Oh my.  So today, as part of its ongoing effort to look like the hip new regulatory agency on the block, the Federal Communications Commission decided to launch a MySpace page.    Really. Big. Mistake.

I mean, shouldn’t someone over there have known it would take about 2 milliseconds for various cranks to launch into profanity-laced rants that would make George Carlin blush? Sure enough, the page is already littered with some of the most colorful language you’ll ever lay your eyes on, mixed in with some 9/11 conspiracy theories, a plug for the Marijuana Policy Posse, and something about the FCC “build[ing] a cone of terror in [our] homes.”

Go check it out, but avert the children’s eyes first. It ain’t pretty. Which begs the question: Will the FCC apply its  Pacifica indecency standard to its own MySpace page?  Seems like their site is pretty “pervasive” to me, and there could be “children in the viewing audience.”  Time to censor these “fleeting expletives” on the FCC’s MySpace page!

Today, it was my great privilege to guest lecture at Princeton University’s Center for Information Technology Policy. Under the leadership of Ed Felten, who also runs the excellent “Freedom to Tinker” blog, the CITP has quickly become one of America’s premier institutions in the field of IT policy matters. David Robinson, who some of you will remember from his days as an editor at The American, serves as associate director of the CITP program and was kind enough to invite me to speak.  And our own Tim Lee is currently studying there as well.  I wish I was smart enough to get into that program!

The topic of my talk was “The Future of the First Amendment in an Age of Technological Convergence” and I used the opportunity to create a narrated video of this presentation, which I have made to several other groups through the years. In this presentation, I talk about “America’s First Amendment Twilight Zone,” which refers to the fact that identical words and images are being regulated in completely different ways today depending on the mode of transmission. This illogical and unfair situation could eventually threaten the Internet, video games, and all new media with many of the misguided regulations that have long been imposed on broadcast television and radio operators. In my presentation, which you can watch below, I make the case for changing our First Amendment regime to ensure “bit equality”; all speech and media platforms should be accorded the gold standard of First Amendment protection.

The presentation is based upon several other essays, court filings, and law review articles I have written on the topic, including:

• “Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age,” by Adam Thierer, 7/10/07.
• “FCC v. Fox and the Future of the First Amendment in the Information Age,” by Adam Thierer, 1/20/09.
• Joint Amicus Brief of The Center for Democracy & Technology and The Progress & Freedom Foundation, U.S. Supreme Court in the matter of FCC v. Fox Television Stations, by Adam Thierer, John B. Morris, Jr., and Sophia Cope, August 8, 2008

Just FYI, the latest update of my booklet on “Parental Controls and Online Child Protection: A Survey of Tools & Methods” is now live. The new version, Version 3.1, provides minor updates to all sections of the book and a new appendix of relevant research in the field. I issue major updates early each year and 1 or 2 tweaks during the course of the year to reflect the evolution of the parental control and online child safety market and debate.

For those not familiar with the report, it explores the market for parental control tools, rating schemes, education efforts, and initiatives aimed at promoting online child safety. I believe that the parental controls and content management tools cataloged in the report represent a better, less restrictive alternative to government regulation. As I conclude after evaluating that state of the market: “There has never been a time in our nation’s history when parents have had more tools and methods at their disposal to help them decide what constitutes acceptable media content in their homes and in the lives of their children.”

The report is available free-of-charge on the PFF website, and the previous editions of the report are housed there too in case you want to see how it has evolved over the past two years. For those interested in taking a quick look at the report, I have embedded it down below the fold as a Scribd file. Finally, as is always the case, I encourage readers to send me updates and suggestions for how to improve the report and I will incorporate them into future versions.

Lately I’ve been writing about potentially historic upcoming First Amendment case of FCC v. Fox Television Stations. The Supreme Court will hear the case on Tuesday, November 4th. All the briefs in the case are in and can be found on the ABA website here. But I’ve pasted the links for all of them below as well. In coming days and weeks I might be highlighting some of the comments from the briefs. [The docket number for the case is 07-582]. The amicus brief I filed with my friends at CDT can be found here, and I wrote about it last week here on the TLF.

The FCC v. Fox case is the indecency case involving the FCC’s new policy for “fleeting expletives.” I wrote about the Second Circuit Court of Appeals decision here. The full decision is here. The FCC v. Fox case could become the most important First Amendment-related Supreme Court case since FCC v. Pacifica Foundation, which just turned 30 years old last month. Anyway, here are all the briefs in the case, starting with the merit briefs by the lead parties:

Merit briefs

• Brief for Petitioner Federal Communications Commission, et al.
• Brief for Respondent Fox Television Stations, Inc., et al.
• Brief for Respondent Center for Creative Voices in Media, Inc.
• Brief for Respondent NBC Universal, Inc., NBC Telemundo License Co., CBS Broadcasting, Inc., and ABC, Inc.

Amicus briefs

• Brief for National Religious Broadcasters in Support of Petitioner
• Brief for Morality in Media, Inc., in Support of Petitioner
• Brief for Alliance Defense Fund and Family Research Council in Support of Petitioner
• Brief for the Center for Constitutional Jurisprudence in Support of Petitioner
• Brief for the Parents Television Council in Support of Petitioner
• Motion for Leave to File Amicus Curiae Brief and Brief for the Decency Enforcement Center for Television in Support of Petitioner
• Brief for the American Center for Law and Justice and United States Representatives Charles Pickering, Roscoe Bartlett, Kevin Brady, Paul Broun, Danny Davis, John Doolittle, Mary Fallin, Trent Franks, Wally Herger, Jim Jordan, Doug Lamborn, Kenny Marchant, Jeff Miller, Marilyn Musgrave, Joe Pitts, Mark Souder, Tim Walberg and Dave Weldon in Support of Petitioner
• Brief for American Civil Liberties Union, the New York Civil Liberties Union, American Booksellers Foundation for Free Expression, the American Federation of Television and Radio Artists, Directors Guild of America, First Amendment Project, Minnesota Public Radio/American Public Media, the National Alliance for Media Arts and Culture, the National Coalition Against Censorship, the National Federation of Community Broadcasters, Pen American Center, and Washington Area Lawyers for the Arts in Support of Respondent
• Brief for Time Warner, Inc., in Support of Respondent
• Brief for the ABC Television Affiliates in Support of Respondent
• Brief for Public Broadasters in Support of Respondent
• Brief for the National Association of Broadcasters and Radio-Television News Directors Association in Support of Respondent
• Brief for the Center for Democracy & Technology and Adam Thierer, Senior Fellow with the Progress & Freedom Foundation (PFF) and the Director of PFF’s Center for Digital Media Freedom in Support of Respondent
• Brief for Former FCC Commissioners and Officials in Support of Respondent
• Brief for the Thomas Jefferson Center for the Protection of Free Expression and the Media Institute in Support of Respondent
• Brief for the American Academy of Pediatrics, Benton Foundation, Children Now, National Institute On Media and the Family, Parent Teacher Association, and United Church of Christ, Office of Communications, Inc., in Support of Neither Party
• Brief for Free Press, Consumer Federation of America, Consumers Union, New America Foundation, Participatory Culture Foundation, Cuwin Foundation, Ethos Group, ACORN Active Media Foundation, Freenetworks.Org, Monroe Price, Susan Crawford in Support of Neither Party

Along with my friends John Morris and Sophia Cope of the Center for Democracy & Technology, I have just submitted an amicus brief to the Supreme Court in the potentially historic free speech case FCC v. Fox, which will be heard in November.

[Reminder: The FCC v. Fox case is the indecency case involving the FCC’s new policy for “fleeting expletives.” I wrote about the Second Circuit Court of Appeals decision here. The full decision is here. By contrast, the so-called “Janet Jackson case” — CBS v. FCC — took place in the Third Circuit Court of Appeals and that court recently handed down a decision that also went against the FCC. I wrote about the Third Circuit’s decision here.]

The FCC v. Fox case could become the most important First Amendment-related Supreme Court case since FCC v. Pacifica Foundation, which just turned 30 years old last month. Of course, it could be that the Supreme Court simply sticks to the procedural questions regarding whether the FCC moved too far, too fast in reversing it’s long-standing policy of restraint regarding “fleeting expletives.” That’s essentially what the Second Circuit did. On the other hand, the Supremes might reach the substantive First Amendment issues tied up in the Pacifica case. We just won’t know for sure until the case is handed down.

Regardless, in the joint CDT-PFF amicus brief filed today, we argue that the FCC has both gone too far procedurally and that “the time is rapidly approaching for this Court to find that broadcast, like the Internet and other means of mass communication, ‘is entitled to the highest protection from government intrusion’ and that there is no longer a factual ‘basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.'” Citing Reno v. ACLU, 521 U.S. at 863, 870.”

A more detailed summary of our argument follows below. Our brief contends that the “pervasiveness rationale,” which is the basis of the FCC’s authority to regulate broadcast programming, is being challenged by technological convergence, the proliferation of new media platforms, and the widespread availability of parental control technologies. Video content available over broadcast television is available over a variety of other platforms, such as the Internet and mobile devices, and an increasing number of households subscribe to satellite or cable video services. “With broadcast television being just one of the myriad of ways that people can access lawful content (including indecent content), it no longer makes sense from a constitutional or policy perspective to give broadcast speech less First Amendment protection,” we argue.

Parental controls, such as the V-Chip and set-top box controls, allow parents to block content they deem offensive or inappropriate. Better yet, the rise of VCRs, DVD recorders, video on demand, and digital video recorders means that parents can tailor media consumption to their specific needs and values. Those tools are widely available and provide a less restrictive alternative to government regulation. As a result, the FCC can no longer justify broadcast television content censorship on “pervasiveness” grounds. [I have written much more about that point here, here and here.]

Our joint brief also states that complaint data the FCC cites as justification for the expansion of indecency enforcement, has been inflated through accounting changes. These changes in the way the complaints are counted, which were only instituted for indecency complaints, are in violation of the APA. These complaints, mostly generated by a single advocacy group, cannot be a substitute for an analysis of “community standards” and essentially represent a “heckler’s veto” that violates the First Amendment rights of other viewers.

The brief also cites the Commission’s inconsistent analysis of what it deems “indecent” as a violation of both the First Amendment rights of broadcasters and the APA. The inconsistency in what the FCC finds as indecent has a chilling effect on the free expression of content providers and provides inadequate guidance to broadcasters, which is required under FCC statutes.

The CDT-PFF brief can be found online here and I have also embedded the document below via the Scribd reader. [And those interested in this case might also be interested my recent law review article: “Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age.”]

Incidentally, other briefs that have been filed in the matter can be found here. And, last month, I wrote about how personally troubled I was about the lack of support from liberals who have already filed in this case. See: “Liberals Abandoning the First Amendment, Part 3: The Fox Case.”

I was on NPR’s “On the Media” program this weekend discussing the recent Third Circuit Court of Appeals decision striking down the FCC’s fines in the “Janet Jackson case.” As I noted in this lengthy analysis of the decision, the court said that the agency’s recent efforts to expand the parameters of “indecency” enforcement for broadcast programming went too far, too fast. “[T]he FCC’s new policy sanctioning ‘fleeting expletives’ is arbitrary and capricious under the Administrative Procedure Act for failing to articulate a reasoned basis for its change in policy,” the Court held.

“On the Media” host Bob Garfield interviewed me for 5 minutes about the decision and its ramifications. The show can be heard here or you can just read the transcript there. Or you can just listen to it by clicking the button below…

This is the sixth and final installment in a series of essays about the legacy of the Supreme Court’s FCC v. Pacifica Foundation decision, which celebrates its 30th anniversary today. 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. Part 4 showed how that logic is even more misguided in light of modern developments. And part 5 was a recent joint editorial on the issue I co-authored with John Morris of Center for Democracy & Technology.

In this final installment, I thought I would just offer up a some further reading on the issue for those who might be interested in doing further research on the topic. Although it is certainly not an exhaustive list of all the relevant books and law review articles out there, below you find a bibliography of some of the very best material on the issue of the Pacifica case, the “pervasiveness doctrine,” and modern First Amendment jurisprudence. I’ve also embedded a Scribd version of a law review article I penned on these issues last year that ties together all my thinking on this front. It is called, “Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age.”

• Marjorie Heins, Not in Front of the Children: “Indecency,” Censorship, and the Innocence of Youth (New York: Hill and Wang, 2001).

• Jonathan Emord, Freedom, Technology and the First Amendment (San Francisco: Pacific Research Institute, 1991).

• Thomas G. Krattenmaker and Lucas A. Powe, “Converging First Amendment Principles for Converging Communications Media,” Yale Law Journal, May 1995.

• Thomas G. Krattenmaker and Lucas A. Powe, Jr., Regulating Broadcast Programming (Cambridge, Massachusetts: The MIT Press, 1994).

• Robert Corn-Revere, “New Technology and the First Amendment: Breaking the Cycle of Repression,” Hastings Communications and Entertainment Law Journal, Fall 1994.

• Robert Corn-Revere, “Can You Say That on TV?: An Examination of the FCC’s Enforcement with Respect to Broadcast Indecency,” Testimony Before the House Commerce Committee Subcommittee on Telecommunications and the Internet of the Committee on Energy and Commerce, January 28, 2004.

• Robert Corn-Revere, “Can Broadcast Indecency Regulations Be Extended to Cable Television and Satellite Radio?” Progress & Freedom Foundation, Progress on Point 12.8, May 2005

• Jonathan D. Wallace, “The Specter of Pervasiveness: Pacifica, New Media, and Freedom of Speech,” Cato Institute Briefing Paper, no. 35, February 12, 1998.

• Ithiel de Sola Pool, Technologies of Freedom (Cambridge, Mass: Harvard University Press, 1983).

• Christopher S. Yoo, “The Rise and Demise of the Technology-Specific Approach to the First Amendment,” The Georgetown Law Journal, vol. 91, 2003.

• Lawrence H. Winer, “Children Are Not a Constitutional Blank Check,” in Robert Corn-Revere, ed., Rationales and Rationalizations (Washington, D.C.: The Media Institute, 1997).

• John Crigler and William J. Byrnes, “The Curious History of the New FCC Broadcast Indecency Policy,” Catholic University Law Review, Vol. 38, Winter 1989.

• Bruce Fein, “First Class First Amendment Rights for Broadcasters,” Harvard Journal of Law and Public Policy, vol. 10, no. 1, Winter 1997.

• Matthew L. Spitzer, “The Constitutionality of Licensing Broadcasters,” New York University Law Review, vol. 64, November 1989.

• Timothy B. Dyk, “Full First Amendment Freedom for Broadcasters; The Industry as Eliza on the Ice and Congress as the Friendly Overseer,” Yale Journal on Regulation, vol. 5.

• Margaret A. Blanchard, “The American Urge to Censor: Freedom of Expression Versus the Desire to Sanitize Society—From Anthony Comstock to 2 Live Crew,” William and Mary Law Review, Vol. 33, Spring 1992.

• Laurence H. Tribe, “Freedom of Speech and Press in the 21st Century: New Technology Meets Old Constitutionalism“, Progress & Freedom Foundation, Progress on Point 14.19, September 2007

• Adam Thierer, “Parental Control Perfection? The Impact of the DVR and VOD Boom on the Debate over TV Content Regulation” Progress & Freedom Foundation, Progress on Point 14.20, October 2007.

• Adam Thierer, “Who Killed TV’s ‘Family Hour’?“, City Journal, Fall 2007.

• Adam Thierer, “Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age,” Catholic University Law School CommLaw Conspectus, Vol. 15, pp. 431-482, July 10, 2007.

• Adam Thierer, “Images Kids See on the Screen,” Testimony before the Subcommittee on Telecommunications and the Internet, House Committee on Energy and Commerce, June 22, 2007.

• Adam Thierer, “Examining the FCC’s Complaint-Driven Broadcast Indecency Enforcement Process,” Progress & Freedom Foundation Progress on Point no. 12.22, November 2005,

• Adam Thierer, “Parental Controls and Online Child Protection: A Survey of Tools & Methods,” Progress & Freedom Foundation, Version 3.0, 2008.

[Note: This is the fifth in a series of essays about the legacy of the Supreme Court’s FCC v. Pacifica Foundation decision, which turns 30 this week. Here are parts 1, 2, 3, and 4. This installment is a joint editorial I released today with my friend John Morris, general counsel for the Center for Democracy & Technology].

[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.

Additional reading:

• “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.

[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.”

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.

[Note: This is the second 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, a general overview of the issue, is here.]

This morning I attended an excellent Freedom Forum conference on “Indecency & Violence in the Media: FCC v. Pacifica 30 Years Later.” At the event, Lili Levi of the University of Miami School of Law delivered a terrific address entitled “A Short History of the Indecency & Media Violence Wars.” (Incidentally, she is also the author of a highly recommended paper on the topic that is available on SSRN: “The FCC’s Regulation of Indecency.”

Prof. Levi sketched out what she called the “5 Eras of FCC Indecency Enforcement.” Below I will summarize the major developments / trends from each era that she outlined for us today: Era #1 (1930s to 1960s)

• no serious effort by agency to define “indecency”
• an era of moralistic rhetoric, but little direct action by the FCC…
• but that’s because there was a lot of industry self-censorship
• FCC used “regulation by raised eyebrow” (i.e. bully pulpit) to encourage industry to self-censor
• ex: Mae West driven off radio for her “suggestive tone”

Era #2 (1960s to 1973)

• FCC still avoiding defining indecency
• but more fines begin to be levied anyway
• licenses threatened; some are revoked
• but all enforcement was administrative; no judicial review of these decisions
• so constitutional questions remained unclear

Era #3 (1973 to 1987)

• FCC finally adopts a formal definition of indecency in response to George Carlin’s monologue
• Supreme Court hands down Pacifica decision in 1978 giving blessing to FCC actions
• enforcement focus almost entirely on Carlin’s “seven dirty words” = brighter lines of enforcement
• the “seven dirty words” provided a somewhat better indication of how FCC might rule…
• but ambiguity remained about some of the specific cases and contexts

Era #4 (1987 to 2001)

• FCC reverses course and abandons bright line
• reversal largely due to Howard Stern and radio shock jocks
• radio shock jocks creatively used sexual innuendo and double entendre to avoid “7 dirty words”
• Congress starts pressuring agency for stepped-up enforcement
• agency adopts more “generic” approach to indecency enforcement; abandons strict adherence to “7 dirty words” enforcement
• but not a lot of fines issued during this period
• and most of focus was on radio, not TV
• FCC says “context” of broadcasts mean everything, but doesn’t really help nail down what runs afoul of law

Era #5 (2001 to present)

• “an era of stringent indecency enforcement”
• FCC says context counts by uses it more as a sword than shield
• focus shifts more toward television programming
• stepped-up interest in Congress and at FCC in enforcement
• changes in enforcement process make it easier for advocacy groups to flood Enforcement Bureau with complaints
• rise of “automated complaints”
• activist groups (ex: Parents Television Council) effectively use process to raise congressional ire & prompt new activism
• Congress passed law increasing maximum fines 10-fold (from $32,500 to $325,000)
• FCC issues historic fines
• renewed interest in policing “blasphemy”
• documentaries, live programs, and news no longer exempt from FCC attention / fines
• major court cases are filed; still pending
• new interest in expanding regulatory scope to include cable & satellite programming and “excessively violent” programming, even though it is likely unconstitutional for FCC to regulate

And that’s where things stand circa 2008.

In the next essay, I’ll take a closer look at twisted logic behind the Court’s Pacifica decision.

Next Thursday, July 3rd will mark the 30th anniversary of the Supreme Court’s landmark First Amendment decision, FCC v. Pacifica Foundation. Sadly, but somewhat ironically, the anniversary of this decision comes just a few days after we lost America’s greatest modern social satirist George Carlin, whose infamous “seven dirty words” monologue prompted the Supreme Court’s Pacifica decision. After a Pacifica Foundation radio station aired Carlin’s monologue and the FCC took action against that station, a court battle ensued regarding whether the agency had the authority to censor “indecent” content on broadcast radio and television stations.

Unfortunately, when the Supreme Court handed down its Pacifica decision 30 years ago, the First Amendment lost. By a narrow 5-4 vote, the court held that the FCC could impose fines on broadcasters who aired indecent content during daytime and early evening hours. The Court used some rather tortured reasoning to defend the proposition that broadcast platforms deserved lesser First Amendment treatment than all other media platforms. The lynchpin of the decision was the so-called “pervasiveness theory,” which held that broadcast speech was “uniquely pervasive” and an “intruder” in the home, and therefore demanded special, artificial content restrictions.

Over the course of the next week, I plan on posting some thoughts about that twisted logic and the legacy of the Pacifica decision in general. In part 2, I’ll sketch out the broad outlines of FCC indecency enforcement over the past 70 years. In part 3, I’ll be highlighting some of the original deficiencies of the “pervasiveness doctrine.” Part 4 will highlight the irrelevancy of Pacifica and the pervasiveness doctrine in light of recent technological developments. These (and potentially other) installments will highlight why Pacifica was always bad law and is even more misguided and unjust in light of recent marketplace developments.

PFF has just releasing an updated edition of my booklet on “Parental Controls and Online Child Protection: A Survey of Tools & Methods.” The new version, Version 3.0, includes two new appendixes and updates to each section to reflect new parental control tools and programs developed in the last nine months.

The updated report is timely as it comes on the heels of the recently-announced Internet Safety Technical Task Force, which is being chaired by the Berkman Center for Internet & Society at Harvard Law School. I am privileged to serve as a member of the Task Force, which is evaluating various online safety technologies and strategies and then reporting back to state attorneys general with our findings.

Those issues and much more are covered in the latest edition of my report. The report explores the market for parental control tools, rating schemes, education efforts, and initiatives aimed at promoting online child safety. I believe that the parental controls and content management tools cataloged in the report represent a better, less restrictive alternative to government regulation. As I conclude after evaluating that state of the market: “There has never been a time in our nation’s history when parents have had more tools and methods at their disposal to help them decide what constitutes acceptable media content in their homes and in the lives of their children.”

Version 3.0 of the special report, now over 200 pages, contains over fifty exhibits and numerous updates in all five sections of the book. Major updates have been made to the Internet, social networking, and mobile media sections, reflecting the growing importance of those sectors and issues. A greatly expanded section on video empowerment technologies has also been included. Finally, two appendices have also been added: a comprehensive legislative index cataloging over thirty bills introduced in Congress on these issues (complied with John Morris of Center for Democracy & Technology), and a glossary of 35 relevant terms and cases.

The report is available free-of-charge on the PFF website, as are the previous editions. And I am happy to provide hard copies to those who are interested.

PFF has just released my latest paper entitled “Parental Control Perfection? The Impact of the DVR and VOD Boom on the Debate over TV Content Regulation.” In the report, I focus on the extent to which new video technologies, such as digital video recorders (DVRs) and video on demand (VOD) services, are changing the way households consume media and are helping parents better tailor viewing experiences to their tastes and values. I provide evidence showing the rapid spread of these technologies and discuss how parents are using these tools in their homes. Finally, I argue that these developments will have profound implications for debates over the regulation of video programming. As parents are given the ability to more effectively manage their family’s viewing habits and experiences, it will lessen—if not completely undercut—the need for government intervention on their behalf.

This 16-page report can be found at: http://www.pff.org/issues-pubs/pops/pop14.20DVRboomcontentreg.pdf