[Note: This is the third in a series of essays about the legacy of the Supreme Court’s FCC v. Pacifica Foundation decision, which celebrates its 30th anniversary on July 3rd. Part 1, presented a general overview of the issue. Part 2 sketched a short history of FCC indecency regulation. This installment will examine the misguided logic of the Court’s reasoning in Pacifica as it stood in 1978. Part 4 will then examine why that logic is even more misguided in light of modern developments.]
For the past three decades, regulation of television programming has been premised on the “pervasiveness rationale” as articulated in the landmark Supreme Court case FCC v. Pacifica Foundation. In Pacifica, in a 5-4 plurality decision, the Court held:
Of all forms of communication, broadcasting has the most limited First Amendment protection. Among the reasons for specially treating indecent broadcasting is the uniquely pervasive presence that medium of expression occupies in the lives of our people. Broadcasts extend into the privacy of the home and it is impossible completely to avoid those that are patently offensive. Broadcasting, moreover, is uniquely accessible to children.
In one portion of the decision, Justice John Paul Stevens, who authored the majority opinion, even referred to broadcast signals as an “intruder” into the home.
There were always serious problems with the “media-as-invader” logic of Pacifica.
First, and most obviously, no one ever forced parents to bring television sets or radios into their homes! These devices don’t have legs; they didn’t just walk into our homes uninvited. We put them there. Far from being intruders, they are more akin to invited guests. Consequently, we should exercise some responsibility over them. “At its root,” therefore, Jonathan Wallace has argued that, “the pervasiveness doctrine relies on a stunted view of individual responsibility.”
Unfortunately, however, the Pacifica Court focused exclusively on the signals that were being beamed to those devices, implying that just becuase those electromagnetic waves could pass through the walls of our homes that meant we were powerless to stop them. It was completely poppycock. Again, no one forced us to have those devices in the home, and we were always free to turn them off or at least turn the channel to something we found appropriate for ourselves or our children. As Jonathan W. Emord argued in his brilliant book, Freedom, Technology, and the First Amendment, “The fallacy in [the intruder-in-the-home] argument is its presumption that the viewer or listener is a captive audience rather than a willing recipient of information.”
Second, broadcast media were really not any more “pervasive” or “uniquely accessible” to children than other forms of media or speech in 1978. Newspapers, for example, were extremely pervasive at the time. Most papers were very cheap (some free) and were delivered right to the front door for junior to pick up and see murder and mayhem on pg A1 and bra ads on pg A2. And yet papers continued to be accorded the gold standard of first Amendment protection while radio and TV broadcasters were treated like second-class citizens in the eyes of the Court. It was completely illogical and total betrayal of the First Amendment’s clear prohibition against such regulation of speech.
Third, Pacifica represented an open-ended grant of government power to the majority to impose its will on minority viewpoints. Our entire culture and all forms of human communications would need to be severely restricted if government really wanted to completely protect children from all objectionable material. In doing so, a great deal of material demanded by adults would necessarily need to be denied to them in an effort to adequately protect children. But as Justice Felix Frankfurter noted in Butler v. Michigan (1957), if the First Amendment is to retain its power, government must avoid enactments which “reduce the adult population… to reading only what is fit for children.” This principle was reaffirmed by the Court in its unanimous 1997 decision in Reno v. ACLU when the court noted that the government’s interest in protecting children, “does not justify an unnecessarily broad suppression of speech addressed to adults.” This is especially the case since, according to U.S. Census Bureau statistics, 68 percent of homes do not have any children under 18 years of age in them. It is very unfair to reduce the level of content received by those homes to what is only fit for a child.
Pacifica was a betrayal of that principle. It represented an open-ended grant of government power that allowed those in power (or those who had access to them) to impose their tastes or will on the rest of us. As Justice William Brennan argued in his dissent to Pacifica: “The Court’s balance… fails to accord proper weight to the interests of listeners who wish to hear broadcasts the FCC deems offensive. It permits majoritarian tastes completely to preclude a protected message from entering the homes of a receptive, unoffended minority.”
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In the next installment, I will make it clear that whatever legitimacy Pacifica’s pervasiveness rationale might have once had, it has been largely eroded by modern media developments.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.