The First Amendment's "Scarcity Rationale": Elena Kagan and Media Regulation

Marvin Ammori

In 1995, wearing her "academic hat," Elena Kagan gave a speech to the National Association of Broadcasters, the Newspaper Association of America, and the Libel Defense Resource Center on the Relationship Between First Amendment Doctrine and Technological Change.

In the speech, she said something that would have been welcome to the broadcasters in the room: that the usual constitutional rationale resulting in "lesser" constitutional protection for broadcasters' speech was senseless. Kagan told the audience:

For example, did the scarcity rationale ever make sense with respect to broadcasting? Perhaps courts should only with great forethought and caution determine that new technology demands a new legal framework.

The consequence to her assertion is simple: if this key rationale, "scarcity," is senseless, then broadcasters like ABC and Clear Channel deserve increased constitutional protection for their speech. And this increased protection would come from judges and Justices (such as a Justice Kagan) striking down congressional and FCC rules on broadcasters.

In mocking the scarcity rationale, Elena Kagan was disagreeing with Supreme Court majorities, as no majority has yet voted to abandon the scarcity rationale.

Kagan was, however, agreeing with the broadcast lawyers in the room. She was also agreeing with Justice Clarence Thomas, who has devoted concurrences to attacking the rationale, siding with broadcasters. But Justice Thomas and Kagan have many allies on this one--perhaps the majority of conservative and liberal free speech scholars at the time would have agreed that the scarcity rationale made no sense. Her statement would have been almost uncontroversial.

But, if Dean is confirmed to the Court, she will likely understand why the Supreme Court has never abandoned the rationale, despite the often off-hand academic attacks. The real-world consequences of eliminating the scarcity rationale would be far-reaching--resulting in destabilizing the framework for communications in our society and producing outcomes adverse to individual speech rights.

These consequences are something that most speech scholars (including Kagan in 1995) generally overlook. This is understandable as--with our specialized academic culture--many speech scholars are simply not expert in or even aware of the rules governing media, but necessarily specialize in some other important aspect of speech doctrine.

But the "unintended" consequences of eliminating the scarcity rationale are real. The consequences include heightened judicial aggression (1) against some long-established campaign finance rules (both disclosure and access rules), (2) against government rules (with 80-years of precedent) for assigning frequencies to those who communicate wireless-ly from CBS to Verizon (paraphrasing Larry Lessig and Yochai Benkler, eliminating the scarcity rationale would make CBS "unconstitutional"), (3) against numerous media ownership limits designed to ensure that a small handful of corporations do not control the public's sources of information, (4) against rules promoting children's educational programming, and (5) against rules promoting noncommercial programming on satellite TV.

Indeed, while overlooking these consequences, scholars' desire to eliminate the scarcity rationale seems targeted at exactly one 40-year-old case (called Red Lion, discussed below) that upheld a law that has now been repealed (and dead) for over 22-years. But eliminating the far-reaching scarcity rationale to undermine Red Lion is like cutting off your fingers to clip your (already clipped) fingernails. In fact, considering the far-reaching effects, it's more like axing off your entire arm. The scarcity rationale, senseless as it may seem, underpins many decisions that speech scholars--and most Americans--would strongly endorse.

I write this post in three parts.

I. I briefly explain the scarcity rationale, and do so from the point of view of its critics. Based on their understanding of the rationale, the rationale is as senseless as Kagan says.

II. I continue with real-world consequences, which are noted above. Dozens of rules--obscure but highly significant--would be constitutionally suspect.

III. If the scarcity rationale doesn't make sense but generally leads to good results, then a better understanding is necessary. I briefly note what I think the scarcity rationale is really about, and which other rationales would place the many scarcity-supported pro-speech outcomes on firmer footing.

I. The Senseless Scarcity Rationale.

Many speech scholars would describe the scarcity rationale this way: government can impose rules on TV and radio broadcasters that it could not impose on pamphleteers and newspapers because of the technological scarcity of usable wireless frequencies.

If I had a radio set (or a TV with bunny ear antennas) and two or more people transmitted at 88.1 kHz, my radio set could not play any of the signals. Rather than hearing speech, I would hear static and crosstalk.

As a result, back in the 1920s and 1930s, the US government gave licenses to certain companies to broadcast at certain frequencies, and forbade others from broadcasting without licenses. Because only a few companies received the licenses (and government kicked a lot of groups off the airwaves), the government imposed rules and guidelines on the broadcasters to ensure covered important local issues, public issues, and generally to do so "fairly."

The scarcity rationale, importantly in this account, results in a different "standard of scrutiny" than applied to other media speech--not strict scrutiny, but often intermediate or even apparently lower scrutiny. (But neither Red Lion nor the subsequent newspaper case once references standards of scrutiny, as the standards are more recent doctrinal devices; rather, they analyzed the challenged rules and the facts, then reached a conclusion. Some cases suggest that scarcity would be merely a fact to be weighed when applying the usual standards, while more interpret Red Lion to apply differing standards.)

Based on this account, the scarcity rationale is senseless in at least two ways.

First, almost everything is scarce, including paper and pen, so frequencies are no different. The government usually cannot regulate who uses pens and papers--or worse, what you can write with those pens--based on their scarcity. Rather, the government just sets up markets in scarce goods.

Second, even if the scarcity of the frequencies justified initial licensing--of radio broadcasters, satellite broadcasters, wireless phone companies among others--it does not justify intrusive content regulation.

The key example here is the fairness doctrine, an FCC rule, abandoned in 1987, requiring broadcasters to cover public issues, and to present both (or many) sides of the issue. The Supreme Court unanimously upheld the fairness doctrine in Red Lion in 1969 (the year it decided Brandenburg v. Ohio), concluding that the rights of viewers, not broadcasters, are "paramount." The Court did agree that the doctrine could be unconstitutional with evidence of government silencing dissent through the doctrine.

Worse, just a few years later, in 1974, the Court unanimously reached the opposite result for newspapers--striking down a state law similar to the fairness doctrine. Scholars argue that the two cases cannot be reconciled, as the supposed distinction (scarcity) is senseless. Therefore, broadcasters deserve the same protection from the fairness doctrine as newspapers (and, say, pamphleteers).

I'll note two arguments that miss the point. Some believe "scarcity" underlies broadcasting indecency rules. Other rationales are relevant there ("pervasiveness" and "unique accessibility for children"). In Pacifica , the lead broadcast indecency case, Justice Brennan's dissent commended the majority for this:"The [majority opinions] rightly refrain from relying on the notion of "spectrum scarcity" to support their result. ... [A]lthough scarcity has justified increasing the diversity of speakers and speech, it has never been held to justify censorship."

Second, some argue scarcity no longer exists because there are so many media outlets available to individuals. But scarcity refers to the scarcity of wireless frequencies, not scarcity of the number of media outlets. Licensing AM stations and punishing pirates for transmitting without a license does not rest on the abundance of outlets.

I. Revolutionary Consequences of Eliminating the Scarcity Rationale.

I am not going to defend the fairness doctrine. (I am on record opposing it.) But the fairness doctrine is, in my analogy above, the (already clipped) fingernails.

If we eliminate the scarcity rationale as Kagan suggests, and ratchet up the constitutional scrutiny for broadcasters as broadcasters argue, here are some major consequences.

1. Electoral rules.

(A) Reasonable access for candidates. Broadcasters are required to "allow reasonable access to or to permit purchase of reasonable amounts of time for the use of a broadcasting station by a legally qualified candidate for Federal elective office." The Supreme Court held that this rule properly balances the free speech rights of broadcasters, the public, and the viewers--whose rights are paramount.

(B) Record keeping. Broadcasters must keep a record of requests by candidates or others for airtime regarding elections or national legislative issues. In the 2004 decision, McConnell v. FEC (another part of which was overruled in Citizens United), the Court cited Red Lion for the FCC's broad authority over broadcasters.

(2) Broadcasting would be suspect. Opponents of scarcity will argue that scarcity "no longer exists" because of new technologies enabling unlicensed uses like wi-fi. Just like air, which is not meaningfully scarce, government should be unable to license people to speak through the air. This conclusion, however, would eliminate broadcasters--something that would make them unhappy. Rather, they want licenses without obligations. But, without scarcity, the government could not assign licenses to some speakers and silence others, such as "pirate broadcasters"--and anyone else who wants to broadcast, by mobile satellite, fixed satellite, wireless broadband service, AM radio, international services coordinated with the ITU, or dedicated unlicensed like wi-fi, etc.

(Some argue scarcity no longer exists because there are so many media outlets available to individuals, but scarcity refers to scarcity of wireless frequencies, not scarcity of the number of media outlets. Licensing AM stations and punishing pirates does not rest on the abundance of outlets.)

(3) Media ownership limits would be suspect. The government has imposed many ownership limits on broadcasters and on cable companies. For broadcasters, these include a limit on broadcasters owning too many local or national stations, multiple networks, and forbidding newspaper owners (under certain conditions) from acquiring broadcast licenses overlapping with their newspaper-circulation areas. To be clear, in this case and others, the government's interest was not an economic antitrust interest--it was a speech interest, which was supported by scarcity.

In the words of Justice Thurgood Marshall, writing for a unanimous court to uphold one of these rules, these rules are "designed to further, rather than contravene, the system of freedom of expression"; and to promote "the public interest in diversified mass communications."

Broadcasters, in arguing against the scarcity rationale, have a very different view. They argue that they should be allowed to gobble up as many stations as they see fit--just as a pamphleteer can buy as many pamphlets as he'd like. It is the interest of the broadcaster to buy stations--not the public's interest in diverse communications--for which they argue.

Without the scarcity rationale--something not applicable to cable systems--cable companies can challenge cable ownership limits as violating their First Amendment rights to "speak" by amassing cable holdings across the country. And, in the DC Circuit case testing FCC cable ownership limits, the court bought the argument and struck down the rules. (The standard applied was Turner, something Kagan has also discussed.)

So eliminating the scarcity rationale would make it far more difficult to advance policies supported by Barack Obama (and others, including, historically, some Republicans) ensuring diversity of ownership among TV and radio broadcasters.

(4) Requiring children's educational programming would be suspect. Today, the FCC provides renewal preferences to stations that air at least 3 hours a week of children's educational programming. (Not all of it is highly educational.) When the FCC extended these rules to digital broadcasting, in 2004, the broadcasters appealed (to the usual DC Circuit). Without the scarcity rationale, the broadcasters might have had a strong argument that requiring "educational" programming was "content-based" and therefore unjustifiable (which I think misunderstands the content-based precedent) and interferes with editorial discretion (imagine requiring a pamphleteer to hand out children's educational pamphlets a certain percentage of the week, or to devote a particular portion of their papers to educating children).

Because of scarcity, the rights of the viewers, including children, would be doctrinally paramount. (Disclosure: I was a lawyer on this appeal, representing the children's groups. We settled the case.)

(5) Noncommercial educational programming on satellite TV. When the DC Circuit confronted rules requiring 3% of capacity on private satellite TV providers be reserved for noncommercial educational programming, the court seemed unable to uphold the rule without the scarcity rationale. The court invoked the rationale, determined that under the rationale a rule must promote the speech interests of "viewers and listeners" in diverse communications and in access to political and educational speech. The lower court, which did not invoke scarcity, had struck down the rule.

But what about eliminating the fairness doctrine? Some might argue that it's worth the upheaval of questioning these campaign finance, licensing, consolidation-limiting, educational and non-commercial programming rule to finally overrule Red Lion. But so what? The fairness doctrine (and other rules upheld in Red Lion) have been long repealed, and are sure never to return.

III. A (Slightly) Better Way to Think About Scarcity.

The much-mocked scarcity rationale, dissed by Dean Kagan herself, has been so resilient--surviving since 1943 at least--largely because the alternative is simply unacceptable as a matter of doctrine and effect on society. The alternative is for courts to use the First Amendment to require media consolidation and to undermine efforts to ensure Americans have access to diversified and public communications through wireless communications.

The key question is how to balance the government's legitimate, pro-speech, interests without harming the public speech interests by permitting government censorship. That is, how can the government pursue rules like those effectuating the public's right "to receive suitable access to social, political, esthetic, moral and other ideas and experiences"; to ensure "the widest possible dissemination of information from diverse and antagonistic sources"; and engage in "efforts to enhance the volume and quality of coverage of public issues"--while not giving the government too broad a mandate to suppress speech.

Based on these two interests--public information and non-censorship--rules like ownership limits and some access rules should be broadly acceptable. As, indeed, they have been, though they have been acceptable based on what academics consider a "senseless" rationale.

What is not helpful, I think, is trying to map the balancing of these two interest on "standards of scrutiny," just as we don't feel the need to translate NYT v. Sullivan's "actual malice" or Brandenburg v. Ohio's "imminent lawlessness" into standards of scrutiny. Justice Stevens himself had criticized the over-emphasis on these standards, with regard to content-distinctions he described as pervading speech doctrine, despite pushback from Justice O'Connor and others.

So "perhaps," as Dean Kagan said 15 years ago, "courts should only with great forethought and caution determine that new [even 80-year old broadcast] technology demands a new legal framework." Without that forethought and caution, there would be considerable consequences.

Posted 11:36 AM by Marvin Ammori [link] (39) comments

The Future of Redistricting Reform

Heather K. Gerken

Last week, the Columbus Dispatch reported that while redistricting reform efforts were stymied in the state legislature, Ohio was well on its way to choosing the official state amphibian. Needless to say, it's a bad sign when a reform cause ranks below salamanders on the legislative agenda. The story was just the latest illustration of how hard it is to get redistricting reform passed. The central problem with redistricting reform is that the people who know the most about the issue and care the most about the issue . . . are the politicians who oppose it.

I just posted a paper that focuses on strategies for getting redistricting reform passed. Typically, academics and reformers try to take the politics out of election regulation by pushing for a nonpartisan districting process. Nonpartisan districting is surely a noble cause and a perfectly sensible long-term goal. But we have allowed that instinct for nonpartisanship to shape our short and medium-term strategies for achieving reform.

That is a mistake. Ours is a system where the foxes are guarding the henhouse, where legislators set the rules of the game at the same time they play it. Needless to say, they are loathe to give up this power. Yet most reform strategies turn on asking politicians to ignore their own interests and do the right thing. Perhaps unsurprisingly, these strategies have not produced much by way of results.

If we are interested in getting reform passed, we have to do something more than appeal to self-interested political actors to ignore their self-interest. We need to realign the incentives of the foxes with those of the hens, to redirect competitive political energies into healthier channels. For those interested in reform, the paper offers concrete proposals for doing so and surveys the cutting-edge work in this area.
Posted 10:15 AM by Heather K. Gerken [link]

Paging Dr. Mengele: Medical Experimentation and the CIA Detainees

Steve Vladeck

It had seemed, at least until late last week, that intervening events had taken most of the attention away from one of the most significant controversies of President Obama’s first year in office—whether senior Bush Administration officials should be investigated for their role in the documented torture and other abusive treatment of non-citizens detained as terrorism suspects. President Bush himself may have rekindled the controversy with his surprisingly candid comments about waterboarding, but that pales in comparison to the implications of a new report, released this morning by Physicians for Human Rights (PHR) (and available through this link).

In the report, titled “Experiments in Torture: Evidence of Human Subject Research and Experimentation in the 'Enhanced' Interrogation Program,” PHR marshals strong evidence that doctors working for the U.S. government conducted “illegal and unethical” human experimentation and research on detainees in CIA custody. In particular, the report concludes that

Health professionals working for and on behalf of the CIA monitored the interrogations of detainees, collected and analyzed the results of those interrogations, and sought to derive generalizable inferences to be applied to subsequent interrogations. Such acts may be seen as the conduct of research and experimentation by health professionals on prisoners, which could violate accepted standards of medical ethics, as well as domestic and international law. These practices could, in some cases, constitute war crimes and crimes against humanity.

In other words, because medical professionals were intimately involved in the EIT program, and appear to have used prior experiences with individual detainees to suggest ways of increasing the effectiveness of the techniques going forward, these individuals were effectively conducting the very kind of research and experimentation that ethical codes, federal regulations, and international law all prohibit.

---

The Report is quite clear that many of its conclusions are based on inferences and other circumstantial evidence (much of the crucial information remains classified), and avoids reaching final conclusions as to whether any of these codes, rules, or laws were broken. Nevertheless, as the Report concludes, "a comprehensive federal investigation is required to answer the questions this evidence raises."

Regardless of whether the EITs themselves were violations of federal or international law (on this point, at least, I don't imagine I'll convince anyone of a view distinct from that which they already have), there seems far less room for debate over the propriety of human subject research and experimentation. The so-called "Common Rule," which applies to the CIA and the Department of Defense (along with a number of other major federal agencies), bars such research without the consent of the subject. And the United States was not just instrumental in creating the body of international law that prohibits the practice; it was a U.S. military commission at Nuremberg that tried 23 Nazi officials (20 of them doctors) in the "Doctors' Trial" after World War II, convicting 16 of the defendants (and executing seven) for war crimes and crimes against humanity arising out of their involvement in medical experimentation on, inter alia, concentration camp internees. In the process, the Nuremberg Military Tribunal (NMT) articulated what has since become known as the "Nuremberg Code"--10 principles to set the permissible boundaries of human subject research. We, in other words, set the precedent that such conduct by medical professionals is more than just unethical and illegal, but is in fact a war crime. [And then we watered down the War Crimes Act in the Military Commissions Act of 2006, but I digress . . .]

Given that so much of the critical information remains classified (including, as the PHR Report notes, the unclear role of OLC with regard to the medical professionals), it would be imprudent to speculate on what specifically happened, or who may actually be liable. The larger point, though, is that these charges only reinvigorate a point that I'm neither the first nor last to make: We still don't know what we don't know about the EITs, about who was behind them, and about how they were implemented. Thus, this Report is not about the well-worn debate over whether or not torture was committed, or, alternatively, whether individual techniques constituted "torture." Regardless of the legality of the individual interrogation techniques, any non-consensual medical experimentation would have been against both federal and international law. And as PHR's Report concludes,

The use of health professionals to monitor intentionally harmful interrogation techniques places them in the service of national security objectives which are in conflict with the interests of those who they are monitoring. The result has been a co-opting of health professionals by the national security apparatus and a violation of the highest medical admonition to “do no harm.” Until the questions examined in this paper are answered and, if ethical violations or crimes were committed, those responsible are held accountable, the misuse of medical and scientific expertise for expedient and non-therapeutic goals jeopardizes the ethical integrity of the profession, and the public trust in the healing professions risks being seriously compromised.

Posted 12:01 AM by Steve Vladeck [link] (13) comments

Where was the TVPA in Samantar?

Steve Vladeck

Opinio Juris has been running a useful "insta-symposium" on Monday's Supreme Court decision in Samantar v. Yousuf, which held that the Foreign Sovereign Immunities Act does not apply to suits against officials of a foreign state as opposed to those against the state itself. Although it's difficult to disagree with Justice Stevens's ("admirably careful," according to Justice Scalia) textual analysis, I'm nevertheless surprised by the absence of a line of reasoning in both the majority opinion and OJ's commentaries: the relevance vel non of the Torture Victim Protection Act of 1991 (TVPA).
Posted 12:03 AM by Steve Vladeck [link] (0) comments

Election Law's Imperial Aims

Heather K. Gerken

Scholars can be a bit tribal. We all specialize, and when you specialize, you end up talking to the same people about the same kinds of problems for a good, long while. Fields thus tend to be united not just by a subject area, but by a sensibility – a shared sense of what counts as an interesting problem and a promising solution.

I just posted a short piece on SSRN about the relationship between the sensibilities of the two tribes of which I am a member -- election law and constitutional law. I offer a tongue-in-cheek history of election law's development as it moved from a faraway outpost of constitutional law to an independent field in its own right. The notion of election law's exceptionalism has by now become conventional wisdom among scholars in the field, as most agree that constitutional law cannot be applied witlessly to the domain of elections. If scholars are divided between lumpers and splitters -- those who see connections across subject areas and those who think contextual differences matter most -- then we have written about the relationship between election law and constitutional law largely in the cadence of the splitter.

In the paper, I call for a bit more lumping. While election law is exceptional, portions of constitutional law are exceptional as well. There may be more opportunities for intellectual arbitrage than people have typically imagined. For this reason, I think that election law scholars ought to have imperial aims. They should do more than declare their independence from constitutional law; they should colonize it. There are lessons to be drawn from election law, sensibilities that permeate the field that are not as prevalent elsewhere, a distinctive perspective that might help reframe conventional constitutional law debates. The paper thus charts some of the ways in which we might translate election law’s insights into the domain of constitutional law.
Posted 9:58 AM by Heather K. Gerken [link]

The UN's New Report on Targeted Killing

Deborah Pearlstein

Cross-posted at Opinio Juris

I hate to interrupt the terrific insta-symposium on the Supreme Court's decision in Samantar already underway at Opinio Juris, but I did want to note the much-anticipated release of Philip Alston’s report as UN Special Rapporteur on Extra-Judicial Killings. I take it the relevant press release and report will be available here. I’m just now paging through it, but for now, a few brief notes.

Broadly, while acknowledging the sometime-legality of targeted killing, the report cautions that “circumstances in which targeted killings are alleged to be legal” have become “excessively broad,” and mechanisms that might help ensure accountability for their legality – including any measure of transparency – are missing. From the press release:

“[T]here are indeed circumstances in which targeted killings may be legal. Targeted killings are permitted in armed conflict situations when used against combatants or fighters, or civilians who directly engage in combat-like activities,” Mr. Alston noted, “but they are increasingly being used far from any battle zone.” According to the UN Special Rapporteur, the United States, in particular, has put forward a novel theory that there is a ‘law of 9/11’ that enables it to legally use force in the territory of other States as part of its inherent right to self-defence on the basis that it is in an armed conflict with al-Qaeda, the Taliban and ‘associated forces’, although the latter group is fluid and undefined. “This expansive and open-ended interpretation of the right to self-defence goes a long way towards destroying the prohibition on the use of armed force contained in the UN Charter. If invoked by other States, in pursuit of those they deem to be terrorists and to have attacked them, it would cause chaos,” he said. Mr. Alston emphasized that “I do not for a moment question the seriousness of the challenges posed by terrorism. I condemn wholeheartedly the actions of al-Qaeda and all other groups that kill innocent civilians, as well as any groups that increase the danger of attacks on civilians by hiding in their midst. These actions unequivocally violate international law. But the fact that such enemies do not play by the rules does not mean that a Government can cast those rules aside or unilaterally re-interpret them. The credibility of any Government’s claim that it is fighting to uphold the rule of law depends on its willingness to disclose how it interprets and applies the law – and the actions it takes when the law is broken.”

As for the accountability issue, again from the press release, Alston is quoted as saying:

“[I]t is an essential requirement of international law that States using targeted killings demonstrate that they are complying with the various rules governing their use in situations of armed conflict.” The clearest challenge to this principal today, according to the independent expert, comes from the program operated by the US Central Intelligence Agency in which targeted killings are carried out from unmanned aerial vehicles or drones. “It is clear that many hundreds of people have been killed, and that this number includes some innocent civilians. Because the program remains shrouded in official secrecy, the international community does not know when and where the CIA is authorized to kill, the criteria for individuals who may be killed, how it ensures killings are legal, and what follow-up there is when civilians are illegally killed.” The UN Special Rapporteur stressed that “in a situation in which there is no disclosure of who has been killed, for what reason, and whether innocent civilians have died, the legal principle of international accountability is, by definition, comprehensively violated.”

Importantly, Alston contrasts the CIA program in this regard with “the well-established practice of the US Department of Defense. While it is by no means perfect, the US military has a relatively public accountability process, as demonstrated earlier this week by its report on the incident in Uruzgan, Afghanistan, in which at least 23 civilians were killed based on erroneous intelligence from surveillance drone operators. Intelligence agencies, which by definition are determined to remain unaccountable except to their own paymasters, have no place in running programs that kill people in other countries.”

A final note for now. The report provides, among other things, the clearest, most concise (and usefully footnoted) summary of the complex and overlapping areas of law governing targeted killing I have yet seen – addressing law of war, self-defense, and international human rights law issues. I’ll be most interested to hear from Ken, among others, on what if anything the report gets wrong in this respect. On first glance, it looks awfully solid to me.
Posted 12:35 PM by Deborah Pearlstein [link]

Is Thompkins About Shahzad?

Steve Vladeck

This morning, the Supreme Court held in Berghuis v. Thompkins that a suspect can waive his Miranda rights by failing to affirmatively invoke his right to remain silent (even if, as Justice Sotomayor's dissent suggests, such a statement would be self-defeating). Thus, when Thompkins answered questions asked hours (here, three) into an interrogation during which he had otherwise been silent, the introduction of those answers at trial did not violate Miranda.
Posted 5:18 PM by Steve Vladeck [link] (6) comments