the audience: public safety (shouting “fire” in a crowded hall); public health (incorrect dosage instructions for medications); and torts (slander or libel).

Falling outside these categories, the FCC ownership rules limit all forms of speech not based on harm to the public audience but based on the identity of speaker, the broadcast owner. It is difficult to justify any speech restrictions, particularly those based merely on the identity of the speaker, with any reasonable reading of the Constitution.

The 1969 Supreme Court case, Red Lion Broadcasting Co. v. FCC, has supported the FCC’s authority to regulate substantially the conditions of broadcast licenses including speech and ownership. Red Lion held that, because broadcast spectrum is “scarce,” the federal government need meet only a reduced legal standard to rationalize limitations on ownership of licenses, and thus on the speech of the identifiable owners.

Of course, practically all resources are scarce, but it does not follow that the federal government can regulate speech as it pleases. Many legal scholars believed that the Supreme Court would leap at the first opportunity to reverse Red Lion. But the forecasts of rationality have proved wrong; the Supreme Court has dodged reviewing the issue, and at times even endorsed it.

The Solicitor General usually helps bring cases before the Supreme Court where a federal agency has lost litigation before an appellate court. On the surface, the Third Circuit Court opinion appears to be a garden variety administrative law case. Did the public record support, and did the FCC adequately explain, the foundation for its quantitative rules?

But the broadcast networks and several newspapers also want to challenge the constitutionality of the FCC ownership rules.

The Solicitor General’s Office is conflicted and compromised. On one hand, it coordinates the Supreme Court appeals of cases where federal agencies lose in lower courts, such as this. On the other, the Solicitor General’s Office is also charged with defending the constitutionality of federal law, an apparently unavoidable issue in the current litigation. It cannot defend the broadcast ownership rules without exposing them to constitutional review.

The Supreme Court rarely reviews a case where the federal government has lost but is unwilling to appeal. The Supreme Court should give special consideration to instances, such as this, where the very constitutionality of the conduct of the federal government itself is challenged.

A Red Lion reversal may affect the FCC’s speech regulations well beyond broadcast ownership rules, possibly including indecency rules. Some may see such an outcome as a victory for purveyors of offensive material. The widespread availability of pornographic and offensive material has led many reasonable individuals to encourage the federal government to limit offensive speech on grounds of harm to the audience.

Paradoxically, the mere presence of censorship implicitly certifies as decent and acceptable all material that survives review. Offensive material has flourished under Red Lion while our confidence in reasoned interpretations of the First Amendment has waned. It is time for the Supreme Court to review both the legal basis and constitutionality of broadcast ownership rules.

A former FCC commissioner, Mr. Furchtgott-Roth is president of Furchtgott-Roth Economic Enterprises. He can be reached at hfr@furchtgott-roth.com.