UCLA Entertainment Law Review

The notion that the Federal Communications Commission can restrict speech on broadcast radio and broadcast television more strictly than on other media, such as the Internet, is so familiar today that its constitutionality is often taken for granted.

In a landmark 1978 decision, Federal Communications Commission v. Pacifica Foundation, the Supreme Court of the United States stated that broadcast media receive less First Amendment protection than other media. The Supreme Court has given two rationales for its distinction between media (referred to in this article as the “media distinction doctrine”). First, broadcast radio and television are unique because the frequencies that they use could become flooded if not regulated, and thus nobody would be able to transmit content over broadcast radio and television without the government’s intervention. Second, broadcast radio and television are uniquely pervasive into the home, and thereby risk transmitting unwanted vulgarities to listeners and their children.

In this article, I argue that, given the technological development since Pacifica was decided, it is no longer sound to afford less First Amendment protection to broadcast media. After exploring the effects of technological development, I argue that neither of the above rationales remains sound. I also argue that other factors, such as consumer demand, would prevent broadcast media from transmitting offensive content even without the media distinction doctrine in place.