Supreme Court's Rulings Threaten FREE SPEECH.

• Author: Wallace, Jonathan D.
• Position: Pervasiveness doctrine

Recent Supreme Court decisions support the proposition that Congress can regulate programming on cable television, potentially opening the door to censorship on the Internet.

In 1978, the Supreme Court introduced a new rationale for regulation of broadcast media--the pervasiveness doctrine. The Court upheld Federal Communications Commission (FCC) regulation of indecent radio broadcasts on the grounds that they threaten to enter homes when children might be listening. Five years later, communications scholar Ithiel de Sola Pool commented that authorities could use the pervasiveness doctrine to justify "quite radical censorship." His comments proved prescient. In 1996, Congress passed the Communications Decency Act to restrict indecent speech on the Internet. Moreover, the executive branch urged two Federal courts to uphold the constitutionality of the CDA. Both branches of government relied on the rationale that the Internet, like the radio, pervades households.

The logic of pervasiveness could apply as well to cable television, the Internet, and even the print media. If such logic applies to any medium, it could apply to all media. Thus, the pervasiveness doctrine threatens to curtail severely the First Amendment's protection of freedom of speech. The Supreme Court should dispel this specter of censorship by rejecting the doctrine as a dangerously broad and vague excuse for regulating speech.

At its root, the pervasiveness doctrine relies on a stunted view of individual responsibility and property rights. As consumers, we invite the broadcast media into our homes; they do not walk in of their own accord. The same holds true of books, newspapers, and computers with Internet connections. In each case, we have the right to choose the medium and the responsibility for controlling our children's access to it. The pervasiveness doctrine snatches from families the responsibility for making such choices and gives it to politicians and bureaucrats.

On Oct. 30, 1973, about 2 p.m., a Pacifica network radio station in New York broadcast a recording of comedian George Carlin joking about "the words you couldn't say on the public airwaves, the ones you definitely wouldn't say, ever." A few weeks later, the FCC received a letter from a man who complained that he had tuned into the station while driving with his son, and that both were exposed to Carlin's wordplay. In response, the FCC issued a declaratory order saying that, although it could impose formal sanctions, the agency merely would file the order for reference in case there were further complaints against the station.

In FCC v. Pacifica Foundation, Pacifica sued the FCC, alleging that the agency's letter and the regulations on indecent speech under which it was issued violated the First Amendment. The Supreme Court upheld the FCC action on the grounds that "the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder."

The Court's introduction of pervasiveness baffled many commentators, who questioned why the justices needlessly had invoked a new and unknown justification for the regulation of broadcasting. Since the Supreme Court first had upheld the Communications Act of 1934, FCC regulation of broadcast media always had been based on the doctrine of "spectrum scarcity." In fact, for almost 20 years after Pacifica, jurists and commentators understood that the Court had not intended pervasiveness to justify regulation of speech in media that were not scarce. Accordingly, the fragmented Pacifica five-to-four decision--involving several separate opinions and barely carrying a majority of the Court--applied only to radio and television, the two scarce media.

Note that the FCC order had relied on four arguments for disapproving the Carlin broadcast: the FCC stated that "children have access to radios and in many cases are unsupervised by parents"; that radio receivers are in the home, "a place where people's privacy interest is entitled to extra deference"...