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Unhappy Birthday Pacifica

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This week marks the 30th anniversary of the day the U.S. Supreme Court built its indecency house upon the sand. That day, in FCC v. Pacifica Foundation, the court's fractured 5-4 decision ruled that the FCC was justified in its role as arbiter of "indecency " when it came to deciding what was broadcast on public airwaves during the daytime and early evening hours.

The late George Carlin's famous "Seven Dirty Words" monologue was the fuel for Pacifica. Today, the media landscape barely resembles that of the late '70s, but the so-called "pervasiveness" concept arising from Pacifica -- the idea that broadcasting is an unstoppable "intruder" in the home -- lives on.

The shaky legal tenets underlying Pacifica are entombed in a media world that was devoid of the Internet, instant messaging, YouTube and digital downloads. That world has been far outstripped by the past decade of technological innovation that gives parents far more control over media and makes the unstoppable "intruder" a relic that lives on only in legal doctrine.

Adam Thierer of the Progress & Freedom Foundation and John Morris from the Center for Democracy & Technology write in an article outlining the crumbling state of the Pacifica doctrine:

Pacifica's pervasiveness rationale fails today for another reason: New content screening and tailoring technologies have empowered parents to better dictate what their families see and hear. The Pacifica opinion argued that broadcast signals represent an "intruder" in the home because, "[P]rior warnings cannot completely protect the listener or viewer from unexpected program content."

The viewing or listening experience used to be a passive affair and -- with the exception of the off button -- consumers had very few "parental controls" at their disposal. Today, by contrast, parents have the tools to control what their children watch (even if the children "tune in and out" at will), and parents have abundant "prior warnings" about program content thanks to the existence of industry rating and labeling systems, independent review sites, electronic program guides, and so on.

Despite the growing irrelevance of Pacifica, the FCC refuses to adapt and in fact has become more aggressive in its enforcement of the indecency standard to the point of absurdity. The Commission is now going after so-called "fleeting expletives," those spontaneous, slip-of-the-tongue four-letter outbursts that happen during live broadcasts.

It's "unhappy birthday," Pacifica; fortunately, as technologies converge Pacifica's rationale will continue to unravel, to be replaced by an increasing storehouse of parental empowerment tools and perhaps a First Amendment jurisprudence worthy of the 21st Century.