Panel explores whether Pacifica is outdated

Friday, June 27, 2008

  • FCC's Tate: need to balance freedom, protection of kids

    WASHINGTON — A panel of First Amendment lawyers and scholars yesterday explored the legacy of FCC v. Pacifica, the 1978 Supreme Court case that banned the late George Carlin’s “Seven Dirty Words” from broadcast airways during certain hours. The panel was part of a First Amendment Center conference, “Indecency & Violence in the Media” at the Newseum.

    “The FCC has a dual obligation,” said Robert Corn-Revere, a noted First Amendment lawyer and partner at the Washington, D.C., office of Davis Wright Tremaine, who moderated the panel discussion. He stressed that although the FCC may fine broadcasters of indecent language, statutory law (47 USC §326) bars the agency from censoring or “interfer[ing] with the right of free speech” on television or radio.

    It has proven to be a tricky balance to strike. In a PowerPoint presentation, Corn-Revere discussed the legal differences between obscenity and indecency and pointed out that, ironically, First Amendment freedoms enjoy greater protection under rules developed for the former than for the latter. He also stressed that in a separate opinion in Pacifica, Justice Lewis Powell counseled the FCC to “proceed cautiously” when attempting to regulate indecent expression.

    From left, Glen O. Robinson, Kenneth Robinson, Jane Roth, Robert Corn-Revere

    The Pacifica case turns 30 this year and much of the panel discussion focused on whether or not the ruling was outdated.

    Glen O. Robinson, a law professor at the University of Virginia and former FCC commissioner, noted that this type of regulation began in the 1970s in response to “topless radio,” the precursor to today’s shock jocks such as Howard Stern. “We were trying to put [this content] into a brown paper bag,” Robinson said, by limiting such programming to later hours when children would not likely be listening or watching. The FCC moved toward a “generic standard” for deciding what was indecent in the late ‘80s.

    Because these “rules were developed in a world that had three networks,” they now might seem “arbitrary and capricious,” said Kenneth G. Robinson, a communications attorney and editor of Telecommunications Policy Review, a weekly publication. He pointed out that a ruling such as Pacifica might seem anachronistic today at a time when Internet content is hardly regulated at all. Yet some worry that the reasoning behind Pacifica might be expanded, in particular to regulate violence on television.

    The problem of adjudicating indecency cases was also discussed. Judge Jane R. Roth, a senior federal judge on the 3rd U.S. Circuit Court of Appeals, stressed the difficulty of proving harm to the community of a kind that the law could redress in indecency cases. How is such harm to be characterized? How is it to be measured?

    “We’re not big brother,” Roth said of the judiciary. “There are words today that weren’t offensive [when Pacifica was decided] and vice versa.”

    The discussion wrapped up a morning devoted to exploring Pacifica and media regulation, including presentations by FCC Commissioner Deborah Taylor Tate, former Chairman and Commissioner Richard E. Wiley, and Professor Lili Levi of the University of Miami School of Law.

    “The new media explosion of communicative devices, ranging from cell phones with Internet access to e-books, makes the issue of government regulation of content more important than ever before in our history,” said Ronald Collins, a scholar at the First Amendment Center and the conference’s organizer. “These issues will continue to be important for years to come.”

    Gene Policinski, vice president/executive director of the First Amendment Center, noted in closing yesterday's session that the panel was the first in a planned series of such discussions throughout 2008. He said future programs would aim to include presentations by content providers — networks, production companies and such — and discussions involving citizen or advocacy groups with varying views about FCC or other government regulation of mass media content.

    Policinski also endorsed Tate’s earlier suggestion of convening again in a year on the topic of FCC regulation of indecency and violence.

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