This Comment argues first that broadcasting should receive the same First Amendment protection as other media. Second, it argues that the government's compelling interest when regulating broadcast indecency is not in protecting children-that is a role for parents, not the government. Instead, the sole interest that the government should assert and advance is a facilitation interest: "facilitating parental control" over what their children see and hear. This distinction is vital because the stated interest determines which regulations are the least restrictive means to serve that interest.
This Comment concludes that Congress created the second-best solution with the V-Chip provision in the Telecommunications Act of 1996, by expressly relying on an interest in facilitating parental control over their children's television viewing. The law requires that the television industry rate programs and transmit those ratings with the broadcast signal, that television sets be equipped with a device that reads the signal, and that parents have the means to screen out those programs, channels, or time slots they do not want their children to watch.
Part II of this Comment analyzes the statutory and case law support for the current laws regulating broadcast indecency. It focuses on Pacifica and ACT III, the key decisions upholding content-based regulations. Part III discusses the problems with the current regulatory scheme, concentrating mainly on scholarly criticism of the distinction between broadcasting and other media, and the current scheme's infringement on the First Amendment and other constitutional rights of adults. Part IV analyzes the "facilitation interest" and its support from scholars and judges, and then discusses the V-Chip law and its constitutionality, showing why it is the second-best solution to regulating broadcast indecency.
Howard M. Wasserman,
Second-Best Solution: The First Amendment, Broadcast Indecency, and the V-Chip [comments]
, 91 Nw. U. L. Rev. 1190
Available at: https://ecollections.law.fiu.edu/faculty_publications/78