Filing a “friend of the court” brief on behalf of the Fox and ABC television networks, a coalition consisting of various public policy groups called on the U.S. Supreme Court to overturn its landmark ruling in FCC v. Pacifica, arguing that technological innovation and the emergence of alternative forms of media have rendered obsolete the high court’s original justification for upholding limits on broadcast indecency. Handed down in 1978, Pacifica addressed the airing of comedian George Carlin’s “seven dirty words” monologue and upheld the constitutional right of the FCC to penalize broadcasts of indecent content. The Supreme Court is again considering the constitutionality of the FCC’s indecency rules in light of the agency’s findings of liability with respect to the airing of unscripted “fleeting expletives” during live telecasts on the Fox and ABC networks. Noting that the 1978 court described over-the-air broadcast television—the sole source of video programming for most families at that time—as “uniquely pervasive” and “uniquely accessible to children,” the coalition, consisting of the Electronic Frontier Foundation, the Cato Institute, Public Knowledge, TechFreedom, and the Center for Democracy and Technology, advised the court that Pacifica “is based on an archaic and unrealistic conception of broadcast television” that no longer exists. Because traditional over-the-air broadcasts have been “largely displaced” by alternative video delivery methods such as cable and satellite TV, online video streaming, and online DVD rentals, the groups asserted that over-the-air broadcasts have become “rare” rather than “pervasive.” As such, the coalition proclaimed: “whatever legal logic and common sense Pacifica might once have had was built on factual foundations that have long since collapsed.”
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Public policy groups urge Supreme Court to overturn Pacifica decision
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