Blog: 2nd Circuit questions ‘twin pillars’ of Pacifica

Wednesday, July 14, 2010

The 2nd U.S. Circuit Court of Appeals ruled yesterday in Fox Television Stations v. FCC that the FCC’s indecency policy was too vague and caused many broadcasters to steer clear of controversial material to avoid massive fines. But the 2nd Circuit did something else in its opinion — it questioned the continued viability of the U.S. Supreme Court precedent that allowed the FCC to fine broadcasters for indecency in the first place.

In its 1978 decision Pacifica Foundation v. FCC, the high court ruled that the government was entitled to greater leeway in regulating the broadcast medium because of two factors: (1) the uniquely pervasive presence of the broadcast medium in individuals’ lives, and (2) its unique accessibility to children. The 2nd Circuit referred to these as the “twin pillars” of Pacifica.

Technology, the 2nd Circuit observed, has radically changed since 1978, including the growth of cable television and the advent and expansion of the Internet as a popular medium. “The past thirty years has seen an explosion of media sources, and broadcast television has become only one voice it the chorus,” the appeals court wrote. “Cable television is almost as pervasive as broadcast.”

Internet access has rapidly become pervasive as well. Children today are more versed in online media than many of their parents. All this pervasiveness and accessibility makes one wonder whether the second-class treatment of the broadcast medium makes sense in this “brave new world.”

The 2nd Circuit suggested that it didn’t make sense, but respecting its role as an intermediate appellate court, it recognized that it was up to the Supreme Court to overrule one of its prior decisions. “The Supreme Court may decide in due course to overrule Pacifica and subject speech restrictions in the broadcast context to strict scrutiny,” the 2nd Circuit said.

The Supreme Court likely will see the case of Fox Television Stations v. FCC again and, when it does, it may have to confront the question directly — does Pacifica still make sense in a vastly different media world?

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