Liberating 'Red Lion' from the Glass Menagerie of Free Speech Jurisprudence

16 Pages Posted: 17 Apr 2008  

James Ming Chen

Michigan State University - College of Law

Date Written: 2002

Abstract

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), decreed a medium-specific approach to first amendment controversies involving radio and broadcast television. Although the Supreme Court has never applied Red Lion's scarcity rationale to any medium besides broadcasting, the Court has frequently resolved free speech disputes by drawing analogies to broadcasting.

Red Lion declared that courts should condition constitutional protection on the technological and economic characteristics of a regulated communications conduit. It specifically concluded that broadcasting, as a conduit, merited less rigorous first amendment review because of scarcity, the historic extent of governmental involvement in broadcasting, and the ongoing public interest in access to this intensely regulated medium. Most judicial and academic objections to Red Lion have addressed scarcity. This article takes aim instead at Red Lion's prescription of conduit-specific first amendment review, urging close scrutiny of rules that putatively regulate the economic aspects of communications technology but ultimately constrict the content of mass communications.

Keywords: Red Lion Broadcasting, FCC, first amendment, broadcasting, telecommunications, scarcity

JEL Classification: K2, K22, K23

Suggested Citation

Chen, James Ming, Liberating 'Red Lion' from the Glass Menagerie of Free Speech Jurisprudence (2002). Journal of Telecommunications and High Technology Law, Vol. 1, 2002. Available at SSRN: https://ssrn.com/abstract=1121043

James Ming Chen (Contact Author)

Michigan State University - College of Law ( email )

318 Law College Building
East Lansing, MI 48824-1300
United States

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