Yale Law & Policy Review
Should the FCC take steps to prevent repeated advocacy of specific violent acts on the airwaves? If so, it must meticulously differentiate between mainstream government critics who are exercising First Amendment rights of dissent, and inciters of murder and sabotage. This Article proposes a new test to guide the FCC in that endeavor. Part I begins with an overview of communications law and the FCC's erratic enforcement efforts-what it has chosen to regulate unhesitatingly (e.g., dangerous hoaxes and indecency) and what it has ducked. The next sections will analyze the inadequacy of the Supreme Court's incitement jurisprudence. The 1969 Brandenburg v. Ohio decision held that advocacy could be proscribed only when it is "directed to ... producing imminent lawless action" and is likely to have such a result. This formulation is both overinclusive and underinclusive. On the one hand, the Justices would punish advocacy of civil disobedience such as an immediate trespass at an IRS office. On the other hand, they would protect inciters of a bombing that requires lengthy and complex preparation. One of the reasons for this anomaly is that the Court's "political speech" calculus was devised in response to stump speakers addressing particular audiences and is unsuited to media personalities inciting a wide variety of anonymous listeners. Part II of the Article presents and illustrates the proposed media test, which seeks to distinguish a call for non-violent protest from an exhortation to murder, and reasoned argument from relentless creation of panic. Subsequent sections treat a number of potential objections to the test and discuss implementation of it in the context of the FCC's position as an independent agency within the Executive Branch.
Policing Speech on the Airwaves: Granting Rights, Preventing Wrongs, 15 Yale L. & Pol'y Rev. 447
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