Broadcast Regulation and the Irrelevant Logic of Strict Scrutiny

Abstract

This Article focuses on traditional FCC regulation of the content of broadcast entertainment television. Recent litigation involving Fox Television and other broadcasters has raised a number of constitutional issues. This Article, however, makes a fundamental and largely practical point: the basic assumptions underlying traditional FCC regulatory policies have been rendered technologically obsolete. The Article simply assumes, for the sake of argument, that the basic FCC policies are in some respects constitutionally sound. In particular, the Article assumes that the federal government has a sufficient interest in regulating the broadcast entertainment material to which children and young adults are exposed, and in supporting parents’ efforts to control their child’s exposure to such material. The crucial constitutional problem, though, is that the FCC must show that its regulations sufficiently advance the cited interests. This, it turns out, the FCC can no longer do, in light of recent widespread technological developments. Realistically, children and young adults now have convenient alternative forms of access to the sorts of content the FCC continues to seek to regulate. Typically, alternative access can be gained through time-shifted viewing, or through an increasing variety of mainly Internet-based alternatives to real-time television broadcasting received on a TV set. Typical FCC regulations thus now burden broadcaster speech without adequately promoting any sufficient government interest, and are thus in at least this respect unconstitutional.