Balkinization  

Monday, June 07, 2010

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.

Comments:

The problem isn't that scarcity is never relevant. The problem is when it is used to justify government involvement in decisions about broadcasting content.

Scarcity makes sense as a rationale to allow licensing of the airwaves, which would be anathema in the print or internet realms. But campaign finance, equal time, children's television, indecency, and other content restrictions should all be unconstitutional. Whoever gets the license should be able to broadcast whatever they want. If that means no children's television, well, the constitution doesn't permit the government to override the viewing preferences of americans and force them to watch something they don't want to watch.
 

Random notes:

Kagan's talk emphasized at its outset that it was an academic, theoretical review, as distinct from a policy statement. I especially appreciated the closing checklist point, "wait and see", which she offered as one meritorious approach.

There are now hundreds of millions of online individual and group publishing websites. Internet has become a technology which circumvents the Maxwell radius factor underlying broadcast regulations. Kagan's talk underlined the new ubiquity feature of online publishing.

The pace of technological innovation remains slow.

Spectrum auctions continue to enjoy popularity in the business world.

Governments which reserve select ranges of spectrum for themselves and their agencies and armed forces are slow to relinquish those territorial limits.
 

We disagree there--I don't think courts should strike down the rules I discussed in the post. I didn't defend indecency rules (which, as I noted, do not rest on scarcity), but you and I have a disagreement on whether children's TV rules, reasonable political access, and probably some campaign finance rules. Not on media ownership limits I assume?
 

My last comment responded to Dilan.

My thoughts regarding John are this:

I don't mean to accuse Kagan of opposing media ownership limits, children's TV rules, etc. I mean to use her sentiment--which I assume is shared by many scholars--as a starting point for inquiry.

I agree that governments likely inefficiently allocate spectrum to their own uses.

I don't oppose spectrum auctions or even stronger property rights for some spectrum license. But I generally support a mix--some auctions, some assignments without auctions (today, public broadcasting is exempt form auctions, as is international satellite), as well as increased emphasis on unlicensed.

Auctions are popular partly because governments raise money instantly with auctions, while unlicensed or public uses would raise money later (through taxes).

And I agree to some extent on the wait and see approach, as I suggest at the end.

(Although my main thought is I'm glad someone read the post and made thoughtful comments, a thought re Dilan as well.)
 

Thanks for the quick, substantive response.

My problem is not that there isn't scarcity-- there is-- but that the government will use scarcity as an excuse to determine content, a power that we fear in any other context.

So no, I don't think that rules regarding size or ownership are unconstitutional because they don't go to content, any more than it would be unconstitutional to apply the sherman anti-trust act to google or rupert murdoch if they violated it. It would, however, be unconstitutional to tell murdoch that he had to publish educational content that his readers would not be interested in, or that political candidates could not spend lawfully-raised or self-financed monies to place ads in support of their candidacies in his papers. I see no reason why broadcasting should be subject to government control of its content any more than any other media can be.
 

"the constitution doesn't permit the government to override the viewing preferences of Americans and force them to watch something they don't want to watch"

Who is forcing people to watch anything? If anything, putting aside demand developing when stuff is there, at times profit motives keep stuff that some people like off the air.

The Constitution also doesn't require the government to license the airwaves. The public airwaves seems somewhat akin to a limited public forum. When private parties control such fora, the government can put in some limits, like in respect to malls.

Indecency limits tend to be discriminatory value laden content/viewpoint based. No go there. But, I won't throw all the baby out with the bathwater. The "scarcity" rationale is a bit out of date all the same.
 

My mall comment, being a bit vague, references those localities that do not let malls completely to wall off speech. The US Supreme Court has noted this is not required by the First Amendment, but it is also not prohibited as an infringement of property rights. I reckon a mall owner might want only some speech allowed, a neutral provision requiring all of one type of speech (ala open comer campaign ads regulations) some violation of his/her rights.

The comparison only goes so far, obviously. But, I do think the public airwaves is a type of public forum. Without licensing, the general public would have unlimited access. Licensing limits use because the alternative is messy. But, there should be a trade-off, since it is still is the public airwaves.

This makes it different -- in some ways -- from a newspaper.
 

Who is forcing people to watch anything? If anything, putting aside demand developing when stuff is there, at times profit motives keep stuff that some people like off the air.

In other media, we don't consider this a problem-- at least not one we think the government has the power to solve by dictating the content of speech. If a federal bureaucrat had decided that what America's children needed was a special section in every newspaper full of educational content, and had imposed such a mandate, it would have been struck down almost summarily by the courts, and rightfully so. The question is what about broadcasting justifies granting the government the awesome power of the censor?

The Constitution also doesn't require the government to license the airwaves. The public airwaves seems somewhat akin to a limited public forum. When private parties control such fora, the government can put in some limits, like in respect to malls.

I am not aware of ANY First Amendment doctrine that allows the government to dictate the CONTENT o speech that goes on in malls. Yes, the government can enact time, place, and manner restrictions, and private mall owners can ban speech entirely, but under prevailing Supreme Court doctrine, content-based speech regulations are prohibited in limited public fora. (Even in non-public fora, government is not permitted to impose regulations based on viewpoint.)

I don't think there's much more behind these sorts of laws except "we can reach a heck of a lot of children with our educational programming if we can commandeer the airwaves". But there's no exception in the First Amendment just because you think that government forcing people to speak will benefit society.

You know what IS constitutional? PBS, or the Voice of America. If the government operates the station (or funds a non-profit to do so), the government can influence the content.
 

My mall comment, being a bit vague, references those localities that do not let malls completely to wall off speech. The US Supreme Court has noted this is not required by the First Amendment, but it is also not prohibited as an infringement of property rights.

All PruneYard allows government to do is tell the mall owners that they have to allow speech. It has nothing to do with content.

If one were to analogize it to broadcasting, perhaps you could say that a regulation that required a licensee to take an advertisement from anyone who wished to pay for one is constitutional, or even a regulation that required that broadcasters set aside time for candidate's debates or to air viewpoints selected at random from the community.

Even that analogy, however, I would argue is inappropriate. The reason why it's OK to force the mall to allow speakers is because the mall is essentially a privatized form of public space, where speakers would traditionally be allowed to speak. Broadcast stations, in contrast, are private speakers themselves. It's much, much worse to tell a broadcaster that he or she has to air something that he or she does not want to air (and thus that he or she must convey a message that he or she may disagree with) than it is to tell a mall operator, who obviously isn't endorsing speakers, that they have to let all of them in without regard to viewpoint.

In dictatorships, the media is often required to carry the messages of the ruling party / government. I don't see how that is unconstitutional if a mandate to carry educational programming is constitutional. And that's simply not analogous to speech in a mall.
 

I am learning a lot from all this.

I think I am agreeing with Dilan in general when I say this--government should be forbidden from censoring content or from requiring particular messages.

I think we would disagree on exactly what censorship would be (but I doubt the disagreement would be large regarding broadcasters' speech).

The disagreement would be larger regarding the second part of my sentence: requiring particular messages. I have phrased this more narrowly than I suspect you would. I don't see as big a problem with requiring particular subject-matter, notably children's programming or (broadly) political content.

I do have a problem with the government requiring particular political viewpoints.

On broadcasting, there are some economic reasons to expect less children's content: the children's audiences are very small, as a 3 year old and a 7 year old watch different programming. This splinters the audience. If the government determined that it wanted to subsidize and provide children's programming, should that be considered a greater or lesser threat than merely requiring 3 hours a weak of children's programming, created by the broadcaster? I think I might have opened a can of worms with that question, but my main point with it is I don't think the *free speech* threat of requiring children's programming is very large. Viewpoints (or content) aren't being suppressed, political viewpoints not advanced, etc. No meaningful negative distortion of the marketplace of political ideas, etc.

And, to put the point more finely, children's TV rules may be a bad idea, but I don't think they're unconstitutional, requiring judges to strike them down. (Moreover, as it is, the rules are merely a license renewal processing guideline right now.)

At any rate, what I'd prefer most is universally available, high-speed, open Internet connections--where the government could have very little justification for any content-regulation. (To take a generally accepted exception: obscene videos involving actual children.)
 

I agree that requiring educational programming to be carried is less of a First Amendment burden then some other sorts of content-based rules.

But, that's not the same thing as saying that no First Amendment interests are implicated at all. Suppose, for instance, that a television station is owned by someone who believes very strongly that parents shouldn't let their children watch TV at all, even so-called "educational programming". Or someone who believes that educational programming is stuffy and believes that children benefit from being able to enjoy the type of TV that they like to watch, such as the sort of low-brow programming (for instance, old Tom and Jerry cartoons) that was on in the past. Or someone who believes in educational programming but not of the sort that the government believes to be most effective, e.g., someone who thinks that kids could benefit from watching "Jeopardy" or historical documentaries.

In other words, this sort of thing still substitute's the government's judgment for the programmer's judgment in terms of what the audience wants, needs, and desires.

And don't think there isn't, lurking in the background, the possibility of less benign rules. For instance, would you want the Texas Board of Education to develop standards for educational programming?
 

Dilan didn't really answer who is "forcing" anyone to watch something or my argument that the demand actually might be there.

Saying other media aren't required to encourage demand -- and I noted I thought the public airwaves was different -- doesn't tell me otherwise.

"All PruneYard allows government to do is tell the mall owners that they have to allow speech."

The government is not allowed to tell newspapers they must allow speech that they don't want to allow on their pages. The rules also tend to be content based in some fashion. For instance, certain categories of speech are required to be allowed. It is deemed a type of limited forum.

"The reason why it's OK to force the mall to allow speakers is because the mall is essentially a privatized form of public space, where speakers would traditionally be allowed to speak. Broadcast stations, in contrast, are private speakers themselves."

And, the reason we have some limits on the airwaves is that it is a public space too, licenses given to provide order but with the proviso that it it used at least somewhat in the public interest.

Malls are private speakers too, particularly commercially, but perhaps otherwise. A mall, for instance, can be gay friendly, or promote the war, or whatever. The owner(s) can promote their own message.

"censor"

This is the difference between a ban on indecency and a must carry provision. What is being "censored" when children programming is required? What viewpoint is being silenced?

"In dictatorships, the media is often required to carry the messages of the ruling party / government."

Child programming is a message? I think that is a bit of a stretch. Requiring acceptance of the ads of political challengers also sort of hurts your specter here.

But, dictatorships also, I guess, invades private property, and the malls don't like being required to have to allow speech too. Justice Marshall and others thought it was required under the federal constitution, so it's not exactly a matter free from controversy.
 

"this sort of thing still substitute's the government's judgment for the programmer's judgment in terms of what the audience wants, needs, and desires"

Or the corporate profit development team, let's be honest here. This is part of the point, really. And, government judgment is involved here in funding of universities and the arts too.

"For instance, would you want the Texas Board of Education to develop standards for educational programming?"

And, to those who ask if they want the government to "control" health care, we ask "you rather corporations"?

As a national matter, I would think the federal government would set certain general requirements, though localities might have some limited discretion.

And, what's the value of PBS, if it is not required to carry it on the local system? Requiring PBS instead of another UPN channel, that's censorship, isn't it?
 

This comment has been removed by the author.
 

And, the reason we have some limits on the airwaves is that it is a public space too, licenses given to provide order but with the proviso that it it used at least somewhat in the public interest.

The airwaves (i.e., the mall) may be public. But the STATIONS are like the stores-- private. PruneYard does NOT permit states to require that individual STORES within a mall tolerate speech within their spaces.

The argument "since the public owns the airwaves, we get to tell broadcasters what they have to say" is an argument that belongs in totalitarian dictatorships. It has no place in a country with a constitutional requirement of a free press.

Child programming is a message? I think that is a bit of a stretch.

You don't think so? Fine. Let's put the Texas Board of Education in charge of educational programming, then. Still think that it doesn't offend any First Amendment interests to compel broadcasters to carry it?

Or the corporate profit development team, let's be honest here. This is part of the point, really.

The "press" expressly referenced in the First Amendment were profit-making joint stock limited liability companies, in many instances. And that press had, and has, an absolute right to print or broadcast whatever it thinks its readers / viewers will buy.

If you don't like that, repeal the First Amendment. (Or fight media consolidation-- I agree that regulations against THAT are not content based.) Until then, however, you aren't allowed to use the government to impose your preferences over the choices of American viewers. The whole point of a free press is to prevent the government from using the media as a tool to prescribe orthodoxy.
 

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And that press had, and has, an absolute right to print or broadcast whatever it thinks its readers / viewers will buy.

Then why are there still defamation laws on the books?

Surely there are limits to the First Amendment's scope, even beyond the occasional theatrical "Fire!"

The whole point of a free press is to prevent the government from using the media as a tool to prescribe orthodoxy.

Fair enough, but can the Media use the media as a tool to prescribe orthodoxy? What happens when the lines between private business and government are blurred?

On a related note, if no content can be regulated, can we look forward to Marlboro ads on Nickelodeon?

Note that I'm not necessarily disagreeing with your position. I'm just having a hard time reconciling an extreme "no content can be controlled" position with the social realities in play. Even stalwart defenders of the Second Amendment (I'm thinking of Brett here) suggest they'd be amenable to regulations related to the individual possession and use of firearms, as long as they were sensible.

Are such sensible regulations impossible for free speech?
 

PMS:

Defamation laws and incitement statutes fall within recognized, narrow First Amendment exceptions. They are a far cry from the government requiring the owner of a television station to broadcast the government's official propaganda rather than what the station thinks its viewers want to watch.

Fair enough, but can the Media use the media as a tool to prescribe orthodoxy?

Yes. Or do you think the government has the constitutional power to require the editors of The Nation magazine to run conservative opinion pieces?

On a related note, if no content can be regulated, can we look forward to Marlboro ads on Nickelodeon?

No, because the tobacco companies agreed to restrict their own ads.

Are such sensible regulations impossible for free speech?

The standard is not whether regulations are "sensible", but whether they fit within a few narrow exceptions to the First Amendment right of broadcasters to broadcast whatever they wish to.
 

The airwaves (i.e., the mall) may be public. But the STATIONS are like the stores-- private. PruneYard does NOT permit states to require that individual STORES within a mall tolerate speech within their spaces.

Individual stores are like individual shows, but the general idea seems to be that stations (malls) have to certain child programming, equal time to political ads, etc. Still, megastores also can be regulated here, since one store very well can be the size of a mini public shopping area.

The argument "since the public owns the airwaves, we get to tell broadcasters what they have to say" is an argument that belongs in totalitarian dictatorships.

This talk of "totalitarian dictatorships" is not impressive. Requiring a few hours of children programming isn't the road to Stalin. The fact remains that the broadcasters are using public property to broadcast the message. It is not akin to a newspaper in that regard.

It has no place in a country with a constitutional requirement of a free press.

The license need not have been given or taken. Given it is part of the public airwaves, yes, it can come with some sort of strings.

The "press" expressly referenced in the First Amendment ...

Now you are going away from fear mongering about the Texas School Board to general principle. That's more convincing really.

The press controlled private presses. They didn't ask for public property and want total control of it. The airwaves are simply a complicated issue, especially in the early years when there were but a few stations.

Next up: religious freedom exists, so when they take limited public resources, any strings put on them is a violation of the 1A too.
 

Instead of a total edit, I'll just clarify one point:

"The airwaves (i.e., the mall) may be public."

The airwaves are like the land the malls are on. The public space. The actual malls and mall owners are like owners of stations and groups of stations.

As to individual stores, I'm unsure how far we can even take that. Can California allow stores to be required to not keep Republicans out?
 

Justice Black's "No law ... " 1st Amendment view seems to be accepted by some in this thread. While "money isn't speech," surely "money talks" as demonstrated by Citizens United. And it's okay to truly yell fire in a crowded theatre - or that the sky is falling? And everybody has a right to self defense every place and thus guns? Perhaps rights extremely applied can go wrong.
 

Joe:

You are simply completely out to lunch in your analogy. TV stations are PRIVATE. The AIRWAVES they broadcast over are public. So the AIRWAVES are the mall. The TV stations are the private stores who don't have to allow any speech they don't agree with.

And yes, you are a totalitarian. Telling a TV station owner that he must broadcast what the government ( such as the Texas school board) feels might best indoctrinate children is completely un-american and inconsistent with the values of free expression.

Further, conditioning licenses on the speakers saying what the government wants them to is the act of a banana republic. You are misusing the concept of public airwaves to advocate the repeal of the First Amendment.

Further, newspapers have always used the public streets. Apparently you believe that the government can condition their use of public streets on their agreement to publish government propaganda.
 

Excellent post. But I would argue that broadcast regulation does not depend for its justification on the scarcity doctrine or on the alternative you provide (though it is sturdy enough). See my post on this at http://www.religiousleftlaw.com/2010/06/no-need-for-scarcity.html

Steve Shiffrin
 

Excellent post. But I would argue that broadcast regulation does not depend for its justification on the scarcity doctrine or on the alternative you provide (though it is sturdy enough). See my post on this at http://www.religiousleftlaw.com/2010/06/no-need-for-scarcity.html

Steve Shiffrin
 

Fair enough, but can the Media use the media as a tool to prescribe orthodoxy?

Yes. Or do you think the government has the constitutional power to require the editors of The Nation magazine to run conservative opinion pieces?


I'm not sure. It seems the government is able to do lots of things that fall under your "narrow exceptions," especially as regards advertising.

Speaking of which, I don't buy the idea that Congress banned tobacco advertising, but the legitimacy of the law is entirely based upon the consent of the tobacco industry. Is the Do-not-call Registry a violation of corporate freedom of speech because it tells private companies who they may or may not speak to? Do state real estate commissions violate the rights of lenders when they regulate the content of advertisements and encourage them to submit ad copy for departmental approval?

Back to your question: I still don't think the Nation can be considered a broadcast, and I think broadcasting is different from print media--perhaps this is why it's called "broadcasting" and not "print media." It is received and consumed differently, and those processes of distribution and consumption should be considered.

For example, our living rooms are arranged around the television, not the magazine rack. We don't usually have magazine racks in several rooms. We don't have magazine racks that one can wear on the wrist or that fold out of the roof of our car. The exercise cycles in the cardio section of the gym are usually located near a magazine rack, but they're also pointed at a bank of--you guessed it-televisions. At night, do our children clamor to read a fine magazine before bed or do they want to watch more TV? (I know, YMMV.)

This focus on the TV as a central source of entertainment gives it a great deal more power within our lives than print media. We don't turn down invitations because Monday nights are when the Nation is available at the newsstand. The immediacy of the visual image or sound (versus the more contemplative nature that reading requires) also has a different effect upon a person. Would you prefer to read about an execution or watch one happen live on television?

Another silly hypothetical: if several companies bought up all the television stations and channels in the country (but none exceeded their legal limit) and they all decided to run a North Korean nightly news program instead of local/station variants, would that be acceptable? Would the people have any recourse other than PBS?
 

So because people watch a lot more TV and organize their lives around it, the government should get to dictate the content?

Not only is that not consistent with the First Amendment, it is also terrible policy. If TV is so damned influential, I certainly don't want the government deciding what goes on it. I trust TV viewers to decide what they think is good for them (and their children to watch), and having broadcasters not be under government control is a needed safety valve when whistleblowing is needed.
 

The WaPo editorial today (6/11/10) "More judicial activism on campaign finance rules" re: SCOTUS's recent action impacting public funds in Arizona elections shows how money talks under its Citizens United (5-4) view of the 1st Amendment.

By the way, what is this whistleblowing need that Dilan espouses in lieu of regulation? Is it compensatory whistleblowing or more like really weak self-regulation?
 

So because people watch a lot more TV and organize their lives around it, the government should get to dictate the content?

Well, the point I was trying to make was simply that broadcasting isn't print media, so it warrants consideration as a different medium, and it follows that regulations would be different, as well. There are regulations that apply to book-selling that don't apply to broadcasting by dint of differences in the technologies involved.

I don't share your belief that corporations necessarily make better choices than elected government. I also don't believe that corporations are necessarily more effective at whistle-blowing without mandatory children's programming/campaign finance rules/equal time rules than they are with it.

You sidestepped my advertising concerns. Government mandates additional content in language all the time (surgeon general's warnings, APR disclosures, side effect warnings)--is this unconstitutional? Do we really have to make the immediate jump to totalitarianism if we say the government has the right to dictate the content of advertisements?

If the government can dictate the text of advertisements (much more explicitly than general rules that require equal time for candidates), why can't it ask broadcasters to satisfy certain content requirements?
 

I don't share your belief that corporations necessarily make better choices than elected government.

I didn't make that claim.

However, I DO claim:

1. Whoever makes better choices, the First Amendment does not permit the government to make them.

2. The First Amendment is a bulwark against the government being involved in the content decisions of the media, and that's important because government domination of the media can lead to a dictatorial regime whereas corporate domination of the media does not.

3. I do trust VIEWERS to make the best decisions, and corporations, who like to make money, tend to show what the viewers want. Any time viewers are forced to watch something they don't want to watch by the government, their rights are being violated.
 

2. The First Amendment is a bulwark against the government being involved in the content decisions of the media,

Right, I understand the function of the First Amendment, but the bulwark seemingly doesn't apply to defamation, advertisements, enforcing must-carry regulations, or rating a TV program by its content. I'm trying to understand if/why you would let those kinds of things fly and still hold that broadcasters should "be able to broadcast whatever they want."

It doesn't seem as black and white as you make it out to be. The lawsuits between supplement manufacturers and the FDA over the language of health claims regarding selenium and Omega-3 fatty acids highlight the tension between public interest and commercial freedom of speech.

that's important because government domination of the media can lead to a dictatorial regime whereas corporate domination of the media does not.

Unless you're arguing that corporations are never complicit with government, both can lead to a dictatorial regime. Now, granted the result might end up looking more like Celebration, Florida than Blade Runner, but I still wouldn't underestimate corporate America's desire to rule.
 

Right, I understand the function of the First Amendment, but the bulwark seemingly doesn't apply to defamation, advertisements, enforcing must-carry regulations, or rating a TV program by its content.

This is wrong, doctrinally. The First Amendment does impose limits on defamation suits. (See Sullivan and its progeny.) It applies to commercial advertising. (See Virginia Board of Pharmacies and its progeny.) It applies to must-carry. (See Turner.) And TV ratings imposed on the government would not be constitutional; again, like tobacco ads, this is only constitutional because the networks agreed to it (which is why NBC, for the longest time, got away with not doing content ratings even though it screwed up the operation of the v-chip).

I'm trying to understand if/why you would let those kinds of things fly and still hold that broadcasters should "be able to broadcast whatever they want."

The central First Amendment doctrine is that government regulations based on CONTENT are subject to the strictest scrutiny. Other types of regulations are not.

The lawsuits between supplement manufacturers and the FDA over the language of health claims regarding selenium and Omega-3 fatty acids highlight the tension between public interest and commercial freedom of speech.

FALSE OR MISLEADING commercial speech receives no protection. However, we are not talking about false or misleading commercial speech, but rather fully protected artistic expression here.

Unless you're arguing that corporations are never complicit with government, both can lead to a dictatorial regime.

This is quite wrong, at least in the sense that while a dictatorship can happen without any media control at all, so long as a profit can be made broadcasting opposition messages, there will be someone who does it unless the government dictates broadcasting content. Thus, corporations have a built-in check against bad behavior that governments do not.
 

The exercising of rights can sometimes be wrong but protected by the First Amendment's speech clause. Consider today's (6/12/10) WaPo editorial "Mr. Cuccinelli [VA's AG] rightly sides with freedom of speech" that describes the situation that Cuccinelli refuses to support (that 48 states do support):

"Now comes another, more agonizing case involving bereaved families, the First Amendment and Mr. Cuccinelli. In this instance, he was asked to join a lawsuit, brought by the family of a Marine killed in Iraq, against a group of hateful religious zealots who picket service members' funerals. The picketers contend that American combat deaths are to be celebrated as God's punishment for America's tolerance of homosexuals. The case is to be heard by the Supreme Court."

Whistleblowing cannot drown out these "hateful religious zealots." Of course, many counter-protesters could show up at such funerals to drown out these zealots. But this does not improve the situation for the dead service member's family and friend as they grieve, does it? Perhaps SCOTUS might pick up on Justice Holmes' famous falsely yelling fire in a crowded theatre about the falsity of these zealots' concept of God's punishment to benefit bereaved families by suggesting the availability of massive counter-protesters (some of whom might wish to exercise their Second Amendment rights).

Justice Black's "No ... " view of the First Amendment must be addressed by SCOTUS to avoid situations such as this. Perhaps the "right to privacy" which is not specifically expressed in the Bill of Rights might be available.

Surely some Justice Black followers will come up with the Skokie Nazi march. The people in the neighborhood did not have to watch the parade. If they did, they could voice their objections under the First Amendment speech clause. But the bereaved not attending the funeral of their loved on is different. Lines are drawn for anti-abortion objectors at abortion clinics. Lines should be drawn for these funerals of military who died in the service of their country in Afghanistan, Iraq, elsewhere. Making the First Amendment speech clause ABSOLUTE leads to such zealots' activities that could be extended in many ways beyond funerals.
 

Jeffry Shulman's article "Free Speech at What Cost?: Snyder v. Phelps and Speech-Based Tort Liability" is available at SSRN via:

http://ssrn.com/abstract=1588236

relates to the WaPo editorial referenced in my preceding comment. The article closes with this:

"Matthew Snyder died in service to his country, but the injuries that took his life left a legacy of trauma for his family. The state's interest in protecting--at least for a moment of mourning--the peace and privacy of the Snyder family is a substantial one. The Fourth Circuit failed to protect that interest. It is now the Supreme Court's opportunity to decide whether our nation's profound commitment to the contentious discussion of public issues is also a license for egregiously intrusive and injurious speech."
 

However, we are not talking about false or misleading commercial speech, but rather fully protected artistic expression here.

Ah, well, if we're only talking about fully protected artistic expression, then there's really no argument. I had thought you were making a much broader point about all restrictions of content being unconstitutional. If you meant to say that some restrictions ARE constitutional but restrictions of fully protected artistic expression are not, then I'm not really sure what we were arguing about.
 

If you meant to say that some restrictions ARE constitutional but restrictions of fully protected artistic expression are not, then I'm not really sure what we were arguing about.

The decision to air, or not to air, so-called "educational programming" that meets the approval of the government concerns fully protected artistic expression.
 

I Googled:

" ... fully protected artistic expression"

and could not come up with a meaningful definition. Is it something like "knowing pornography when I see it"? How does "artistic" differ from "political" or "commercial"? Can there be combinations to provide full protection? And should such protection extend beyond media, such as picketing funerals of combat veterans? Sometimes a bright line results from people not being too bright.
 

See, e.g., Erznoznik v. City of Jacksonville.

But more generally, if you don't believe in free speech (and not believing the people or entities you don't like should have free speech rights is the same as not believing in free speech), you should lead a campaign to repeal the First Amendment. Until you succeed, however, it really doesn't matter if you think certain types of speech are "bad". Content-based distinctions are still presumptively unconstitutional.
 

Calling me "totalitarian" is hyperbole, so I'm not too upset for the delay, but here's a reply.

TV stations are PRIVATE. The AIRWAVES they broadcast over are public. So the AIRWAVES are the mall. The TV stations are the private stores who don't have to allow any speech they don't agree with.

The malls are "private" property too. Mall is developed space owned by private parties. The land as with the airwaves is "public" in various ways that can be regulated. The t.v. stations are using public airwaves. They aren't like newspapers that are not. So, sorry, your analogy is off.

And yes, you are a totalitarian. Telling a TV station owner that he must broadcast what the government ( such as the Texas school board) feels might best indoctrinate children is completely un-american and inconsistent with the values of free expression.

The t.v. station isn't forced to broadcast anything. No gun is being put to their heads. The station, however, is voluntarily getting a limited part of the broadcast spectrum, the public airwaves, and like those mall owners, they might have to accept some limited speech.

Further, conditioning licenses on the speakers saying what the government wants them to is the act of a banana republic. You are misusing the concept of public airwaves to advocate the repeal of the First Amendment.

The government doesn't have to give broadcast licenses out AT ALL. They are given a special monopoly here over limited public airwaves and return provided limited strings. Letting people use my property only if they do limited things is not "banana republic" territory.

Further, newspapers have always used the public streets.

What are you talking about? How are they using public streets? To sell newspapers? It simply is not the same thing as using the public airwaves for their very existence.

If some group always used a public park, 24 hours a day, and there was limited park land, yes, I would think some strings (such as, only used for cultural use or whatever) could be attached.

This hyperbole is beneath you.
 

I particularly like how something that might be an unjust limit of the use of a public resource is deemed a "repeal" of the First Amendment.

I think it pretty clear that not allowing people to purchase the works of D.H. Lawrence is a violation of the 1A. But, I would not say the 1A is "repealed" if such a law passed. It is "violated" etc.

The use of "banana republic" and "totalitarian" also is hyperbole of the first order. Early on, a community might have three (if that) stations to watch. But, if the quite valuable license to broadcast on one came with a string that 30 minutes of news would be required, under your lights it would be "totalitarian" to so require.

Such words really are cheapened by such overused. Again, it's not "only liberal news" or "only child programming sponsored by the Family Research Council," so we are not even talking about blatant viewpoint classifications that I would readily find problematic.

A bit more on stores. Stores are not always allowed carte blanche as to speech. First, often a large store owns some of the space where some speech related activities are allowed by the state.

Second, if a locality did not allow K-Mart to expel me if I discussed the election quietly with a friend while shopping, would it be "banana republic" territory too? I think not. I think some "only on just cause" requirement can be imposed, and various types of speech would not qualify.
 

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