Download This PaperFrankly, My Dear, I Don’t Give a *Darn* — An Argument Against Censoring Broadcast Media
40 Pages Posted: 24 Mar 2020 Last revised: 29 Jan 2021
Date Written: 2017
Abstract
In FCC v. Pacifica Foundation, the Supreme Court allowed the FCC to fine TV and radio broadcasters for airing "indecent" programs. The Court allowed this sort of content-based censorship for two primary reasons: (1) the “uniquely pervasive” nature of these broadcasts allows them to seep into “the privacy of the home” without the consent of the viewer; and (2) these broadcasts are “uniquely accessible to children,” whose “vocabulary [could be enlarged] in an instant” by hearing indecent or profane language.
In 1978, when Pacifica was decided, the issue of whether the FCC's regulations passed constitutional muster was undoubtedly a close call. But it is no longer 1978. With the advent of modern technology, can the FCC really prevent children from being exposed to profanity by penalizing broadcasters? And are the FCC’s regulations necessary to protect society from unwanted speech entering our homes? In other words, does the Pacifica Court's rationale hold up in 2017?
This article argues that that modern technology, such as the V-chip, has eroded Pacifica’s doctrinal underpinnings to the point that the FCC’s indecent-speech regulations are now unconstitutional under the First Amendment. With the advent of parental controls and other self-censorship tools, it is easier than ever to ensure unwanted speech does not enter the home. And any child who has perused the Internet has undoubtedly come across something the FCC would find to be “indecent." Given these developments, the FCC’s regulations are no longer reasonably necessary to serve any governmental interests and are therefore unconstitutional under the First Amendment.
Keywords: broadcast media, FCC, Pacifica, First Amendment, free speech
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