Will Court create different standards for broadcast TV, radio?
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.
Tags: ABC, broadcast indecency, broadcast regulation, broadcasting, Fox, indecency, profanity, radio, television
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Ken Paulson is president and chief executive officer/First Amendment Center. Previously, Paulson served as editor and senior vice president/news of USA Today and USATODAY.com.
Gene Policinski, senior vice president and executive director of the First Amendment Center, is a veteran journalist whose career has included work in newspapers, radio, television and online.
John Seigenthaler founded the First Amendment Center in 1991 with the mission of creating national discussion, dialogue and debate about First Amendment rights and values.
Dr. Charles C. Haynes is director of the Religious Freedom Education Project at the Newseum. He writes and speaks extensively on religious liberty and religion in American public life.
David L. Hudson Jr. is a scholar at the First Amendment Center. Hudson writes for firstamendmentcenter.org and for other publications devoted to First Amendment issues.
Tiffany Villager is director/First Amendment studies at the First Amendment Center, which she joined in 1993. She also served as the center’s research manager and research coordinator, and developed the center’s library.
[...] Analysis by David L. Hudson Jr. Incidents of alleged indecency in FCC v. Fox all occurred on TV; case cited in support of broadcast-indecency regulation involved radio. [...]
i love all this information. it really interest me. i love my country!
GOD BLESS AMERICA!
Not going to waste my time and will just leave my link to the case docket that is also pending at the Eighth Circuit demanding the FCC be ordered to obey the statute creating the FCC and begin regulating ALL wire and radio communications whether called broadcast television, subscription cable TV, or the Internet. The Supreme Court ruling will not invalidate the Communications Act of 1934 but then again if it does congress will overrule them. The judicial branch is not utterly supreme.
Copy[rite] and failure to regulate wire communications will combine to redefine the new and mysterious unique medium that is simply internet wire communications.
http://open.salon.com/blog/curtisneeley/2012/02/04/the_copyrite_act_ruled_as_superceded_by_berne_by_sc
http://open.salon.com/blog/curtisneeley/2012/02/01/ken_paulson_esq_is_the_president_of_the_first_amendment_cent
Could Ken Paulson Esq be anymore clueless about the first amendment “Freedom of speech”? Ken Paulson Esq and the United States will very soon be instructed on wire communication regulations and the Berne Compact.