an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Challenging the Constitutional Framework for Media Regulation
Over the past few weeks, academics and lobbyists have been debating a First Amendment issue--namely, how the First Amendment applies to an Internet access rule called network neutrality (about the the rule, see here and here; about the First Amendment's application, see here and Jack Balkin's testimony).
Today, the trade publications report a potentially new development in the jurisprudence of First Amendment and media/Internet regulation: Cablevision willl apparently ask the Supreme Court to revisit (or narrow) a key Supreme Court case that casts a shadow over communications law--the second Turner Broadcasting v. FCC case, decided in 1997, and known to some as "Turner II."
Cablevision likely has a decent gamble based on court composition. Turner II was a 5-4 decision. Two Justices have since been replaced, O'Connor and Rehnquist. O'Connor wrote the principal dissent for Justices Thomas, Scalia, and Ginsburg; but Rehnquist was in the majority. If the new Justices, Roberts and Alito, vote with Justices Thomas and Scalia (as Cablevision hopes) , the decision flips 5 to 4 the other way.
Here, I will make only a few points about the potential import of this challenge. (I hope to add a few more words later about Turner II itself, which I believe problematic for various reasons.)
My main points are (1) this challenge reminds us that media & Internet cases are among the most important, though often overlooked, First Amendment cases for their impact on our democracy and American's lives, and (2) changes to Turner II's holdings have a potentially wide scope, covering hugely important media regulations 1. The First Amendment's application to 21st Century speech technologies is a question of central importance for our democracy. There are other important areas of First Amendment speech doctrine--indecency, hate speech, flag burning, incitement, campaign finance. But electronic media are often overlooked. Americans engage in/receive probably most of their speech through phone, TV, and Internet--getting most of their news and doing much of their political organizing through these technologies, rather than through paper newspapers, leaflets, or offensive street corner speech and burning flags. Yet free speech casebooks usually devote very few pages to key First Amendment cases involving media ownership rules (like FCC v NCCB regarding ownership of newspapers and broadcasters) and access rules (like Turner II itself, giving access to cable lines for broadcasters, or CBS v FCC, giving access to broadcast stations for politicians). These ownership and access laws, however, are centrally important to promoting the "basic tenet" of the First Amendment--fostering the widest dissemination of information from diverse and antagonistic sources.
Far worse, traditional First Amendment teaching treats such cases as "exceptional," "narrow," somehow "special"--rather than as integral to understanding the underlying structure of First Amendment doctrine. (Some scholars have demonstrated how media ownership and media access cases inform First Amendment theory, like Jack, Ed Baker, Yochai Benkler, Monroe Price, and Mark Tushnet.)
A decision like Turner II, which affects numerous ownership rules and access rules for major communications industries, is important for how Americans can speak to one another in our society--for what they hear and how they communicate about the health care bill, the financial bailout, global warming, reforming the Senate rules, and what's for dinner. It might not be as sexy as "bong hits for Jesus," but it matter greatly.
2. Turner II, which Cablevision hopes to challenge, has a wide (though uncertain) scope. So upending Turner II could raise questions about a lot of regulation.
That Turner II case sets of the test for whether the government has abridged the speech rights of giant cable corporations when it subjects those companies to ownership or access rules. Turner II upheld an access rule, namely a must-carry law requiring cable operators (like Comcast) to carry over-the-air broadcasters (like CBS, NBC, ABC, and Fox).
Turner II did so not by applying strict scrutiny for "content-based" rules (a wise choice), nor by applying a lower scrutiny (such as the scrutiny in FCC v. NCCB and Red Lion), but by adopting the content-neutral intermediate scrutiny test from US v. O'Brien, with an additional requirement of "substantial evidence." This intermediate test is known as the Turner test. (Cablevision's appeal would re-challenge the same must-carry rules, though a particular application of them.)
The long and short of it: a heightened scrutiny applies to access and ownership rules. Applying this heightened scrutiny to media regulations, rather than some lower level, makes courts more likely (if inclined) to strike down an ownership cap or an access rule. But ... those these rules foster wide dissemination of information from diverse and antagonistic sources, and should be encouraged by courts rather than undermined. These rules are at the heart of the Obama tech agenda. They're common throughout all of media and telecom regulation--pervading the Communications Act. So the Turner test could, if widely applicable, require heightened scrutiny for basic communications regulation.
The scope of Turner II is debatable. It applies to TV transmitted over cable lines, and maybe over phone lines too. It doesn't apply to TV delivered through terrestrial broadcasting or (in the DC Circuit, at least) to satellite broadcasting. Nor does it apply to phone service over mobile, phone, or cable lines--for example, common carriage regulation is not subject to heightened scrutiny for limiting phone companies' ability to block calls. No appellate court has applied the Turner test to Internet access services. net neutrality is an access rule because it provides "access" to all Americans who could otherwise be blocked by phone or cable companies in their speech. I assume regulating Internet access is subject to the same low scrutiny as common carrier regulation for phone calls.
The debate wouldn't stop the most powerful media and telecom companies--and their many lawyers--from arguing that the Turner test applies to everything, that the test is actually very very strict (which the cable industry argues, though losing Turner II), and trying to expand that test to all business rules and to all Internet based technologies. You hear that the Turner test would invalidate network neutrality and even rules enabling you to use whatever cell phone or computer you want on a wireless network. The Turner test protects Comcast's right to buy NBC, Time Warner Cable's right to interfere with peer to peer technologies, etc.
If the Supreme Court takes the case, I'll have more to say. I'd also look forward to the broadcasters, who often disagree with me on the scope of their First Amendment rights, being in complete agreement with me in this case on the First Amendment rights of their competitors.
For now, that's what's at stake here if Cablevision convinces the Supreme Court to revisit or narrow the Turner II case. A reversal by the new Court could cast a different, darker, shadow on regulations regarding media conglomerates and those conglomerates' ability to control of speech.
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