Regulating Protected Speech

Friday, April 16, 2004, at 12:08PM

By Eric Richardson

(This post is part of a series on FCC regulation of indecency. To see the whole series, click on the FCC Category.)

Just because speech is protected by the first ammendment doesn't mean that it is acceptable at all times and free from regulation. You can't yell fire in a crowded place, you can't talk about bombs at the airport, etc. We're familiar with these restrictions in day to day life.

Indecent speech is regulated far more heavily for broadcast than it is for other mediums. Again looking at the Pacifica ruling, the Court said that "of all forms of communication, it is broadcasting that has received the most limited First Amendment protection." Where certain indecent speech might be absolutely legal in other contexts, it can be regulated for broadcast. To justify this, the Court has used two doctrines: scarcity and unique pervasiveness. I'll address them both in a minute.

Regulation of broadcast speech can take two forms: content based (regulating on the basis of what's being said) and non-content based (requirements to carry something, not on the basis of what it is). Content based is pretty straight forward. That's the FCC saying you can't say certain words, or at certain times, etc. Non-content based is a little more esoteric, and usually comes up in the form of things like must-carry rules. Must-carry requires that a cable company transmit the signals of any broadcast stations in its area.

Non-content based regulations aren't subject to the same kinds of strict scrutiny that content based regulations are. Though those are currently a debated issue in regards to extending cable must-carry rules to satellite, I don't think they're that important and we're not going to get into them here.