Academic journal article William and Mary Law Review

Technologies of Control and the Future of the First Amendment

Academic journal article William and Mary Law Review

Technologies of Control and the Future of the First Amendment

Article excerpt

TABLE OF CONTENTS

INTRODUCTION
I. THE CLASSICAL LIBERAL VISION OF FREE SPEECH
II. THE CRITIQUE OF PREFERENCES
    A. Idealized Preferences
    B. Supreme Court Doctrine
III. THE THREAT OF "PRIVATE CENSORSHIP" AND THE
   CRITIQUE OF THE STATE ACTION DOCTRINE
   A. Exception: Scarcity in Broadcasting
   B. Exception: Broadcasting as Intruder
CONCLUSION

INTRODUCTION

The Supreme Court's landmark decision in FCC v. Pacifica Foundation has long served as the jurisprudential basis for holding that restrictions on broadcast indecency do not violate the First Amendment. (1) The technological context in which Pacifica arose allowed the Court to gloss over the tension between two rather disparate rationales. Those who take a civil libertarian view of free speech could support the decision on the grounds that viewers' and listeners' inability to filter out unwanted speech exposed them to content that they did not wish to see or hear. (2) At the same time, Pacifica also found support from those who more paternalistically regard indecency as low value (if not socially harmful) speech that is unworthy of full First Amendment protection. (3) The lack of any effective means through which audiences could exercise control over the content to which they were exposed obviated the need for courts and commentators to resolve the tension between these two disparate perspectives.

More recently, technological developments have given audiences greater control over the content that they see and hear. Innovations such as the V-chip allow parents to exercise effective control over indecent speech transmitted over the airwaves. (4) Filtering technologies, deployed at the edge and in the core of the network, are enhancing end users' ability to keep out threats and unwanted content on the Internet. (5) The fact that audiences are now in a better position to exercise control over the content to which they are exposed has introduced a wedge between those who supported the constitutionality of indecency regulations out of a desire to enhance individual autonomy and more conservative voices who wish to restrict speech in the name of promoting the public good. At the same time, commentators on the political left have begun to question whether continued support for the classic liberal vision of free speech may be interfering with the advancement of progressive values. (6)

The return of FCC v. Fox Television Stations, Inc. to the Supreme Court of the United States for a second time may provide the opportunity to resolve this long-standing controversy. When the case first appeared before the Court, the Justices upheld the Federal Communications Commission's (FCC) decision to abandon its previous policy of enforcing broadcast indecency restrictions only against deliberate and repetitive uses of profanity purely as a matter of administrative law and remanded the case to the Second Circuit so that it could address the underlying constitutional issues. (7) Now that the Supreme Court has granted certiorari in the case for a second time, the Court will finally be in a position to address the underlying First Amendment issues. (8)

This Article offers a qualified defense of the libertarian vision of free speech associated with classical liberal theory. Not only would deviating from the traditional view require a revolution in doctrine; it would also bring the First Amendment into conflict with fundamental tenets of liberal and democratic theory to a greater extent than is generally recognized.

I. THE CLASSICAL LIBERAL VISION OF FREE SPEECH

The traditional conception of free speech embodied in the First Amendment doctrine articulated by the Supreme Court is best understood as being founded in classical liberal theory. At the risk of oversimplifying, classical liberal theory posits that individuals are independent moral agents capable of making up their own minds. (9) In terms of free speech, this commitment to independent moral agency entails that the state must respect individuals' decisions about what to say (10) as well as their choices about the speech to which they wish to be exposed. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.