CDT-PFF Supreme Court Brief in FCC v. Fox Case

by Adam Thierer on August 8, 2008 · Comments

Supreme Court 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.
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Comments Posted in: First Amendment, Free Speech & Online Child Safety

Media Metrics: The Report

by Adam Thierer on July 15, 2008 · Comments

MM front cover Faithful readers will recall that, several months ago, I penned a 7-part “Media Metrics” series that took a hard look at the health of the media marketplace. Today, the Progress & Freedom Foundation is releasing a greatly expanded version of these essays that I have put together with my PFF colleague Grant Eskelsen. In this 100-page special report, “Media Metrics: The True State of the Modern Media Marketplace,” we begin by noting that heated debates about the state of the media marketplace continue to rage in Washington, and opinions seem to range from grim to outright apocalyptic. As we note on pg. 1:

Many people—including a large number of legislators and regulators—argue that America’s media marketplace is in a miserable state. Some claim that citizens lack choice in media outlets and that options are just as scarce as ever. Others believe that media “localism” is dead or that many groups or niches go underserved because of a lack of true “diversity” in media. Others argue that the market is hopelessly over-concentrated in the hands of a few evil media barons who are hell-bent on force-feeding us corporate propaganda. And still others say that the quality of news and entertainment in our society has deteriorated because of a combination of all of the above. It all sounds quite troubling, but is any of it true?

After taking an objective look at the true state of America’s media marketplace, we conclude that such pessimism is unwarranted. Indeed, a careful review of the facts reveals that—contrary to what those media critics suggest—we have more media choice, more media competition, and more media diversity than ever before. Indeed, to the extent there was ever a “golden age” of media in America, we are living in it today. The media sky has never been brighter and it is getting brighter with each passing year.
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Comments Posted in: Media Regulation