Pervasive Problem

The 1978 Supreme Court decision allowing censorship of dirty words on radio threatens free speech in cyberspace.

Jonathan D. Wallace from the October 1998 issue

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Nor does the potential reach of the pervasiveness doctrine end with the Internet. Author Wendy McElroy, former president of Feminists for Free Expression, comments: "Taken to its logical conclusion, the pervasiveness argument would prohibit anyone standing on a public street from discussing...controversial matters. The open air might well transmit the discussion through the open windows of nearby houses, businesses, and apartments. One might reply, `Let them close the window.'"

In Pacifica, the Court failed to explain why books and magazines are not pervasive. Previous generations of American children saw their first nude image not on the Internet or cable TV but in the pages of a Playboy found in Dad's closet. As Justice Brennan pointed out, a child flipping through the pages of the Bible is apt to stumble across a passage pertaining to excrement, urination, rape, or incest. The danger of the pervasiveness doctrine is a matter of simple logic: If the pervasiveness of a medium is an excuse for censorship, and all media are pervasive, all media can be censored.

"Taken literally," says Washington, D.C., attorney and First Amendment specialist Robert Corn-Revere, "the pervasiveness doctrine empowers government to exert greater control over a medium of communication to the extent it is universally available and influential. By this logic, the printing press should be subject to intensive regulation, since few media are as pervasive as print. Such reasoning is antithetical to the First Amendment."

The operative metaphor for freedom of speech in the United States was formulated eight decades ago by Oliver Wendell Holmes. Dissenting from the Supreme Court's decision in Abrams v. United States, he wrote: "The ultimate good desired is better reached by free trade in ideas....The best test of truth is the power of thought to get itself accepted in the competition of the market." In the marketplace of ideas, every medium strives to be pervasive, and so does every idea communicated in those media. The First Amendment rule book says speakers should compete to make their messages as pervasive as possible. Pacifica penalizes the winners.