35 Pages Posted: 11 Jan 2012 Last revised: 28 Mar 2012
Date Written: February 14, 2012
In the thirty-plus years since FCC v. Pacifica Foundation revolutionized content-based broadcast regulation, much has changed. Although broadcast television was recognized as a dangerously pervasive medium in 1978, it is no longer the dominant force that it once was, with the vast majority of Americans now paying for subscription television services like cable or satellite. And while the Pacifica Court strove to support parents in their struggle to protect their children from pervasive inappropriate content by upholding the FCC’s content regulation, technological developments like the V-Chip, cable boxes, DVRs, and satellite boxes have afforded modern parents various self-help alternatives.
Many critics have argued that changes like these in the convergent media environment have obviated any need for the Supreme Court to evaluate the constitutionality of broadcast speech regulations with special deference, or so-called “intermediate scrutiny.” They contend that broadcast restrictions should instead be evaluated like all other content-based media regulation, with “strict scrutiny.” Some have suggested that no content-based television regulation could pass constitutional muster under a strict scrutiny test because new self-help media filters like the V-Chip necessarily present a less restrictive means to control indecent or profane speech. These arguments have found welcome ears in some courts, most notably the Second Circuit. Upon hearing Fox v. FCC on remand from the Supreme Court, the court pulled no punches in forcefully arguing that changes in the technology landscape should unravel any special First Amendment status for broadcast speech restrictions.
Unfortunately, both law review articles and judicial opinions that have lobbied against content-based broadcasting regulation have generally neglected to offer specific empirical evidence to support their positions. These critics tend to focus on how new technology might be used in theory rather than how it is actually used in practice. This approach is problematic. If the Supreme Court is to uproot three decades of its broadcast speech precedent (as it will have the opportunity to do when it rehears Fox v. FCC this term), it should do so on the basis of specific empirical data that directly address the status of the bedrock governmental interest from Pacifica: parental control over their children’s exposure to pervasive content. Thus, it is critical to understand precisely how the changes in media consumption and technology have affected these parents and their perceptions of control. It is equally important to empirically distinguish between the efficiencies of the alternatives that the Court would consider under a strict scrutiny analysis: one regime based on media filters and one based on regulation. Without such empirical considerations, it is impossible to accurately determine which alternative is the less restrictive method of protecting children (or whether the Federal Communications Commission (FCC) has less restrictive ways of accomplishing its mandate).
This study is the first to use actual survey data to examine how technology has changed the perspectives of parents. With generous funding from the Media Management Center at Northwestern University, I conducted an original survey of 575 American parents to better understand their perspectives on the intersection between television regulation and media filter technology. Parental views are fundamental to the indecency inquiry because they are at the core of the First Amendment carve-out for the content-based regulation of television broadcasting. The survey results offer clear empirical support for the argument that the FCC’s content-based regulation of indecent and profane content should be deemed unconstitutional.
Broadcast television is no longer a uniquely pervasive threat to parental control over what their children watch on television. The survey data reveal that there is no statistically significant difference in perceptions of control between parents who consume only broadcast television in their homes and those who receive their television through some other means of distribution (such as cable or satellite). Moreover, there is not a statistically significant difference between those two groups of parents in their perceptions of how much exposure their children have to inappropriate content on television. In other words, the data show that parents do not perceive an underlying practical need for regulations of broadcast speech to be measured with any less scrutiny than regulations on other media. It is not a uniquely pervasive medium.
Second, parents overwhelmingly report that media filter technology like the V-chip is at least an equally effective substitute for government regulation of inappropriate content. This is a significant finding that could justify the eradication of the FCC’s authority to regulate television content at all. Although most parents would like to rely on a multifaceted defense comprised of both technology and regulation, that position stands at odds with the Supreme Court’s strict scrutiny jurisprudence. If media filters are just as effective as regulation at achieving the government’s interest of helping parents control what their children see, then the regulations should be deemed unconstitutional abridgements of the First Amendment.
Keywords: Indecency, Media Regulation, Media Filters, Strict Scrutiny, Intermediate Scrutiny, Broadcast, Television, Parents, Children, Kids, Obscenity, Profanity
Suggested Citation: Suggested Citation
Gamse, Nick, The Indecency of Indecency: How Technology Affects the Constitutionality of Content-Based Broadcast Regulation (February 14, 2012). Fordham Intellectual Property, Media & Entertainment Law Journal, Vol. 22, No. 3, 2012. Available at SSRN: https://ssrn.com/abstract=1982629 or http://dx.doi.org/10.2139/ssrn.1982629