Re-Evaluating Media Regulation in a Media Environment of Nearly Unlimited Entertainment Programming and Ample Alternative Channels of Communication

Abstract

In addition to prominent constitutional theories relating to the importance of political speech, the Supreme Court on countless occasions has stated that political speech, or speech relating to the conduct of self-government, is the kind of speech with which the First Amendment is most concerned and should most protect. Under current First Amendment jurisprudence, however, not only do some constitutional doctrines fail to favor political speech, but at times political speech actually receives more disadvantageous treatment than does indecent commercial media entertainment. This Essay examines some ways in which this has occurred, along with the reasons for such disadvantageous treatment. Such an examination will involve the legacy of First Amendment doctrines born nearly a century ago and under a much different media environment than what exists today. Using the marketplace metaphor that was first articulated by Justice Holmes nine decades ago in his dissent in Abrams v. United States, this Essay argues that the Court has articulated First Amendment doctrines that end up greatly benefiting nonpolitical media entertainment - sometimes at the expense of political speech.

Current First Amendment doctrines can give the illusion, by protecting the vilest and most vulgar of speech, that speech in general is overly protected, which in turn results in a backlash that can spill over to political speech.

Keywords: free speech, First Amendment, political speech, indecent, media, entertainment, censorship

JEL Classification: K1, K3, K10, K19, K30, K39