The Impact of Pacifica Foundation on Two Traditions of Freedom of Expression (with Endress)

The purpose of this article is not to debate the wisdom of the use of sensitive language on the electronic media or elsewhere. The admonition that the perceived wisdom of governmental regulations should never be confused with the issue of their constitutionality remains appropriate. Nor is it our purpose to debate the substantive question of whether the Court reached the proper result in Pacifica, although we will necessarily have much to say by implication on this issue. The purpose of this article is rather to assess the impact of Pacifica on the two traditions of freedom of expression which continue to coexist ueasily in our nation. An assessment of the impact of Pacifica is of particular importance because "[i]t is characteristic of the freedoms of expression in general that they are vulnerable to gravely damaging yet barely visible encroachments."