Briefing Paper No. 35

The Specter of Pervasiveness: Pacifica, New Media, and Freedom of Speech

By Jonathan D. Wallace
February 12, 1998

Executive Summary

Under the legal doctrine of pervasiveness, media such as television and radio get much less protection from censorship than do print media. The Supreme Court should reject the pervasiveness doctrine as a dangerously broad and vague excuse for speech regulation. If the doctrine applies to any medium, it could arguably apply to all media. The pervasiveness doctrine thus threatens to curtail the First Amendment’s protection of freedom of speech.

The pervasiveness doctrine relies on a crabbed view of individual responsibility and property rights. We invite the broadcast media into our homes and alone bear the responsibility for controlling our children’s access. The pervasiveness doctrine wrongly puts such choices in the hands of politicians and bureaucrats.

Technological advances threaten to lead to wider applications of the pervasiveness doctrine. As the Internet expands into one-to-many voice or video communications, courts might decide to treat it as the legal equivalent of pervasive radio or TV broadcasts.

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Jonathan D. Wallace publishes Ethical Spectacle, available at http://www.spectacle.org, and is coauthor of Sex, Laws and Cyberspace (New York: Henry Holt, 1996). He is a software executive and attorney in New York City.