Is the era of broadcast indecency over?

St. Petersburg Times reporter Eric Deggans told my UNO Media Regulation and Freedom class that interest is waning in shock radio.  At the same time, he says two long wars and a deepening recession made the shock jocks and broadcast profanity less of an important issue for the nation.

At its core, Federal Communication Commission (FCC) regulation of broadcast indecency, despite existing laws, suffers from a weakening distinction between broadcasting and other media.  While the FCC once could argue that "spectrum scarcity" justified the separate licensing and treatment of broadcasters as, in effect, First Amendment "second-class citizens" (the Radio-Television News Directors Association -- RTNDA thought so), that argument is crumbling under the weight of the Internet. FCC policy was designed to assist parents in protecting children during times of day when kids were likely to be in the audience, but those same kids today are on YouTube, Hulu and other rich media sites. The mobile media revolution makes content regulation, even if supposedly "content neutral," just plain silly.  As "fleeting expletives" cases work through the courts as a reversal of earlier FCC policies, Justice Clarence Thomas has questioned the validity of the uniqueness of the broadcast context.  So, we're likely to see time finally catch up with the always suspect Pacifica (1978) 5-4 split decision that made George Carlin's seven words you can't say, the law of the land for now more than 30 years. 

Dr. Jeremy Harris Lipschultz is author of Broadcast and Internet Indecency: Defining Free Speech (2008).

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