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33 Colum. J.L. & Arts 81 (2009-2010)
Time to Change the Channel: Assessing the FCC's Children's Programming Requirements under the First Amendment

handle is hein.journals/cjla33 and id is 83 raw text is: Time to Change the Channel: Assessing the FCC's Children's Programming Requirements under the First Amendment Brittney Pescatore * When Congress passed the Communications Act of 1934, creating the Federal Communications Commission (FCC), it withheld the power of censorship from the Commission and prohibited it from interfering with the right of free speech. This concern of the Congress, which reflects the values of free speech enshrined in the First Amendment of the United States Constitution, seems to support the general First Amendment principle that the government cannot dictate media content. However, the Communications Act also imposes upon broadcasters an affirmative obligation to operate in the public interest.2 This creates a tension not just among competing goals of the Communications Act, but also between the popular interest in programming that serves the public interest and the powerful barrier to government regulation of speech that comes from the First Amendment.3 Courts have sought to mediate this tension by articulating a First Amendment doctrine unique to the broadcasting context, with lower barriers to government interference than the First Amendment erects for other media. This lesser protection for broadcast speech has allowed the FCC to place content-based burdens on speech that would not likely be upheld in a print media context. There has been a lot of discussion lately about the way this doctrine allows the Commission to impose certain negative programming requirements, such as bans on indecency.4 Attention has also begun to turn to affirmative programming obligations, with some lawmakers expressing fear that the Commission is flouting First Amendment principles through localism requirements and even a possible * J.D. Candidate 2010, Columbia Law School; B.A. English and Government, The College of William and Mary. Thanks to Jake Honigman and David Schulz for their helpful input. 1. Communications Act of 1934, 47 U.S.C. § 326 (1934); Ark. Edue. Television Comm'n v. Forbes, 523 U.S. 666, 688 (1998) (Stevens, J., dissenting) (emphasizing that Congress's decision to license private broadcasters reflected a concern that public ownership provided too great a risk of government censorship and propaganda); Columbia Broadcasting Sys., Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 110 (1973) (CBS v. DNC) (Congress intended to permit private broadcasting to develop with the widest journalistic freedom consistent with its public obligations.). 2. Telecommunications Act of 1996,47 U.S.C §§ 315a, 326 (2006). 3. CBS, Inc. v. FCC, 453 U.S. 367, 399 (1981) (White, J., dissenting) (history of broadcast regulation shows congressional attempt to find a balance between desire to regulate limited resource and importance of giving broadcasters editorial discretion). 4. See, e.g., Frank Ahrens, Networks Say Live TVIs at Stake in Fox Decency Case, WASH. POsT, Apr. 5, 2008, at D3; FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800 (2009). 81

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