The Second Circuit lays down the gauntlet

The First Amendment was written in the 18th Century, when printing presses and pamphlets were all we had to communicate ideas. By the 1970s, when the Supreme Court took up a free speech challenge to the FCC's indecency rules, it held in the George Carlin case that the government had more leeway to regulate the content of offensive speech when it's broadcast on radio or television. The Second Circuit is now suggesting that the Carlin case, FCC v. Pacifica Foundation, 438 U.S. 726 (1978) is outdated.

The case is Fox Television v. FCC, decided on July 13. This case holds that the FCC's indecency rules violate the First Amendment because that are too vague and therefore chill free speech. A summary of that ruling is here. While the Second Circuit's holding on the constitutionality of the FCC's indecency standards is important, the Court provides in dicta an interesting aside about the continued plausibility of the Pacifica ruling.

Judge Pooler notes that, while "indecent speech is fully protected by the First Amendment," the Supreme Court held in 1969 that "broadcast radio and television ... have always occupied a unique position when it comes to First Amendment protection." This unique position allows the government some leeway to regulate indecent speech broadcast on radio and TV because of "the twin pillars of pervasiveness and accessibility to children."

It appears that the television networks in this case asked the Court of Appeals to revise the legal standards governing the regulation of indecent speech on radio and TV. The Court of Appeals (Pooler, Hall and Leval) doesn't take the bait, but not before it outlines why the networks may have a point. Judge Pooler writes:

We face a media landscape that would have been almost unrecognizable in 1978. Cable television was still in its infancy. The Internet was a project run out of the Department of Defense with several hundred users. Not only did YouTube, Facebook, and Twitter not exist, but their founders were either still in diapers or not yet conceived. In this environment, broadcast television undoubtedly possessed a “uniquely pervasive presence in the lives of all Americans.” Pacifica, 438 U.S. at 748. The same cannot be said today. The past thirty years has seen an explosion of media sources, and broadcast television has become only one voice in the chorus. Cable television is almost as pervasive as broadcast – almost 87 percent of households subscribe to a cable or satellite service – and most viewers can alternate between broadcast and non-broadcast channels with a click of their remote control. The internet, too, has become omnipresent, offering access to everything from viral videos to feature films and, yes, even broadcast television programs. As the FCC itself acknowledges, “[c]hildren today live in a media environment that is dramatically different from the one in which their parents and grandparents grew up decades ago.”

Moreover, technological changes have given parents the ability to decide which programs they will permit their children to watch. Every television, 13 inches or larger, sold in the United States since January 2000 contains a V-chip, which allows parents to block programs based on a standardized rating system. Moreover, since June 11, 2009, when the United States made the transition to digital television, anyone using a digital converter box also has access to a V-chip. In short, there now exists a way to block programs that contain indecent speech in a way that was not possible in 1978. In fact, the existence of technology that allowed for household-by-household blocking of “unwanted” cable channels was one of the principle distinctions between cable television and broadcast media drawn by the Supreme Court in [U.S. v. Playboy Entertainment Group, 529 U.S. 803 (2000).

In other words, the rationale behind giving the government more authority to regulate TV and radio speech (as opposed to speech in newspapers and books) no longer holds true. If the Supreme Court thought our media was pervasive in 1978, with only a few TV and radio stations to choose from, imagine what that Court would think of the Internet and zillions of cable channels that exponentially increases media choices. In addition, new technologies allow parents to shield children from the sort of filthy content that jumped out at you from the radio unanticipated in the 1970s. After giving this issue much thought, the Court of Appeals says:

We can think of no reason why this rationale for applying strict scrutiny in the case of cable television would not apply with equal force to broadcast television in light of the V-chip technology that is now available.

So why doesn't the Court of Appeals just articulate a new legal standard that is more consistent with modern times? It can't. Well-settled law holds that the Court of Appeals cannot overrule the Supreme Court. In this case, the Second Circuit throws down the gauntlet. The old rules reflect yesterday's values. We are forging ahead!