In this final installment, I thought I would just offer up a some further reading on the issue for those who might be interested in doing further research on the topic. Although it is certainly not an exhaustive list of all the relevant books and law review articles out there, below you find a bibliography of some of the very best material on the issue of the Pacifica case, the "pervasiveness doctrine," and modern First Amendment jurisprudence. I've also embedded a Scribd version of a law review article I penned on these issues last year that ties together all my thinking on this front. It is called, "Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age."

Whatever legitimacy Pacifica's "pervasiveness rationale" might have once had, it has been largely eroded by modern media developments.

First, the pervasiveness rationale for media regulation fails today because the new content tailoring technologies described in this report make it easier than ever before for parents to manage media in their homes and in their lives of their children. It is impossible to consider video programming an "intruder" in the home when tools exist that can help parents almost perfectly tailor viewing experiences to individual household preferences.

When Justice Stevens argued in Pacifica that broadcast signals represented an "intruder" in the home, he supported that claim by noting that: "Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content." While that may have reflected the state of technology and TV viewing at the time, it is completely at odds with modern realities. In 1978, the viewing experience was a more passive affair and consumers had very few ways to control that experience unless they turned off the television altogether. Today, by contrast, viewers (including parents) have the tools to "tune in and out" at will, and they have abundant "prior warnings" about program content thanks to the existence of ratings, program information, and electronic program guides. These tools help parents restrict or tailor the viewing experience in advance according to their values and preferences.

But here's what's really important about the fact that the industry recovered legal fees in this case and others. As the Entertainment Software Association noted in its press release about the Minnesota settlement: "The ESA [has] prevailed over similar unconstitutional laws in nine other jurisdictions [and] now has been awarded close to $2 million in fees and expenses spent in defending gamers, developers and publishers' First Amendment rights."

As I have noted previously, these cases make it clear that there is a significant opportunity cost associated with censorship efforts. That $2 million in recovered legal fees could have been plowed into educational efforts to help explain to parents how to use the excellent voluntary ratings systems or console-based parental control tools that are at their disposal. Moreover, that $2 million in recovered industry legal fees does not account for the resources that state and local officials put into these regulatory efforts. So, we are talking about a much greater deadweight loss for society and taxpayers.

[Actually, is anyone out there keeping a running tally of the muni failures? If so, let me know so I can just start linking to it instead of all the random blog links. ]

For the past three decades, regulation of television programming has been premised on the "pervasiveness rationale" as articulated in the landmark Supreme Court case FCC v. Pacifica Foundation. In Pacifica, in a 5-4 plurality decision, the Court held:

Of all forms of communication, broadcasting has the most limited First Amendment protection. Among the reasons for specially treating indecent broadcasting is the uniquely pervasive presence that medium of expression occupies in the lives of our people. Broadcasts extend into the privacy of the home and it is impossible completely to avoid those that are patently offensive. Broadcasting, moreover, is uniquely accessible to children.

In one portion of the decision, Justice John Paul Stevens, who authored the majority opinion, even referred to broadcast signals as an "intruder" into the home.

There were always serious problems with the "media-as-invader" logic of Pacifica.

This is going to be very interesting. He may actually benefit from staying overseas an extra couple years. The interesting thing about foreign guys right now -- the value of the dollar versus the euro, being picked 20th and lower in the first round, really becomes an issue.

Forget $140-oil -- when the weak dollar pushes potential NBA basketball players back to the French A-League, you know we're in trouble.

Government regulation always begins with a call from those who claim they are only trying to right some hard-to-argue-against wrongs, but whose consequences are poorly thought out. Today we learn of a new such party, InternetForEveryone.org, which has a mission so contradictory that it almost makes my head explode. Their ideals call to mind the French Revolutionists, who called for "liberty, equality, and fraternity," not realizing that liberty and equality are incompatible -- that making people equal requires liberty-suppressing force. The new group calls for guaranteed high speed Internet access for everyone (a basic right of all Americans, they say), lower usage prices, more competition, and more innovation. Tell me, if we force Internet providers to give access to everyone, then force them to charge less than the marketplace tells them they should, where will the money come from for innovation? And what would happen to the potential profits that might entice others to join in the competition? Guess it will have to come from taxpayers and that government will have to run the show. InternetForEveryone.org claims to be neutral on the net, but it is surely not neutral on government -- they want a lot more of it.

Exactly. It's 'something-for-nothing' economics meets utopian egalitarianism as applied to broadband. But, as Steve notes, there is no free lunch. Every time I debate one of the people or groups involved in this movement, I always ask questions like: What about incentives to invest and innovate? What role do they play in your model? Where is the risk capital going to come from to build these high-fixed cost networks going forward? How will those networks be upgraded over time? And so on.

And they never have any good answers. To the extent they have any answers at all, it always seems to come back to the idea of treating broadband networks like a lazy public utility. You know, because we've had so much success with those! And yet, this crowd seems wants to paint a revisionist history of public utilities and try to convince us that we are just ONE MORE muni fiber or muni wi-fi experiment away from getting it right! Uh-huh, sure we are. Meanwhile, taxpayers are bailing out those past failed experiments all over America right now.

The fundamental problem with the entire Net neutrality movement can be summarized as follows: They obsess about investment and innovation at the margin of networks but spend little time thinking about the preconditions for serious innovation and investment at the core of networks. Government micro-management ain't ever going to get us where we need to be in that regard.

This morning I attended an excellent Freedom Forum conference on "Indecency & Violence in the Media: FCC v. Pacifica 30 Years Later." At the event, Lili Levi of the University of Miami School of Law delivered a terrific address entitled "A Short History of the Indecency & Media Violence Wars." (Incidentally, she is also the author of a highly recommended paper on the topic that is available on SSRN: "The FCC's Regulation of Indecency."

Prof. Levi sketched out what she called the "5 Eras of FCC Indecency Enforcement." Below I will summarize the major developments / trends from each era that she outlined for us today:

Maybe columnist George Will was watching. Writing from Palo Alto today, Will makes the pro-immigration case with characteristic eloquence:

Modernity means the multiplication of dependencies on things utterly mysterious to those who are dependent -- things such as semiconductors, which control the functioning of almost everything from cellphones to computers to cars . . . . Yet their nation's policy is the compulsory expulsion or exclusion of talents crucial to the creativity of the semiconductor industry that powers the thriving portion of our bifurcated economy. While much of the economy sputters, exports are surging, and the semiconductor industry is America's second-largest exporter, close behind the auto industry in total exports and the civilian aircraft industry in net exports.

The semiconductor industry's problem is entangled with a subject about which the loquacious presidential candidates are reluctant to talk -- immigration, specifically that of highly educated people. Concerning whom, U.S. policy should be: A nation cannot have too many such people, so send us your PhDs yearning to be free.

Instead, U.S. policy is: As soon as U.S. institutions of higher education have awarded you a PhD, equipping you to add vast value to the economy, get out. Go home. Or to Europe, which is responding to America's folly with "blue cards" to expedite acceptance of the immigrants America is spurning.

It's astonishing we are still debating this topic. More than a decade ago George Gilder was exposing the same self destructive behavior George Will fights today:

The underplaying of immigration as an economic force stems from a basic flaw in macroeconomic analysis. Economists fail to account for the indispensable qualitative effects of genius. Almost by definition, genius is the ability to generate unique products and concepts and bring them to fruition. Geniuses are literally thousands of times more productive than the rest of us. We all depend on them for our livelihoods and opportunities. . . .

Consider Intel Corp. Together with its parent, Fairchild Semiconductor, Intel developed the basic processes of microchip manufacture and created dynamic and static random access memory, the micro-processor, and the electrically programmable read-only memory. In other words, Intel laid the foundations for the personal computer revolution and scores of other chip-based industries that employ the vast bulk of U.S. engineers today.

Two American-born geniuses, Robert Noyce and Gordon Moore, were key founders of Fairchild and Intel. But their achievements would have been impossible without the help of Jean Hourni, inventor of planar processing; Dov Frohmann-Benchkowski, inventor of electrically erasable programmable ROMs; Federico Faggin, inventor of silicon gate technology and builder of the first microprocessor; Mayatoshi Shima, layout designer of key 8086 family devices; and of course Andrew Grove, the company's now revered CEO who solved several intractable problems of the metal oxide silicon technology at the heart of Intel's growth. All these Intel engineers -- and hundreds of other key contributors -- were immigrants.

The next Intels, the next Googles -- indeed, the next American century -- requires our openness to and recruitment of these "geniuses from abroad."

Unfortunately, when the Supreme Court handed down its Pacifica decision 30 years ago, the First Amendment lost. By a narrow 5-4 vote, the court held that the FCC could impose fines on broadcasters who aired indecent content during daytime and early evening hours. The Court used some rather tortured reasoning to defend the proposition that broadcast platforms deserved lesser First Amendment treatment than all other media platforms. The lynchpin of the decision was the so-called "pervasiveness theory," which held that broadcast speech was "uniquely pervasive" and an "intruder" in the home, and therefore demanded special, artificial content restrictions.

Over the course of the next week, I plan on posting some thoughts about that twisted logic and the legacy of the Pacifica decision in general. In part 2, I'll sketch out the broad outlines of FCC indecency enforcement over the past 70 years. In part 3, I'll be highlighting some of the original deficiencies of the "pervasiveness doctrine." Part 4 will highlight the irrelevancy of Pacifica and the pervasiveness doctrine in light of recent technological developments. These (and potentially other) installments will highlight why Pacifica was always bad law and is even more misguided and unjust in light of recent marketplace developments.

But wait, there's more (per Engadget)!

Here's where it gets interesting, though: rather than taking Symbian's intellectual private for Nokia's own benefit, the goods will be turned over to the Symbian Foundation, a nonprofit whose sole goal will be the advancement of the Symbian platform in its many flavors. Motorola and Sony Ericsson have signed up to contribute UIQ assets, while NTT DoCoMo (which uses Symbian-based wares in a number of its phones) will be donating code as well.

Other Symbian Foundation members include Texas Instruments, Vodafone, Samsung, LG, and AT&T (yep, the same AT&T that currently sells precisely one Symbian-based phone), so things could get interesting. The move clearly seems to be a preemptive strike against Google's Open Handset Alliance, LiMo, and other collaborative efforts forming around the globe with the goal of standardizing smartphone operating systems; the writing was on the wall, and Symbian didn't want to miss the train. Total cash outlay for the move will run Nokia roughly €264 million -- about $410 million in yankee currency.

The fact that we will soon see three open source platforms (counting Google's Android and LiMo) competing for market share provides yet another measure of the exceptionally high degree of competition in the wireless industry.

Doriot's legacy looms large today, even if his name is new to most:

Contemporaneously with ARD's watershed investment in [Digital Equipment Corporation], others began walking the trails Doriot had blazed: Arthur Rock (a student of Doriot's in the Harvard class of 1951) backed the departure of the "Traitorous Eight" from Shockley Semiconductor to form ­Fairchild Semiconductor in 1957, then funded ­Robert Noyce and ­Gordon Moore when they left ­Fairchild to found Intel; ­Laurance ­Rockefeller formed ­Venrock, which has since backed more than 400 companies, including Intel and Apple; Don ­Valentine formed Sequoia Capital, which would invest in Atari, Apple, Oracle, Cisco, Google, and YouTube.

he opposed both the dirigiste political economy of his native France and the tax hikes and anticompetitive laws enacted in the United States under the New Deal. Such regulations, he maintained, arrogated to bureaucrats the function of the markets; their worst feature was that they let government lend money to failing businesses. Ante notes that a former colleague of Doriot's, James F. Morgan, recalled him as "the most schizophrenic Frenchman I've ever met"--devoted to his original land's wine, cuisine, and language even as "the French capacity to make very simple things complicated drove him nuts."

Rep. Anna Eshoo (D-Calif.) has the first problem covered. She and her House colleague Rep. Zoe Lofgren (D-Calif.) are proposing H.R. 6209, the "Commercial Advertisement Loudness Mitigation Act." (Oh, isn't that so cute! The "C.A.L.M. Act"! How very, very witty.) The CALM Act would address "volume manipulation" in TV ads by making sure that TV ads are not "excessively noisy or strident." (Strident! We Americans hate "strident" ads.) The bill would empower regulators at the Federal Communications Commission to take steps to ensure that "such advertisements shall not be presented at modulation levels substantially higher than the program material that such advertisements accompany; and, the average maximum loudness of such advertisements shall not be substantially higher than the average maximum loudness of the program material that such advertisements accompany."

Clearly, this is valuable use of our regulators' time. I look forward to the day when I can visit the FCC and see my tax dollars at work as teams of bureaucrats closely monitor each episode of "Desperate Housewives" and "Swingtown" in search of such malicious volume manipulation during the commercial breaks. (Incidentally, where is the form I need to fill out to get that job? Heck, I'll take minimum wage pay to do this all day long.)

That's economist Lawrence Lindsey's bottom-line assessment of Barack Obama's plan to raise the top marginal income tax rate and lift the cap on Social Security taxes. Obama's move would catapult the top marginal tax rate from 37.7% today all the way to 53% -- and that's before state and local income taxes.

Lindsey explains why raising top marginal tax rates yields little revenue but big downside distortions:

the economic well-being of the country is not measured by how much taxes the government can collect, or even the size of the deficit. Rather, it is measured by the country's productive capacity. Our theoretical entrepreneur's 11.2% decline in taxable income reflects both less effort on his part and a less efficient use of his income in order to avoid confiscatory tax rates. Or, to put it directly, Sen. Obama's plan would reduce an entrepreneur's after-tax profits by $70,000 - $56,000 in lost profits and $14,000 more in taxes - just to produce a net revenue gain to the government of $14,000.

But the tax hike story doesn't end there.

Obama has also proposed boosting the capital gains tax to 28%. Combine that with rising inflation, and you get a huge new tax on at-risk capital. Economist Michael Darda explains the risk to both the stock market and overall growth.

Capital gains taxes are set to rise to 20% from 15% in 2010 (with the dividend tax rate reverting to the top marginal income tax rate). Sen. Obama has proposed a bump in the capgains tax to 28% from 15%. A 28% capital gains tax, along with 4% headline inflation, would raise the effective tax rate on capital to 50% from 28%, and lower our model's stimulation of the forward P/E ratio to 12.1 from 15.3. This could cut the S&P 500 down by 15-20%, which would increase the cost of capital, lower the capital-to-labor ratio, retard trend productivity growth, and lower income and wage gains across the country. It simply makes no sense in this context. This is a significant risk looming over the market at a particularly inopportune time.

Effective marginal tax rates on both income and capital gains could thus explode north of 50% in the next few years. In today's hyper-competitive supply-side world, we can't afford such an enormous leap backwards.

Or as Nobel prize winner Bob Mundell says, "I look upon the United States still as the main sparkplug of economic growth in the world." It thus follows, he says, that rescinding the Bush tax cuts "would be devastating to the world economy."

UPDATE: Don Luskin of Trend Macro makes another good point:

Worst of all, even the small contribution to Social Security solvency that Mr. Obama's plan might make is entirely illusory. In fact, the more taxes his plan collects, the worse Social Security's long-term situation gets. That's because all plans based on collecting taxes and saving them in the Social Security Trust Fund for future benefit payments rely on the U.S. government being able to redeem the Treasury bonds that trust fund holds.

There's only one place that the money to redeem those bonds can come from: taxes. So ironically, any tax dollars collected today will have to be collected all over again - plus interest. You like the idea of paying more taxes today for Mr. Obama's Social Security plan? Then just wait 20 years or so, because you'll get to pay more taxes all over again.

Obama's tax bomb is not the way to sustain America's fragile global lead in entrepreneurship and innovation.