[Note: This is the fourth 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. Part 3 discussed the misguided logic of the Court's reasoning in Pacifica as it stood in 1978. This installment will examine why that logic is even more misguided in light of modern developments.]
Whatever legitimacy Pacifica’s “pervasiveness rationale” might have once had, it has been largely eroded by modern media developments.
First, the pervasiveness rationale for media regulation fails today because new content tailoring technologies make it easier than ever before for parents to manage media in their homes and in their lives of their children. It is impossible to consider video programming an “intruder” in the home when tools exist that can help parents almost perfectly tailor viewing experiences to individual household preferences.
When Justice Stevens argued in Pacifica that broadcast signals represented an “intruder” in the home, he supported that claim by noting that: “Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content.” While that may have reflected the state of technology and TV viewing at the time, it is completely at odds with modern realities. In 1978, the viewing experience was a more passive affair and consumers had very few ways to control that experience unless they turned off the television altogether. Today, by contrast, viewers (including parents) have the tools to “tune in and out” at will, and they have abundant “prior warnings” about program content thanks to the existence of ratings, program information, and electronic program guides. These tools help parents restrict or tailor the viewing experience in advance according to their values and preferences.
Second, there is no basis in fact for claiming that one type of media platform (namely, broadcasting) is “pervasive” in light of the abundant video options available to consumers. Moreover, newer video platforms are actually becoming more pervasive in the lives of children. As NBC noted in a filing before the U.S. Court of Appeals Second Circuit in late 2006:
The nearly 30 years since Pacifica have similarly eviscerated the notion that broadcast content is “uniquely accessible to children” when compared to other media. The availability of alternative media sources is even more pronounced with respect to younger generations than with adults…
Like all media content, broadcast programming is accessible by children to some degree, but certainly it is no longer uniquely available when compared to the countless other avenues through which children up to age 18 receive information. These technological developments have doctrinal significance. Now that Pacifica’s underpinnings have been undermined, there is no reasoned basis for treating content-based restrictions on the speech of broadcasters differently than content-based restrictions on other speakers.
In other words, in a world of media abundance, technological convergence, and cross-platform media flows, nothing is pervasive in a relative sense. There are countless media outlets and technologies vying for our increasingly scarce attention spans. Consequently, it is illogical to claim that any one media platform or provider should have a unique regulatory status relative to the many other competing media outlets and technologies in the marketplace.
And even if it remains the case that broadcast stations and programs continue to fetch a large number of viewers and listeners, this cannot be the standard by which lawmakers determine a medium’s First Amendment treatment. The danger with such a “popularity equals pervasiveness” doctrine is that it contains no limiting principles. If Congress can censor speech on a given media platform whenever 51 percent of the public bring it into their homes, then the First Amendment will become an empty vessel. Indeed, it would mean that all cable television channels and all Internet websites could be regulated today since more than 50 percent of U.S. households have access to them. As First Amendment expert Robert Corn-Revere has argued, “To suggest that the banality or popularity of some television shows somehow justifies greater government regulation is much like arguing that freedom of the press should be suspended because more people read romance novels than the classics.”
The logic of Pacifica, therefore, is now moot. The “pervasiveness” rationale for government regulation of video content is an aging relic of bygone media and regulatory era. It would be a mistake to accord lesser First Amendment protection to any type of speech or media provider based on that rationale now that parents have been fully empowered to control the media content that enters their homes.
* “Parental Control Perfection? The Impact of the DVR and VOD Boom on the Debate over TV Content Regulation” by Adam Thierer, Progress on Point 14.20, October 2007.
* “Freedom of Speech and Press in the 21st Century: New Technology Meets Old Constitutionalism” by Laurence H. Tribe, Progress on Point 14.19, September 2007
* “Who Killed TV’s ‘Family Hour’?” by Adam Thierer, City Journal, Fall 2007.
* “Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age,” by Adam Thierer, Catholic University Law School CommLaw Conspectus, Vol. 15, pp. 431-482, July 10, 2007.
* “Images Kids See on the Screen,” Testimony by Adam Thierer, before the Subcommittee on Telecommunications and the Internet, House Committee on Energy and Commerce, June 22, 2007.
* “Parental Controls and Online Child Protection: A Survey of Tools & Methods,” by Adam Thierer, June 20, 2007.
*”The Complexities of Regulating TV Violence,” by Adam Thierer, PFF Progress on Point 14.12, June 15, 2007.