30 Pages Posted: 22 May 2012
Date Written: 2011
The technological context surrounding the Supreme Court’s landmark decision in FCC v. Pacifica Foundation allowed the Court to gloss over the tension between two rather disparate rationales. Those adopting a civil libertarian view of free speech could support the decision on the grounds that viewers’ and listeners’ inability to filter out unwanted speech exposed them to content that they did not wish to see or hear. At the same time, Pacifica also found support from those who more paternalistically regard indecency as low value (if not socially harmful) speech that is unworthy of full First Amendment protection. The arrival of filtering technologies has introduced a wedge between those who supported the constitutionality of indecency regulations out of a desire to enhance individual autonomy and those who wish to restrict speech in order to promote a particular vision of the public good. At the same time, commentators on the political left have begun to question whether continued support for the classic liberal vision of free speech may be interfering with the advancement of progressive values.
This Article offers a qualified defense of the libertarian vision of free speech. Deviating from the civil libertarian view would require a revolution in doctrine and would contradict the postulate of independent moral agency that lies at the heart of liberal theory. Although some suggested institutions for ascertaining the idealized preferences that individuals ought to have could justify allowing the government to override individuals’ actual preferences, such an approach is all-too reminiscent of the Rousseauian notion of being “forced to be free” and has never been accepted by the Supreme Court. Finally, claims that private censorship presents risks commensurate with public censorship fail to address the fact that liberal theory presupposes the existence of a private sphere into which the state cannot intrude, as well as the long tradition recognizing the special dangers associated with the coercive power of the state. Moreover, the rationales upon which the Supreme Court has relied to justify overriding individual preferences in broadcasting and cable have been undermined by technological change.
Keywords: Pacifica, indecency, free speech, V-chip, Fox Television, liberal theory, idealized preferences, private censorship, scarcity, Turner, bottleneck, gatekeeper
Suggested Citation: Suggested Citation
Yoo, Christopher S., Technologies of Control and the Future of the First Amendment (2011). William & Mary Law Review, Vol. 53, p. 747, 2011; U of Penn Law School, Public Law Research Paper No. 12-34. Available at SSRN: https://ssrn.com/abstract=2064016