Will Court create different standards for broadcast TV, radio?

Wednesday, January 11, 2012

Traditionally, broadcast television and radio have been lumped together for second-class status in First Amendment law as “broadcast media.” Because of this, the government has been able to regulate broadcasting more easily than print or online media.

In oral arguments yesterday in FCC v. Fox Television Stations over whether the FCC’s enforcement scheme regarding indecency violates the First Amendment, all three instances of alleged indecency occurred on television, not radio. Yet the Supreme Court’s seminal broadcast-indecency case, FCC v. Pacifica Foundation (1978), involved radio — stemming from a New York radio station’s airing of George Carlin’s “Filthy Words” monologue during daytime hours.

Lawyers for Fox and ABC argued in their briefs and before the Court that Pacifica should be overruled, in part because broadcast television is no longer uniquely pervasive and accessible in a media-saturated world where most children have access to cable television too.

Solicitor General Donald B. Verrilli, Jr. — the attorney arguing for the FCC — suggested that if technology had changed broadcast television, radio remained relatively constant. Even if the Court changed the game with regard to broadcast TV, he said, heightened restrictions should still apply for radio.

Verrilli noted that “a lot of the most vile and lewd material really is in radio” and “no showing has been made about radio” by the Fox and ABC side of the case.

Later, when attorney Carter G. Phillips got up to argue for Fox, Justice Samuel Alito asked him about a possible  difference for radio.

Alito: Well, you want us to overrule a decision of this Court, Pacifica?

Phillips: I’m not here —

Alito: To justify that? Well, could we hold that the policy is invalid as to — on First Amendment grounds as to TV but not as to radio?

Phillips: Absolutely, Your Honor, because there are fundamentally different media and there are different protections and the circumstances are different and the Court has recognized that media have to be evaluated individually.”

The Court has many options. It could:

  • Keep the FCC regulations in place.
  • Invalidate the FCC’s restrictions altogether by overruling Pacifica.
  • Rule for Fox and ABC but not overrule Pacifica, which would in effect leave radio regulation in force.
  • Specifically state that Pacifica doesn’t apply to broadcast TV but still applies to radio.

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