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CONTACT: Amy Smorodin
April 28, 2009
(202) 289-8928
Supreme Court Ruling a Blow to First Amendment
Thierer Says FCC v. Fox Ruling an Exercise in Futility

WASHINGTON D.C. - The Supreme Court's ruling today in FCC v. Fox upheld the Federal Communications Commission's recent expansion of content regulation on broadcast television, specifically the agency's unprecedented regulation of "fleeting expletives." PFF Senior Fellow Adam Thierer had these comments regarding the Court's decision:

While the Court decided this case on purely procedural grounds, its failure to address the constitutional issues at stake will leave the First Amendment freedoms of both media creators and consumers in this country uncertain until another case winds its way up to the court, which could take years.  Practically speaking, as Justice Thomas noted, what's the point of continuing to apply a censorship regime to one of the oldest mediums—broadcast TV and radio—when kids are flocking to unregulated mediums in large numbers?  At this point, we're doing little more than protecting adults from themselves and destroying over-the-air broadcasting in the process.

Until the Court clearly addresses the First Amendment protection of broadcasting in light of the Digital Revolution, we'll just have to speculate as to how to reconcile the broadcast law of bygone era with the Court's recent Internet jurisprudence—which has strongly supported the First Amendment. Although new media technologies and platforms are not covered currently by FCC content controls, the specter of regulation now haunts all media as platforms continue to converge and broadcast content gets repurposed on other platforms. 

Finally, what makes the Court's ruling even less sensible is that all parents have an extensive array of tools and strategies at their disposal to control media in their homes and in their lives of the children. That is especially the case for broadcast television programming, which is easier to control than ever before. The Court has held that user empowerment and private blocking solutions should shield the Internet from content regulation.  Why shouldn't the same principle apply to broadcasting?

Thierer is available for further comment.  Please contact Amy Smorodin at

Thierer, who submitted an amicus brief to the court for this case along with scholars at the Center for Democracy & Technology, is also the author of the PFF special report, "Parental Controls and Online Protection: A Survey of Tools and Methods," which is entering its fourth edition. Thierer has been awarded the Family Online Safety Institute's "Award for Outstanding Achievement" and served on the Harvard Law School's Internet Safety Technical Task Force. He was recently appointed to the National Telecommunications and Information Administration's (NTIA) Online Safety and Technology Working Group.

The Progress & Freedom Foundation is a market-oriented think tank that studies the digital revolution and its implications for public policy. It is a 501(c)(3) research & educational organization.



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