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Samaha on FCC v. Pacifica

By Lawrence Solum

Adam Samaha (University of Chicago - Law School) has posted The Story of FCC v. Pacifica Foundation (And Its Second Life) (FIRST AMENDMENT STORIES, Richard Garnett, Andrew Koppelman, eds., Foundation Press, 2010) on SSRN. Here is the abstract:

This chapter provides a back story to FCC v. Pacifica Foundation ? the so-called seven dirty words case, which upheld the Commission?s authority to regulate broadcast indecency. The history of broadcast indecency regulation is briefly reviewed, along with the emergence of countercultural radio in the 1960s and 1970s. The chapter then turns to George Carlin and his personal transformation, Pacifica radio and its turbulent times, and the complaint of a Morality in Media board member that instigated FCC proceedings. The litigation history of the case is likewise investigated. This research provides insight into why the Department of Justice switched sides when the case reached the Supreme Court, and it identifies Justice Stevens as the likely swing voter. Apparently he was wrestling with issues of statutory interpretation. The chapter includes new interviews with several participants in the controversy, as well as some original archival research. The chapter closes with a few thoughts on the path of indecency regulation since the Pacifica case. It points up the relationship between constraint and creativity; and it suggests that technological change making the broadcast medium less important also makes broadcast regulation less problematic. The ?just change the channel? argument, so rhetorically effective against indecency regulation in the past, is now switching sides.

Highly recommended.

Full post as published by Legal Theory Blog on August 19, 2010 (boomark / email).