The Rise and Demise of the Technology-Specific Approach to the First Amendment

Abstract:     
This article examines how analytical, technological, and doctrinal developments are forcing the courts to reconsider their media-specific approach to assessing the constitutionality of media regulation. In particular, it offers a comprehensive reevaluation of the continuing validity of the Broadcast Model of regulation, which contains features, such as licensing and direct content regulation, that normally would be considered paradigmatic violations of the First Amendment.

Specifically, the analysis assesses the theoretical coherence of the traditional justification for extending a lesser degree of First Amendment protection to broadcasting than to other media (i.e., the physical scarcity of the electromagnetic spectrum) as well as the alternative constitutional justification based on the supposed unique pervasiveness and accessibility of broadcasting announced in FCC v. Pacifica Foundation. In particular, I discuss how the scarcity doctrine in effect allows the culture of regulation that pervades broadcasting to become the constitutional justification for more regulation. The analytical weaknesses in the current constitutional analysis are exacerbated by the deployment of alternative transmission and filtering technologies that are undermining the empirical foundations of current doctrine. I also trace the weakening of the traditional justifications as a doctrinal matter, as evidenced by the recent reluctance of the courts and the FCC to place any reliance on them.

The article then offers a critique of recent proposals by Cass Sunstein and Owen Fiss that attempt to use civic republican principles to uphold the constitutionality of the Broadcast Model. My analysis yields three core criticisms: First, Fiss's and Sunstein's proposals fail to come to grips with autonomy as a free speech value. Second, their theories ultimately prove to be quite problematic from the standpoint of implementation. Third, their theories fail to offer any plausible explanation of how to overcome certain technological obstacles. Thus, even if one were to accept all of the arguments offered by Sunstein and Fiss, it remains difficult, if not impossible, to see how their theories would bring about the world that they seek. The article closes by exploring several possible explanations for the persistence of the media-specific approach to the First Amendment.

Accepted Paper Series