Dalzell on Broadcast v. New Metaphor

by Jonathan Wallace

Judge Dalzell--whose sympathy to the freedom of speech was apparent from the questions he asked during the hearing-- writes some really clear and stirring prose distinguishing the Supreme Court's indecency ruling in Pacifica (the seven dirty words case) from the CDA case.

One of the fundamental tenets of the pro-CDA forces--expressed on various lists by Matt Elkins--is that the Net can be regulated in the same way as broadcast media. Government regulation of broadcast originated sixty years ago with the doctrine that broadcast frequencies are "scarce"; therefore the government must determine who gets a licence; therefore, in determining who gets a license, the government may determine who is abusing the airwaves with "indecent" language. Since the Net involves no scarcity, pro-CDA forces have had to find an independent underpinning for government intervention. They found it in "pervasiveness", the doctrine that broadcast waves come into the house unbidden and may ambush children who turn the set on and are exposed unexpectedly to indecent content.

The Carlin case, involving the comedian's Seven Dirty Words routine, referred to "the uniquely pervasive presence" of broadcasting and never mentioned the scarcity doctrine. Thirteen years ago, communications scholar Ithiel de Sola Pool correctly observed that this statement, if it meant what it appeared to, would justify "quite radical censorship." Now along comes the wonderful and clearheaded Judge Dalzell and clears it up for us.

He points out that in a 1994 case, Turner Broadcasting v. FCC, the Supreme Court refused to extend Pacifica to cable TV because of "fundamental technological differences" between broadcast and cable. Dalzell says:

The legal significance to this case of Turner's refusal to apply the broadcast rules to cable television cannot be overstated. Turner's holding confirms beyond doubt that the holding in Pacifica arose out of the scarcity rationale unique to the underlying technology of broadcasting, and not out of the end product that the viewer watches. That is, cable television has no less of a 'uniquely pervasive presence' than broadcast television....Whether one receives a signal through an antenna or through a dedicated wire, the end result is just television in either case. In declining to extend broadcast's scarcity rationale for cable, the Supreme Court also implicitly limited Pacifica, the holding of which flows directly from that rationale. (pp. 188-189) Three cheers for Dalzell. During three decades, censorship advocates have used Pacifica to justify radical measures pertaining to various electronic media. Dalzell's interpretation stops them at the bridge. ACLU v. Reno will be the Supreme Court's opportunity to clarify the outer boundaries of broadcast regulation and to tell us whether "pervasiveness" really means anything; the Turner case suggests that the Court will not shirk its responsibility.

Jonathan Wallace

The Ethical Spectacle
https://www.spectacle.org
ACLU v. Reno plaintiff
https://www.spectacle.org/cda/cdamn.html
Co-author, Sex, Laws and Cyberspace (Henry Holt, 1996)
https://www.spectacle.org/freespch

Free speech absolutist--and proud to be