Regulating Protected Speech

April 16, 2004 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.

Is this Protected Speech?

April 16, 2004 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.)

The first thing you have to look at in this argument is whether the speech that the FCC is regulating is protected by the first ammendment. Everything hinges on that. If it's not protected Congress and the FCC can do whatever they want. If it is, though, then a variety of other questions have to be asked.

The type of speech we're talking about here is indecency, not obscenity. PBS has a really good resource on the first ammendment. In it you'll see the criteria for obscenity set out in Miller vs. California (413 U.S. 15 (1973)). That's the important criteria here. Obscene material does not have first ammendment protections, and can be freely legislated (well, to some extent anyway). In any case, obscenity is illegal for broadcast at all times.

Indecency, on the other hand, is protected speech. The Court, in the decision for FCC vs. Pacifica (483 U.S. 726 (1978)), said "But the fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas." Though indecency and obscenity are often taken as the same, legally they are very different.

starting to look at my FCC paper

April 16, 2004 by Eric Richardson

I've talked a couple times now about the FCC, Congress, and attempts to extend broadcast regulations to cable, satellite, and possibly the Internet. I'm actually looking at all this for a paper I have to do for a writing class. The paper is supposed to be a position paper. Mine is going to be a letter to Congress telling them why they shouldn't (and can't, but Congress doesn't like to hear that) extend the rules to new mediums. Over the last few days I've been putting sources together and such, so now it's time to actually sit down and start outlining my argument.

Of course, once I started that it quickly got too big for one post. I'm going to post this in sections, and then once it's all done I'll probably pull it together to archive it somewhere.

First, just a comment -- Were this a real letter to Congress I don't know if a strategy of citing Supreme Court cases would be the way to go. Click for more about that... — Continue Reading...

hooray for tax day

April 15, 2004 by Eric Richardson

So I finally mailed my taxes today. I did them in February, but I owed Federal and Michigan, so I waited to actually send them. California owes me $1.41, but that's not much of a consolation. I'll be glad when I'm just a resident of somewhere and don't have to fill out non-resident forms for two states. That's a hassle.

I started writing a post today talking about the paper I'm writing on why indecency regulations shouldn't/can't be extended to satellite and cable, but then it turned into something that's approaching paper length itself and isn't done yet. That'll probably show up here tomorrow.

still with the birds

April 14, 2004 by Eric Richardson

So I'll never understand the LAPD chopper. This morning it woke me up. I tried to just ignore it, to fall back asleep, but it kept circling. It was here for at least twenty minutes, every thirty seconds or so coming into view overhead on the northern edge of its rotation. It was flying pretty low, too, so it was loud. Then, all of a sudden, it started using the loudspeaker. I couldn't quite catch what it said as I moved out to the balcony to get a better vantage point. Immediately afterward it veers off and makes a bee-line for downtown. No clue what it was doing here.

In other news, I think I discovered today that pidgeons are trying to make a nest on our balcony. They're also undeterred by the openings and closings of the door.