The United States Supreme Court, in FCC v. Pacifica Foundation, had a magnificent opportunity to either begin the process of defining first amendment limitations on the scope of the authority of the FCC to regulate the content of broadcast expression, explicate a rational ground for the differential status of broadcasting, or perhaps both. The purpose of this article is not to debate the wisdom of the use of sensitive language on the electronic media or elsewhere. Nor is it our purpose to debate the substantive question of whether the Court reached the proper result in Pacifica, although we will necessarily have much to say by implication on this issue. The purpose of this article is rather to assess the impact of Pacifica on the two traditions of freedom of expression which continue to coexist uneasily in our nation. Our concern is not primarily the narrow holding of the Supreme Court, but rather the fact that, in reaching its conclusion, the Court failed to delineate any limitations whatsoever on the power of the FCC to control the content of broadcast expression. After Pacifica, this country remains without a judicial pronouncement from its highest court of anything the Federal Communications Commission cannot do. This article will first discuss the nature and extent of FCC regulation of broadcast expression which remains intact following Pacifica. Thereafter it will analyze the issues raised by the mode of statutory construction utilized by the majority in Pacifica. Finally, the first amendment doctrines which have been affected by the rationales offered by the prevailing opinions will be critically examined.
Stephen W. Gard and Jeffrey Endress,
The Impact of Pacifica Foundation on Two Traditions of Freedom of Expression,
27 Clev. St. L. Rev.
available at http://engagedscholarship.csuohio.edu/clevstlrev/vol27/iss4/13