Thomas Krattenmaker: FCC v. Fox: Broadcast Indecency Law as the New Paradigm for Regulatory Failure

Thomas G. Krattenmaker 
Former Director of Research, FCC
Former Professor of Law, Georgetown University Law Center
Former Dean and Professor, William and Mary Law School

Wednesday, October 17, 2012

The Information Economy Project at George Mason University
proudly presents The Tullock Lecture on Big Ideas About Information

4:00 – 5:30 pm @ Hazel Hall Room 215
GMU School of Law, 3301 Fairfax Drive, Arlington, Va.
(Orange Line: Virginia Square-GMU Metro)
Reception to Follow in the Levy Atrium, 5:30-6:30 pm

In its June 21, 2012 opinion in FCC v. Fox, the Supreme Court vacated reasoned judgments of the Second Circuit, without one sentence questioning the validity or wisdom of those judgments. Although the Court absolved Fox on a technicality, its opinion appears to reflect a post-modern approach to First Amendment jurisprudence concerning broadcast speech, whereby neither precedent nor principle control outcomes. This indulgent approach to a government censorship bureau appears to acquiesce in an unconfined, unprincipled, and unwarranted seizure of regulatory power by the FCC. The Fox opinion thus compounds and enables a grave regulatory failure; whether any sound broadcast indecency policy or legal regime is feasible is perhaps debatable, but the Federal Communications Commission is wholly incapable of administering such a regime.  The lecture was preceded by a short introduction by Fernando Laguarda.

From the Lecture:

Four Big Ideas

1. It is and should be the first principle of government regulation of media that, whether or not a medium employes the electromagnetic spectrum, editorial control over what is said and how it is said should be lodged in private, not governmental, institutions.

See Krattenmaker & Powe, Converging First Amendment Principles for Converging Communications Media, 104 Yale L.J. 1719 (1995); Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974); Krattenmaker & Powe, The Fairness Doctrine Today: A Constitutional Curiosity and an Impossible Dream, 1985 Duke L.J. 151 (1985).

2. If the United States should have a national indecency law, and a National Indecency Commission, there is no public or private body in this country more ill-suited to take on such a role than the FCC.

See, e.g., Fox Television Stations v. FCC 613 F.3d 317 (2d Cir. 2010). See also Krattenmaker & Powe, Regulating Broadcast Programming, passim (MIT Press 1994); Krattenmaker, Telecommunications Law and Policy (2d Ed. 1998).

3. We do not need a national indecency law, whether for the broadcast medium or for any other mode of expression.

See Cohen v. California, 403 U.S. 15 (1971); Krattenmaker, Looking Back at Cohen v. California: A 40-Year Retrospective from Inside the Court, 20 W&M Bill of Rights J. 651 (2012).

4. If the Supreme Court of the United States is going to declare itself to be the sole arbiter of what our First Amendment means to our modern democratic society, then it needs to act like a court and earn the right to be called “supreme.”

See Bloch, Jackson, & Krattenmaker, Inside the Supreme Court: The Institution and its Procedures (2d ed.) (Thomson-West 2008).

The Information Economy Project at George Mason University School of Law is proud to host The Tullock Lecture Big Ideas About Information. This lecture series is made possible through the generosity of Gordon Tullock, Professor of Law and Economics, emeritus. Each semester, guest scholars and experts visit George Mason University School of Law. The Information Economy Project seeks to provide a venue for unique intersections between the law and telecommunications with a focus on innovative scholarship. Many of our speakers have published papers following their lectures. 


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This entry is part 18 of 20 in the series Tullock Lecture Big Ideas About Information Series