American Constitutionalism in Historical Perspective (packet)

New Media:

1. 
   FCC v. Pacifica Foundation, 1978: FCC issued warning to station that had played George Carlin’s profanity laced routine during the middle of the day: held to be a reasonable regulation. Media is intrusive, c/n stop it from coming in so legitimate state interest in protecting parent’s rts to regulate the moral life of their children. Not prohibiting the speech entirely, just regulating when it can be played. Compares this to zoning cases.
   
   1. 
      Brennan/Marshall dissent: Ppl take affirmative action to turn the radio on, it d/n just come into their homes. Objects to making the measure of the most important public discourse the level of what is offensive to a child. Paternalistic, taking responsibility away from parents. Allowing private sensibilities to determine what will be allowed in public domain.
      
   2. 
      Powell’s concurrence: this is just channeling time, place and manner. Disagrees completely w/ Steven’s approach b/c it compromises autonomy view: ct isn’t free to decide on basis of content which speech protected by 1^st A is “ most valuable and deserving of the most protection” (Whitney)
      
2. 
   Rowan v. US Post Office, Sable v. FCC, ConEd v. Public Service Commission: narrows Pacifica by req the complaining person to place a stop order, rather than allowing the govt’s judgment to intervene.
   
   1. 
      Rowan: statute is constitutional- every right to say no to sales people
      
   2. 
      Sable: (dial a porn case) strikes down statute but not under Pacifica b/c total ban.
      
   3. 
      Con Ed: Pacifica d/n apply: inserts in electric bills can be discarded. p.1144
      
3. 
   Cable: Denver Area v. FCC, 1996: (p.1146) cable company objected to regulation of porn broadcasts. Argued that d/n have same scarcity problem as with radio and network TV, so state Js should have less influence. Court found that cable was similar to radio, porn should be limited to select times. Found that there were other alts for those desiring this material so not a prohibition.
   
   1. 
      10 A (prohibit offensive programming) constitutional by SC, holds unconstitutional 10B (blocking req) and 10C (prohibit obscene material on public access channels) 10A is permissive and not mandatory, the other’s are more coercive.
      
   2. 
      Breyer is the conclusive judge.(swing justice) Very influenced by Pacifica, He looks at the privacy interest of cable TV in your home-should be able to control what you want to watch; easy to get access to erotic material other ways (video, internet) so not total ban on speech. 10b and c would be total ban
      
4. 
   US v. Playboy- Pacifica in disfavor—more speech protective
   
5.