• Selected
• Entire List

Abstract:
American television and radio broadcasters are uniquely privileged among Federal Communications Commission (FCC) licensees. Exalted as public trustees by the 1934 Communications Act, broadcasters pay virtually nothing for the use of their channels of public radiofrequency spectrum, unlike many other FCC licensees who have paid billions of dollars for similar digital spectrum. Congress envisioned a social contract of sorts between broadcast licensees and the communities they served. In exchange for their free licenses, broadcast stations were charged with providing a platform for a free marketplace of ideas that would cultivate a democratically engaged and enlightened citizenry through the broadcasting of public interest programming.

Few, other than the broadcasters themselves, would dispute that this public trustee doctrine has been a dismal failure. In exchange for the tens of billions of dollars of advertising revenue generated by their licenses, commercial television and radio broadcasters air very little - and some air none - of the kinds of locally oriented public affairs, political, educational, and cultural programming traditionally considered public interest fare. Congress and the FCC have failed to correct the mismatch between the proven profit-making power of public trusteeship and its anemic returns for the American people. To the contrary, Congress and the FCC, captured by the broadcast industry they regulate, have continued to subsidize commercial broadcasters constructively by awarding them new lucrative digital channels at no cost to them, while lifting ownership concentration limits and eliminating or failing to enforce the few remaining public interest programming requirements.

This Article begins by surveying the history of the public trustee doctrine, its First Amendment contradictions, and the legislative and regulatory failures and frustrations that have bedeviled the pursuit of a "free marketplace of ideas" on the nation's airwaves. It then explores the First Amendment's public forum doctrine as an alternative justification for government regulation of the public spectrum, reasoning in favor of the government's proactive creation and maintenance of public speech fora. After examining the Internet both as a public forum and as the sort of free marketplace of ideas that the broadcast spectrum was expected - but failed - to create, this Article argues that an affirmative public forum doctrine supports a requirement that broadcasters subsidize broadband Internet access in low-income and underserved communities.

broadcasting regulation, communication, First Amendment, free speech, Internet, administrative law and regulation

Abstract:
Although they emerged seven decades apart, commercial broadcasting and the Internet were greeted with similar excited declarations of their potential to transform American democracy by hosting an electronic free marketplace of ideas that would inform and enlighten citizens and catalyze discussion on issues of public importance. The federal government played a central role in the initial development and proliferation of both technologies, but then assumed very different regulatory orientations to the two industries once they were commercialized. In broadcasting, the government took on an interventionist posture promoting civic republican First Amendment values by means of a variety of public interest programming requirements, justified by the public ownership and scarcity of broadcast spectrum. Technological, constitutional, regulatory and political constraints, however, conspired to render the broadcast public interest standard largely ineffective at realizing the democratic and expressive potential of the broadcast media.

In contrast to its proactive orientation towards broadcasting, the government shifted to a noninterventionist posture towards the Internet after having played a seminal role in its creation and popularization. While touting the Internet’s importance as a transformative democratic and expressive instrument, the government has preferred to rely on the commercial marketplace to optimize the Internet as a ubiquitous and vibrant platform of diverse and free democratic discussion, cultural expression, and social interaction.

The government’s deference to the commercial marketplace to realize the democratic and expressive potential of the Internet, and especially high-speed broadband, has not served the nation well. The United States continues to fall significantly behind other industrialized nations in the proliferation of broadband service that is universal, fast and inexpensive. Although expression abounds on the Internet, private censorship does too. There is very little public space online where the full complement of First Amendment protection applies, and very few local governments have interactive online presences. Whereas the Internet was hoped to bring citizens together for deliberative democratic exchange, there is much evidence that it atomizes attention, breeds civic disengagement, and fosters factionalism and polarization, while often undermining true deliberation in political discussion.

In light of these concerns, as well as the Internet’s emergence as a medium rivaling broadcasting in centrality and influence, this article argues that the federal government should adopt a much more proactive approach towards the Internet and broadband especially. It proposes that some of the principal goals valorized by the broadcast public interest standard - universal service, democratic engagement in a marketplace of ideas, diversity and localism - should serve as a template for affirmative government interventions designed to promote the Internet’s democratic and expressive potential while helping mitigate its harms. The article discusses a number of proposals to operationalize a broadband public interest standard, including direct subsidies for universal broadband service to underserved communities, support for public fora on local and state government websites as well as noncommercial locally oriented content, and a requirement for network neutrality. It concludes with a discussion of how such proposals would be consistent with the First Amendment, satisfying both the autonomy-rooted and civic republican conceptions of democracy, and avoiding the legislative, regulatory and administrative pitfalls of the broadcast public interest standard.

media, communications, First Amendment, Internet, television, radio, democracy, participation

Abstract:
In Changing Channels and Bridging Divides: The Failure and Redemption of American Broadcast Television Regulation Professor Varona analyzes how the Supreme Court, Congress and the FCC have defined the legal duties of commercial broadcasters throughout the maturation of the television industry. First, he shows how the public trustee doctrine has failed, with broadcasters today airing very little 'public interest' programming. Second, he examines how and why the FCC has failed to effectively elucidate and enforce the public trustee doctrine, focusing on the irreconcilable First Amendment and commercial tensions inherent in the public trustee doctrine since its inception and the 'capture' of the FCC and Congress itself by the broadcast industry and the conglomerates that control it. Finally, he discusses and critiques existing proposals for reform and then advance his own proposal, which would require television broadcasters to subsidize broadband Internet access for low-income and otherwise underserved households.

law, media, telecommunications, broadcasting, first amendment, administrative law

Abstract:
Professor Varona and Mr. Monks examine arguments for why and how the prohibition against discrimination because of sex in Title VII of the Civil Rights Act of 1964 should apply to anti-gay discrimination. They note that because homosexuality violates gender norms, lesbians and gay men face discrimination that usually takes the form of sex stereotyping or sexual harassment based on gender expression and nonconformity. Courts, however have almost always treated the actual or perceived homosexuality of the plaintiffs as disqualifying them from Title VII relief. Although gender nonconformity standing alone can garner Title VII relief, it typically is not protected when combined with perceived or actual homosexuality. The authors document how relief for lesbian and gay victims of employment discrimination under Title VII typically comes at the cost of closeting their sexual orientation, and settling for limited relief at best. In sexual harassment claims especially, gay plaintiffs are required to satisfy high evidentiary requirements for proving severity and harm, effectively precluding coverage of many forms of anti-gay discrimination. The authors conclude that because the predominant judicial view of gender nonconformity, and specifically Title VII's coverage of sex stereotyping, is excessively narrow, Congress should pass the Employment Non-Discrimination Act, which would explicitly prohibit public and private employment discrimination on the basis of sexual orientation discrimination as well as gender identity and expression.

employment discrimination, civil rights, gay and lesbian, gender identity

Abstract:
Professor Varona and Mr. Layton write about the impact United States v. Morrison will have on Congress's efforts to enact hate crimes laws. Specifically, they look at the 106th Congress's changes to the Local Law Enforcement Enhancement Act (LLEEA), which seeks to enable federal assistance and prosecution of hate motivated crimes perpetrated on gays, women, and the disabled. Morrison, which invalidated the federal civil remedy enacted as part of the Violence Against Women Act, presents a hurdle to these efforts by restricting Congress's Commerce Clause jurisdiction as well as its power under the Fourteenth Amendment. The authors detail how Morrison, along with United States v. Lopez and Flores v. City of Boerne, is indicative of a legal shift in congressional authority jurisprudence. The authors conclude with an argument supporting the constitutionality of LLEEA even under the shifting seas of Morrison.

Constitutional law, hate crimes, legislation, civil rights, gay and lesbian civil rights

Abstract:
Professor Varona analyzes the legal and political events of the year 2000 that most impacted the rights of women and gay, lesbian, bisexual and transgender Americans, including Bush v. Gore, United States v. Morrison, Boy Scouts of America v. Dale, Stenberg v. Carhart, and state and local legislative successes for women's and LGBT rights activists.

women's rights, sexual orientation, gay rights, politics