The Second Circuit just threw out the FCC’s broadcast indecency rules—which had led to heavy fines for “fleeting expletives”—as “unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here.” What’s ultimately most important about this decision is not what the court did, but what it said: The Constitutional framework that has allowed broadcast censorship has been rendered obsolete by the rise of the Internet and parental empowerment tools for new and old media.
In short, the court utterly rejected the Supreme Court’s 1978 Pacifica decision—which gave the FCC great discretion in regulating indecency on broadcast radio and television in order to protect children who might be in the audience during daytime and early evening hours, citing the unique “pervasiveness” and “invasiveness” of broadcasting into the home. The court fully embraced what we’ve been saying for years—neither rationale holds true anymore:
we face a media landscape that would have been almost unrecognizable in 1978. Cable television was still in its infancy. The Internet was a project run out of the Department of Defense with several hundred users. Not only did Youtube, Facebook,and Twitter not exist, but their founders were either still in diapers or not yet conceived. In this environment, broadcast television undoubtedly possessed a “uniquely pervasive presence in thelives of all Americans.”
The same cannot be said today. The past thirty years has seen an explosion of media sources, and broadcast television has become only one voice in the chorus. Cable television is almost as pervasive as broadcast…. The internet, too, has become omnipresent, offering access to everything from viral videos to feature films and, yes, even broadcast television programs…. Moreover, technological changes have given parents the ability to decide which programs they will permit their children to watch. (15-16)
Thus, the Second Circuit all but begged the Supreme Court to throw out Pacifica completely, but quickly noted that it is “bound by Supreme Court precedent, regardless of whether it reflects today’s realities” (17). Fortunately, the court was able to reach the same result on vagueness grounds. It’s worth reading this key passage to see what a consistent approach to the First Amendment would look like:
Every television, 13 inches or larger, sold in the UnitedStates since January 2000 contains a V-chip, which allows parents to block programs based on a standardized rating system. 47 U.S.C. § 303(x). Moreover, since June 11, 2009, when theUnited States made the transition to digital television, anyone using a digital converter box alsohas access to a V-chip. CSVA Report, 24 F.C.C. Rcd. 11413, at ¶ 11. In short, there now exists a way to block programs that contain indecent speech in a way that was not possible in 1978. Infact, the existence of technology that allowed for household-by-household blocking of “unwanted” cable channels was one of the principle distinctions between cable television andbroadcast media drawn by the Supreme Court in [its 2000 decision striking down cable filtering mandates, U.S. v. Playboy]. The Court explained:
The option to block reduces the likelihood, so concerning to the Court in Pacifica,that traditional First Amendment scrutiny would deprive the Government of allauthority to address this sort of problem. The corollary, of course, is that targeted blocking enables the Government to support parental authority without affectingthe First Amendment interests of speakers and willing listeners – listeners forwhom, if the speech is unpopular or indecent, the privacy of their own homes maybe the optimal place of receipt.
Playboy, 529 U.S. at 815 (internal citation omitted). We can think of no reason why thisrationale for applying strict scrutiny in the case of cable television would not apply with equalforce to broadcast television in light of the V-chip technology that is now available. (16-17).
It’s pretty remarkable for a court to come out so strong against a longstanding precedent when they can resolve a case without doing so. Indeed, courts generally follow a strict canon of interpretation that says they should skip right to simpler issues that can resolve a case—vagueness, in this case. The fact that the Second Circuit felt it necessary to spend nearly three pages debunking Pacifica is the clearest statement yet that it’s time for us to apply the First Amendment consistently across all media.
I only hope the FCC is brash enough to appeal (knowing it might well lose the farm, to to speak), and that the Supreme Court is brave and principled enough to say what the Second Circuit has said so beautifully: There’s no justification for treating broadcasters as second class speakers. The First Amendment should apply equally across media!