The Needle and the Damage Done: The Pervasive Presence of Obsolete Mass Media Audience Models in First Amendment Doctrine

Abstract

Antiquated mass communications theories, such as the Hypodermic Needle Model of direct mass media effects, played a significant role in the Court's creation of a two-tier First Amendment doctrine giving less protection to broadcast media than to print media in cases such as Federal Communications Commission v. Pacifica (the George Carlin seven dirty words case). That doctrine is based on the belief that broadcasting's pervasive presence, coupled with assumptions that the broadcasting audience is monolithic, passive, and captive, make broadcasting capable of dangerous, propaganda-like direct effects upon its audience. Similar arguments have more recently been advanced regarding Internet content regulation, and have been forestalled only because of the Court's conclusion that the Internet was more like a newspaper than a television - a conclusion which may have been defensible in 1997 but which no longer reflects reality. But while these assumptions about mass media effects and audiences continue to pervade the law, they were long ago discredited by social scientists who actually perform empirical research on these questions. The fear of direct effects was dispelled and replaced with more complex understandings of how social factors mediate media effects. Modern research, especially that gathered by adherents of the Uses and Gratifications approach to media research, depicts active and purposeful patterns of mass media consumption.

These social science findings undermine the pervasive presence rationale that currently sustains content regulation of broadcasting and harmonize with traditional, liberal approaches to free speech as manifested in the Court's treatment of print media and (so far) the Internet.

Keywords: First Amendment, Broadcasting, Mass Media Effects, Direct Effects, Hypodermic Needle Model, Uses and Gratifications, Content Regulation, Pacifica, Tornillo, Red Lion