The First Amendment and Measuring Media Diversity: Constitutional Principles and Regulatory Challenges
28 Pages Posted: 25 May 2006
The Federal Communications Commission (FCC) limits the number of media outlets one entity can control in either national or local media markets and has restricted one entity from owning several outlets in different types of media. The FCC has justified its regulations as necessary to promote diversity of viewpoint. While the Supreme Court for decades has upheld these restrictions against First Amendment challenge, recent cases have been less receptive, using stricter scrutiny or demanding more empirical support.
The problems the FCC's regulations face in court, however, stem as well from the FCC's inability to rely on meaningful metrics for its putative regulatory goal, viewpoint diversity. Rather than attempt to quantify or identify the number of viewpoints and ideas in a given media market, the FCC asserts that diversity of ownership is a proxy for diversity of viewpoint. The FCC, therefore, counts heads to determine if there is enough diversity - a meaningless inquiry when not tethered to a measurement of diversity of media content.
This article proposes empirical and normative approaches to strengthen media ownership regulation. Empirically, the FCC could tackle the difficult question of relating viewpoint diversity in media content to market structure, a task its rulemaking has largely avoided. Normatively, in a de facto shift of the burden of persuasion, the FCC could argue from ethical/political grounds for decentralized ownership and maximize it until economic data clearly point to economic inefficiencies. In this way, a normative preference for decentralized ownership would guide regulatory action, and the FCC's line-drawing would concern economic efficiency - a more easily defined term than the elusive diversity concept.
Keywords: First Amendment, media regulation, media diversity, Federal Communications Commission
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