Yesterday, EFF—along with the Cato Institute, the Center for Democracy and Technology, Public Knowledge, and TechFreedom—submitted an amicus brief to the Supreme Court in FCC v. Fox, which asks the Court to declare unconstitutional the FCC’s heavy-handed and outdated indecency policy for broadcast TV. The policy stems from the 1978 Supreme Court decision in FCC v. Pacifica, also known as the “Seven Dirty Words” case. The Court held that broadcast media deserved lesser First Amendment protection than other mediums because it had a “uniquely pervasive presence in the lives of all Americans” and was “uniquely accessible to children.”
But as the Second Circuit Court of Appeals noted, “we face a media landscape that would have been almost unrecognizable in 1978.” Back then, the public could consume media in two ways: through broadcast television and radio or newspapers. Now, over three-quarters of all Americans use the Internet, and 87% of households now subscribe to cable or satellite.
Nor is broadcast media “uniquely accessible to children” either. Upwards of 87% of U.S. children ages 12 to 17 use the Internet. And as our brief notes, “when children watch broadcast content, they do so increasingly using non-broadcast platforms.”
This is not an issue that draws down political lines—both right and left can agree: the First Amendment belongs to all mediums. In 2011, there is simply no reason for the court not to give broadcast television the full First Amendment protection provided to the Internet.