Free Speech in the New Media

Thomas Gibbons, Thomas Gibbons

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351935807
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

This volume deals with questions of political and constitutional principle and theory that affect the law and regulation of content in new media that are based on digital technology. In the light of convergence between different forms of communication, it examines whether the justifications for government intervention in traditional analogue broadcasting and programme delivery continue to be persuasive. The essays examine in general whether new approaches to freedom of expression are required in the digital era and whether there is a continued role for public service broadcasting or its equivalent. They also explore content standards in more detail, discussing arguments for and against regulation in the areas of beliefs, indecency and advertising and whether there is a case for the European Union's measures to secure "Television without Frontiers".

Part I
Free Speech and Converged Media

[1]
Freedom of the Press and Public Access: Toward a Theory of Partial Regulation of the Mass Media

Lee C. Bollinger, Jr.^*†

During the past half century there have existed in this country two opposing constitutional traditions regarding the press. On the one hand, the Supreme Court has accorded the print media virtually complete constitutional protection from attempts by government to impose affirmative controls such as access regulation. On the other hand, the Court has held affirmative regulation of the broadcast media to be constitutionally permissible, and has even suggested that it may be constitutionally compelled. In interpreting the first amendment, the Court in one context has insisted on the historical right of the editor to be free from government scrutiny, but in the other it has minimized the news director’s freedom to engage in “unlimited private censorship”¹ and has exalted the “right of the public to receive suitable access to social, political, aesthetic, moral and other ideas and experiences.”² The opinions in each area stand apart, carefully preserved through a distinctive core of precedent, analysis and idiom

The purpose of this article is to examine critically these decisions and to explore whether there is any rational basis for limiting to one sector of the media the legislature’s power to impose access regulation.³ The article takes the position that the Court has pursued the right path for the wrong reasons. There is a powerful rationality underlying the current decision to restrict regulatory authority to broadcasting, but it is not, as is commonly supposed, that broadcasting is somehow different in principle from the print media and that it therefore is not deserving of equivalent first amendment treatment. As will be discussed in section I, the Court’s attempt to distinguish broadcasting on the basis of its dependence on scarce resources (the electromagnetic spectrum) is unpersuasive; moreover, whatever validity the distinction may once have had is now being undercut by the advance of new technology in the form of cable television.⁴ Further, other possible points of distinction that may be raised, such as the broadcasting industry’s high level of concentration and television’s purported special impact on its viewers, do not presently justify the different first amendment treatment. For reasons that will be developed in section II, access regulation has been treated differently in the context of broadcasting than it has in that of the print media largely because we have long assumed that in some undefined way broadcasting is, in fact, different. Rather than isolate broadcasting from our constitutional traditions, however, the Court should now acknowledge that for first amendment purposes broadcasting is not fundamentally different from the print media. Such an admission would not compel the Court either to permit access regulation throughout the press or to disallow it entirely. There is, we shall see, an alternative solution.

There has recently been a dramatic outpouring of articles addressing the issues associated with access regulation in the press.⁵ This literature demonstrates the dual constitutional nature of regulation: It can be at once a valuable, indeed essential, means of redressing the serious inequality in speech opportunities that exists today within the mass media and a dangerous deviation from our historical commitment to a free and unfettered press. The problem, therefore, is formulating a constitutional approach that captures the benefits of access regulation yet still minimizes its potential excesses. These first amendment goals, it will be argued, can be achieved by permitting legislative access regulation but sharply restricting it to only one segment of the mass media, leaving the choice of the area of regulation to Congress. Without adequately explaining or perhaps even comprehending its decisions, the Supreme Court has actually reached the constitutionally correct result in refusing to permit government regulation of the print media, but has done this only because Congress had already chosen to regulate the broadcast media.

I. The First Amendment as Portmanteau

In 1974, when the Court considered the constitutionality of access regulation in the print media,⁶ it was able to turn to a longstanding constitutional tradition. Our society has generally been committed to the notion that, with a few narrow exceptions, the government should stay out of the business of overseeing editorial discretion in the press.⁷ Our historical experience has given rise to a hearty skepticism of the ability of officials to decide, for example, what is “fair” political debate. This skepticism recoguizes the corruptibility of government and its seemingly innate desire to maguify whatever power over the press it might possess at a given time. The longstanding conception of the press as a “fourth branch” of government has seemed antithetical to the idea that the state should have power to affect its content Even the most ardent advocates of access legislation have never sought to claim historical respectability for their proposals; theirs is the argument of changed circumstances.⁸

At issue in Miami Herald Publishing Co. v. Tomillo⁹ was a Florida statute requiring a newspaper in the state to publish without cost the reply of any candidate criticized in its columns.¹⁰ In a relatively brief and conclusory opinion, the Court surveyed prior print media cases and found implicit in them the proposition that “any … compulsion [by the government on newspapers] to publish that which ‘reason’ tells them should not be published is unconstitutional.”¹¹ Access regulation violates that principle because it intrudes “into the function of editors”¹² and because, as the Court assumed, although there was no evidence on the point, it also creates an impermissible risk of a chilling effect on news content.¹³

What seems so remarkable about the unanimous Miami Herald opinion is the complete absence of any reference to the Court’s unanimous decision five years earlier in Red Lion Broadcasting Co. v. FCC.¹⁴ In that case, the Court upheld two component regulations of the Federal Communications Commission’s “fairness doctrine,”¹⁵ one of which, the so-called personal attack rule,¹⁶ is almost identical in substance to the Florida statute declared unconstitutional in Miami Herald. That omission, however, is no more surprising than the absence of any discussion in Red Lion of the cases in which the Court expressed great concern about the risks attending government regulation of the print media.

Instead of scrutinizing government regulation of broadcasting in light of the print media cases and our traditional reservations about government oversight of the press, the Court in Red Lion regarded broadcasting as a “unique medium”¹⁷ that needed a distinctive first amendment analysis. Specifically, the Court plunged ahead to assert for the first time the incompatibility of a concentrated medium, which is how it characterized broadcasting, with the first amendment goals expressed in the Holmesian metaphor of the “market-place of ideas.”¹⁸ The marketplace theme as developed in Red Lion states that when, as now, the channels of communication are effectively controlled by a few interests, there is the risk that many important voices will be excluded and that, as a consequence, the public will be seriously hampered in its efforts to conduct its affairs wisely. Unless the government intervenes to insure the widespread availability of opportunities for expression within the mass media, the objectives of the first amendment may be frustrated. Thus, the Court reasoned in a frequently quoted passage:

Nor can we say that it is inconsistent with the First Amendment goal of producing an informed public capable of conducting its own affairs to require a broadcaster to permit answers to personal attacks occurring in the course of discussing controversial issues, or to require that the political opponents of those endorsed by the station be given a chance to communicate with the public. Otherwise, station owners and a few networks would have unfettered power to make time available only to the highest bidders, to communicate only their views on public issues, people and candidates, and to permit on the air only those with whom they agreed. There is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all.¹⁹

These constitutional principles are an elaboration of the “scarcity doctrine” first articulated in National Broadcasting Co. v. United States (NBC)²⁰ in which Justice Frankfurter argued that because radio was “inherently … not available to all” it was “unique” and therefore “subject to governmental regulation.”²¹ Needless to say, the opinion in Red Lion reflects a far different attitude toward the relationship between editors and government than that in Miami Herald.

A comparison of Red Lion and Miami Herald, however, reveals more than different first amendment motifs. The tone and attitude manifested in these cases toward the proper limits of governmental intervention are entirely dissimilar. In Miami Herald, the Court clearly and firmly opposed any further experimentation with access legislation, while in Red Lion, the Court acted as if it were reviewing a decision of an administrative agency where great weight had to be paid to the agency’s expertise in dealing with a “new technology of communication.” Illustratively, the Court in Red Lion responded to the broadcasters’ claim that the right-of-reply regulations created an impermissible chilling effect by displaying deference toward the FCC’s determination that the possibility of such an effect was “at best speculative.”²² This approach is in sharp contrast to the Court’s later assertion in Miami Herald that access regulation “inescapably ‘dampens the vigor and limits the variety of public debate.’”²³

An even more significant example of the Court’s leniency towards governmental experimentation with access regulation in broadcasting is the Court’s response in Red Lion to the broadcasters’ claim that, ‘although there once might have been technological scarcity, the Situation had changed significantly.²⁴ The broadcasters’ argnment was hardly frivolous. The development of the UHF (ultra high frequency) portion of the spectrum had greatly expanded the total number of available channels, and when the Court considered the issue, a significant number were (and continue to be) unused.²⁵ On several occasions, moreover, the FCC had denied a license to a single applicant for a particular VHF (very high frequency) frequency because the applicant had failed to meet the Commission’s programming requirements or because granting the license would have had an adverse economic impact on existing stations in the community.²⁶ In light of these facts, the broadcasters surely might have expected a Court concerned with freedom of the press to limit carefully the government’s exercise of regulation to those situations consistent with the constitutional rationale adopted in NBC—that is, to instances where there was truly “physical scarcity.”

This was not, however, the Red Lion Court’s focu...