Freedom of the press?

An analysis of broadcast regulation

Ryan M. Posey 4/21/12

Ryan M. Posey, Freedom of the press? An analysis of broadcast regulation

Table of Contents
1. Introduction A Guide to Broadcast Regulation ........................................................................... 2 a. Brief History of Broadcast Media ........................................................................................ 2 b. Where Broadcast Media is Today ....................................................................................... 6 2. Constitutional Schizophrenia Broadcast v. Print Media .......................................................... 10 a. Scarcity .............................................................................................................................. 10 b. Prior Grant Theory ........................................................................................................... 12 c. Impact Thesis .................................................................................................................... 13 d. Public Welfare ................................................................................................................... 14 3. Alternative Constitutional Theories ............................................................................................. 16 a. Partial Regulation Model .................................................................................................. 16 b. Marketplace Approach ..................................................................................................... 18 4. Discussion ...................................................................................................................................... 20 a. Why We Cant Let the Dinosaur Die ................................................................................. 20 b. Mixed Market Model ........................................................................................................ 21 5. Conclusion ..................................................................................................................................... 25

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Ryan M. Posey, Freedom of the press? An analysis of broadcast regulation I. Introduction A Guide to Broadcast Regulation For some time it has been generally accepted in a legal and social context that there are either inherent differences in the broadcast media when compared to other mass communication mediums. While what these differences actually are has proven generally difficult to articulate, this is the prevailing presumption. What is it then that really makes broadcast media different from other forms of media? Are there any significant benefits to treating broadcast media differently than others? These are questions that the Court has grappled with since broadcasts inception, with varying degrees of success and consistency. The Court has historically contextualized the debate as a matter of distinguishing broadcast from print, and may have backed itself into a corner where it is now defending a regulatory scheme whose constitutional basis for legitimacy has been eroded. This paper will analyze the Courts jurisprudence, evaluate the merits of various approaches to broadcast regulation and ultimately propose an alternative way to address these questions. The discussion begins with a history of how broadcast, as well as regulation of the media in general, has evolved before the Court in order to set the stage for an analysis of the present regulatory scheme. A. Brief History of Broadcast Media Foundational Elements A broadcast regulatory system has existed in the United States since the Radio Act of 1927 and the Communications Act of 1934.1 The Communications Act vested the authority to regulate broadcast under the Federal Communications Commission (FCC), as the public interest, convenience or necessity required.2 This gave the FCC power to install a licensing
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Ryan M. Posey, Freedom of the press? An analysis of broadcast regulation system by which it would allocate the limited spectrum available to potential broadcasters. Successful applicants for spectrum space, as well as those who wished to maintain their licenses thereafter, had to agree to a series of public controls on content. The most fundamental of these were the statutory equal time rule, and later developed fairness doctrine. At its most basic level the fairness doctrine required that broadcasters cover public issues and candidates, and to cover those issues in a fair and balanced fashion.3 This requirement served two distinct and important social goals. First, to insure that television as the potential dominant form of mass communication would present to the public controversial issues of public importance, preventing the airing of exclusively entertainment programming. Second, that the public would receive a fair and balanced coverage of these issues of public importance through the presentation of conflicting viewpoints.4 Eventually other subsidiary requirements branched off of this foundation, such as the personal attack rule5 and the political editorial rule.6 These rules began to resemble an imposed Hippocratic Oath of broadcasters, which expected broadcasters to responsibly exercise their power in shaping the national dialogue.7 The equal time rule required that broadcasters provide an equal opportunity to use their station to all legally qualified candidates for the same public office. In essence this did not require broadcasters to allow a candidate access to their station; however broadcasters who chose to would then be required to give other candidates that same opportunity.8 Only later did Congress add the reasonable access rule, which required broadcasters to provide candidates for federal elected offices access to a reasonable amount of time on behalf of their candidacy.9
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Ryan M. Posey, Freedom of the press? An analysis of broadcast regulation There have been other forms of broadcast regulations, including prohibiting deliberate distortion of the news, controlling indecent material and exercising control over format changes to maintain diversity of programming.10 How these regulations would be viewed if they were applied to traditional print instead of broadcast media is a major theme this paper discusses in Part II. The Crafting of Broadcast Regulation: Supreme Court Jurisprudence Understanding how the Supreme Court has reacted to First Amendment challenges to the Communications Act (and broadcast regulations in general) requires a look into the underlying themes inherent in these cases. Consistently the Court has upheld broadcast regulations on the theory that broadcasting is something different than other forms of media, and that those differences allow it to be reasonably regulated. The first constitutional challenge to the Communications Act came before the Supreme Court in 1943 with the case National Broadcasting Co. v. United States11. NBC brought a general objection to the regulatory system as a whole, as well as the particular rule imposing limits on the degree of autonomy a broadcaster could give up by joining a network. The opinion by Justice Frankfurter largely dismissed those claims, arguing that because more people want to broadcast than there is room to accommodate them in the spectrum, the available space must be allocated and the government is the most reasonable body to do so. The concept that with everyone on the air, nobody could be heard12 is ever present in the opinion, which established the root of most scarcity arguments that would follow in later cases.13

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Ryan M. Posey, Freedom of the press? An analysis of broadcast regulation What is more interesting however in NBC v. United States is Justice Frankfurters assertion that government is the most reasonable body to regulate broadcasting. Consider New York Times v. Sullivan14, where the Court famously reversed a libel judgment against the large newspaper. Justice Brennan in the majority opinion argued that the value of a free press is that it supports the democratic system of government, and that the censorial power is in the people over the Government, and not in the Government over the people.15 This laid the framework for how the Court would perceive government regulation of the printed press; the critical features of which were that the government is untrustworthy when it comes to regulating the public debate, while the press is the publics representative helping stand guard against the state.16 There is a strong presumption that the government will abuse any authority it possesses over the press and insistence that government be kept at some considerable distance from the press.17 This stark contrast between how the Court viewed the relationship between the government, the press and the people in NBC compared to Sullivan would rightfully lead to some confusion as to what these various actors roles in regards to shaping the public discussion should be. The Court made an attempt to answer this confusion in Red Lion Broadcasting Co. v. FCC18, distinguishing broadcast from print in a way that would theoretically fit the framework of both prior cases. Red Lion modernized and reaffirmed the scarcity rationale used in NBC. This works under the assumption that because there are differences in the characteristics of new media, differences in the First Amendment standards applied to them are justified. In addition to reaffirming the scarcity argument the Court also proposed the prior grant theory because broadcasters make use of a publicly owned resource they can be publicly controlled in the manner of its use.19 This same prior grant theory (also referred
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Ryan M. Posey, Freedom of the press? An analysis of broadcast regulation to as public domain thesis) was used in Columbia Broadcasting System, Inc. v. FCC20 where the Court reasserted that by using a valuable part of the public domain, broadcasters accepted the burden of enforceable public obligations. The distinction between print and broadcast media in Red Lion was made even clearer by contrast when the Court in Miami Herald Publishing Co. v. Tornillo21 invalidated regulations in print media nearly identical to those at issue for broadcast and permitted in Red Lion.22 Miami Herald rejected the listeners-rights model that was applied to broadcast in Red Lion, and stood as a bar against imposing broadcast-like obligations on the print media.23 The court added an additional piece to its arsenal for defending broadcast regulation in FCC v. Pacifica Foundation24. In Pacifica the Court analyzed an FCC policy prohibiting indecent broadcasting arising from the since immortalized Seven Dirty Words act by comedian George Carlin. The Court ruled five to four in favor of the FCC, and in so doing put an exclamation mark on a concept first articulated in Banzhaf v. FCC25: impact thesis. The impact thesis argument focused on the differences in impact on the viewer in broadcasts compared to print media (i.e. that broadcasts had a significantly greater impact on their audience than did printed media), and that this difference relatively independent of any scarcity argument can justify broadcast regulation26. Broadcast media was viewed by the Court as a uniquely pervasive presence in the lives of all Americans, and particularly in this case uniquely accessible to children, even those too young to read.27 B. Where Broadcast Media is Today Although the fairness doctrine has been repealed by the FCC, the foundations and perceptions of the broadcast media on which the doctrine was based persist. The broadcast

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Ryan M. Posey, Freedom of the press? An analysis of broadcast regulation media is still regulated much more strictly than its print counterpart, and by and large the same justifications are given for it. For example the recent FCC v. Fox28 cases have provided the Court with an opportunity to rethink its position and explore the underlying inconsistencies of its prior opinions, however the Court has and is expected to continue reaching the same conclusion: that the broadcast medium is constitutionally a second-class citizen compared to print. The Trusteeship Model Broadcasters are public trustees charged with the duty of fairly and impartially informing the public audience, as well as the unique responsibility to serve the public interest.29 While this perception may certainly be open to criticism as idealistic, it is undoubtedly a strong undercurrent in many of the Courts opinions reaffirming the governments right to regulate broadcast media (the sense that there is some unique duty of broadcasters to be held accountable by a force outside its audience for the quality/diversity of what it presents to that audience). This trusteeship approach, with government power to grant or revoke licenses based on content are perhaps most obviously stated in the Red Lion and CBS cases, along with the potential benefits of such a model. However this touches on a pillar of the trusteeship model, arguably even more important than an amorphous general understanding that the broadcast media should serve as a trustee of the public interest. In a trusteeship model, the editorial rights of broadcasters are subordinate to the publics right to hear.30 This is particularly evident in Red Lion; however the subordination of broadcasters First Amendment claims to the publics interest

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Ryan M. Posey, Freedom of the press? An analysis of broadcast regulation in access to ideas and information, and to rules designed to enhance that interest traces its lineage all the way back to NBC v. US.31 Justifications of the Trusteeship Model The most prevalent arguments in favor of the trusteeship model include prior grant theory, scarcity, public welfare and impact thesis. While most of these concepts have been addressed in an evolving historical context, it will be helpful to briefly identify each as an individual concept independent of the others. The intention is not to evaluate the strength or weakness of each argument, simply to identify for reference as they are discussed with more scrutiny in Part II. Scarcity the original justification for broadcast regulation in NBC v. US, the spectrum available to broadcast (or more appropriately the lack thereof in comparison to demand) either justifies or necessitates access regulation on broadcast regulation. This process is best controlled by the government, and is a distinguishing characteristic between broadcast and print media. Broadcasting frequencies are limited, but print is not. Prior grant theory broadcasters possess power in television not by their own efforts, but because the government has granted them the privilege of using a portion of the spectrum as trustees for the public.32 Subjecting broadcasters to a higher level of regulation is an acceptable quid pro quo that society expects in exchange for the broadcasters use of the public spectrum. This is the bootstrap argument that broadcasters enjoy the fruits of a prior government grant, which proposes that government should be able to regulated conduct on its licensees in order to guarantee quality service to the public.33

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Ryan M. Posey, Freedom of the press? An analysis of broadcast regulation Impact Thesis broadcast is uniquely pervasive and influential in American society.34 This impact not only distinguishes a characteristic of broadcast from the more traditional print media, but also reveals that broadcast is the more dangerous of the two mass communication forms if concentrated in the hands of a few. Public Welfare the government interest to protect the publics right of access to various viewpoints is substantial. Fundamentally the publics right of access, not the right of the broadcasters, is paramount.35 Important social goals such as establishing safe harbors for children in FCC v. Pacifica and protecting against the domination of broadcast media by a few people or organizations (or more importantly, viewpoints). Consider that the arguments made in justification of broadcast regulation by the Court almost universally depend on distinguishing broadcast from print media. It seems as if the Court views each characteristic difference as adding another layer of legitimacy behind its decision to treat print and broadcast fundamentally differently. Each of these arguments supporting the trusteeship model plays off of and supports each other, and are intertwined almost indistinguishably in many of the Courts opinions. However it is important to break these concepts down and understand them on an individual level, so that we can begin to analyze each on its own merit to evaluate if the Courts ultimate conclusions are more or less than the sum of its parts.

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Ryan M. Posey, Freedom of the press? An analysis of broadcast regulation II. Constitutional Schizophrenia Broadcast v. Print Media

It is a decisive fact about broadcast regulation that the primary rationales used to justify that system, which involved attempts to distinguish broadcast from print media, are illogical36 While broadcast regulation has always been a controversial topic, and often challenging for the Court to deal with in a consistent way, the foundations of the trusteeship model have come under increasing scrutiny in recent years. If broadcast regulation hinges on broadcast media being distinguished from print media (as the Court has seemed to suggest), a vital component of any analysis of the topic would be to evaluate if such differences actually exist. A. Scarcity Spectrum scarcity has traditionally been the cornerstone of the justification for abandoning the marketplace approach and reducing First Amendment protections for broadcasters.37 Believers in broadcast regulation are required to believe in scarcity because that is how the Court has framed the debate, and yet the concept has been surprisingly immune from any real judicial scrutiny.38 The general critique of this argument is that scarcity is not unique to broadcasting, a fact that has been largely ignored by the Court. The true difference between print and broadcast media (speaking purely in the context of scarcity) is not that one is scarce and the other is not. The difference is that broadcast spectrum is physically scarce while print media is economically scarce. Broadcast scarcity deals with the physical limitation on the amount of spectrum available for allocation. Print media scarcity deals with economic constraints that limit the number of potential competitors that may enter the marketplace. Economics in print media lead to a natural monopoly dynamic, where head on competition among newspapers in
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Ryan M. Posey, Freedom of the press? An analysis of broadcast regulation the same town eventually ends by merger, failure of one competitor or a joint operating agreement.39 A difference in the cause of the concentration would seem far less relevant from a First Amendment standpoint than the fact of concentration itself.40 The Court has not answered why what appears to be a similar phenomenon within the newspaper industry does not constitute an equally appropriate occasion for access regulation, as it has for broadcast regulation.41 The scarcity argument becomes even more vulnerable when the effect of modern compression technology on the amount of available spectrum is considered. Technology is an independent variable that makes scarcity a relative concept.42 While the broadcast medium has limitations, the ability to expand the amount of available broadcast spectrum (and implicitly, the inability to likewise expand the economically constrained newspaper concentration) weakens the Red Lion rationale. Another potential weakness of this argument is that it assumes that the scarcity solution outlined by Justice Frankfurter in NBC v. US is not just the best, but only reasonable solution. The Court seems surprisingly content with the idea that the only possible means of allocation is through government licensing, especially considering the Courts reluctance to impose such regulations on the print media. Other solutions such as a system of private property rights and market based broadcasting need to be fully considered, and the question should be if all else is equal why we should prefer government licensing over a free market system.43 Only those born during an era in which scarcity appeared real and permanent have been able consistently to avoid questioning the basis for their conclusions.44 Since scarcity is not

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Ryan M. Posey, Freedom of the press? An analysis of broadcast regulation unique to broadcasting, this argument is very weak when used to bolster a case for fundamental differences between print and broadcast. B. Prior grant theory The government owned spectrum argument on its face would seem more reasonable than any appeal on the basis of scarcity. It is certainly distinguishable from print media on this ground, which has no comparable counterpart in the United States (i.e. any real history of government licensing). The government ownership and prior grant theory does however suffer from two major flaws that likely prove to be fatal. First, the government owns many things which are ultimately given away on either a conditional or unconditional basis. However the government cannot ask for constitutional rights in return. The classic examples are welfare and government contracts; although the government has tried to condition benefits on the recipients promise to forego constitutional rights, the Court has emphatically rejected those attempts. The government may ask for many things as quid pro quo; however it behaves in an unconstitutional manner when it attempts to purchase constitutional rights with its handouts.45 That is essentially what the government is doing in regards to broadcast regulation, in return for being allocated government owned spectrum broadcasters are required to surrender First Amendment rights. Second, arguments for broadcast regulation using prior grant theory are weak due to its inherently cyclical nature. The logical path down which prior grant theory wishes to take us is that the government owns broadcast spectrum because it has the power to regulate its use, and the government has the power to regulate its use because it owns the broadcast spectrum.46 Even if it can be established that the chicken or the egg argument has validity,
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Ryan M. Posey, Freedom of the press? An analysis of broadcast regulation it is still vulnerable to the first point that ultimately the government cannot purchase constitutional rights. C. Impact Thesis The impact thesis argument is a trickier proposition for both sides. While many reasonable minds may disagree on the outcome, it would also seem reasonable to suggest that there is some difficult to articulate difference in the way society perceives broadcast and print media. However, the impact thesis justification for broadcast regulation is vulnerable on three main counts. First, the unique pervasiveness of broadcast and the dangers of concentration are again not seemingly unique. Consider that it would be highly unlikely for the Court to find a one-newspaper town to be uniquely pervaded in any substantial way.47 The analysis fails to explain, even assuming that broadcast is inherently more pervasive than print, why the concentration of newspapers is not also sufficiently problematic to the First Amendment to justify governmental regulation.48 Second, assuming that broadcasts are uniquely pervasive two modern factors reduce that pervasiveness; consumer choice and the establishment of internet and cable. The viewer always retains control over what enters the home, and at any time has the ability to change the channel.49 This argument may have been less persuasive during the time of Red Lion when the technology was new and the few available channels gave viewers limited options. However the increased amount of broadcast channels combined with the rapid growth of cable and internet choices make it a far more reasonable position today.

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Ryan M. Posey, Freedom of the press? An analysis of broadcast regulation Finally, the premise that regulation should be more acceptable the greater the impact on its audience seems to be inconsistent with the underlying purpose (i.e. to protect effective as well as ineffective speech) of the First Amendment.50 A reasonable argument could be made that if anything the more effective speech becomes (assuming same content) the more valuable and thus more deserving of protection under the First Amendment as a matter of public policy. D. Public Welfare If it is determined that broadcast and print media are constitutionally indistinguishable the only question that remains is whether there is a substantial rational interest in regulating broadcast in particular, and after balancing whether that interest outweighs the First Amendment concerns regarding access regulation. Over time there have been established recurring public interests in regulating broadcast, among them establishing safe harbors for children and preserving the quality of public discussion. This is the philosophical aspect of the debate of any media regulation discussion. The central issue is whether to value the rights of the speaker over those of the listener, or vice versa. The Court has held that, in broadcast media at least, the right to access of the public is paramount. The freedom of the press is protected in order to fulfill the publics right to know.51 With the focus on the listeners rather than the speakers, the state may play a moderating role to ensure the ideas essential to decision making are brought forward.52 Although government interests such as providing safe harbors for children are legitimate, they do not justify the current broad-scale trusteeship approach with the power to grant and revoke licenses based on content.53 There are a number of risks associated with access
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Ryan M. Posey, Freedom of the press? An analysis of broadcast regulation regulation to consider including risk of escalation of regulation, the chilling effect on the media and the risk of regulatory abuse by the government. Critics of the trusteeship model will cite these costs and propose that the methods of access regulation constitute a significant departure from our traditional constitutional notions concerning the need to maintain a distance between the government and the press, especially on matters of content.54 In addition to these concerns, critics taking a more libertarian approach would argue on a fundamental level that broadcasters own First Amendment rights are either equal to or outweigh the social interests of the listener.55 Analysis of the Trusteeship Model It is significant that the rationale of broadcastings uniqueness is so weak, in some forms intellectually indefensible and in another pointing to a phenomenon increasingly characteristic of the media as a whole56 In considering the justifications for the trusteeship model, ultimately the traditional arguments of scarcity, prior grant theory and impact thesis fail to provide a sufficient foundation on which to base broadcast regulation. That is not to say that there are no other legitimate reasons to or methods for regulating the broadcast media; any reasonable person could imagine a scenario in which this would be possible. However by intently framing the context of this debate as being a matter of distinguishing broadcast from print, the Court has found itself backed into a corner where it is now defending a regulatory scheme whose basis for legitimacy has been completely eroded. If the situation is perceived in this way, the next logical question to ask is what alternatives to the trusteeship model are available?

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Ryan M. Posey, Freedom of the press? An analysis of broadcast regulation III. Alternative Constitutional Theories Taking a step away from the trusteeship model and looking at the media as a whole, there are two main alternative ways to view the relationship between broadcast and print media; partial regulation and the marketplace approach. A. Partial Regulation Model Partial regulation refers to the phenomena in the trusteeship model where one sector of the media is regulated differently than the other. A major proponent of the partial regulation model is Lee C. Bollinger, whose work in this area is evident by the numerous citations to his book Images of a Free Press and article Freedom of the Press and Public Access that are scattered throughout this discussion. Bollinger takes the position that the Court has happened down the right road of broadcast regulation, albeit for the wrong reasons (i.e. that broadcast is constitutionally distinguishable from print media). The differences between print and broadcast in the manner in which they have been regulated have actually had a beneficial impact and should not be discarded, despite the Courts own irrational constitutional foundation.57 One of the advantages of the partial regulatory model is that the unregulated media provides an effective check against each of the costs of regulation. The partial regulatory model also provides a cushion against the pressures for and effects of harmful regulation. Another benefit is that it establishes a beneficial tension within the system whereas if a broadcaster may be wary to cover a story for fear of access obligations, a decision not to cover the story would become impossible once the print (unregulated) media began exploiting it.58 Finally, Bollinger asserts that the most important benefit of the partial
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Ryan M. Posey, Freedom of the press? An analysis of broadcast regulation regulation model is that is preserves a benchmark as the Court permits experimentation with regulation. While this is a creative perspective on the partial regulation model, it suffers from several deficiencies. The argument presumes the existence of access regulations on the press, as if to say a benefit of partial regulation is that it is better than total media regulation. It would not be difficult to imagine how this vote for me, at least Im not him argument would be less than persuasive to those who already believe that partial regulation has gone beyond First Amendment boundaries. Another major problem with Bollingers thesis is that it has no constitutional foundation. Bollingers own work spends a great deal of time cutting the legs from under the Courts constitutional rationale,59 yet somehow arrives at something akin to a constitutional harmless error doctrine.60 Without a more substantial interest than government tinkering with the First Amendment it would be difficult to place the regulatory experimentation on a balancing scale against broadcasters First Amendment rights, and not have the latter deemed a far more significant interest than the former. Also consider that the landscape of the media may have changed substantially enough as to render partial regulation an ill fitted remedy. Bollinger himself admits that a system of partial regulation may be foolish in a world which some foresee, of near total domination by the electronic medium.61 This day of domination by the electronic medium has come and gone. The final issue with Bollingers model is that even working on the assumption that a partial regulatory system is desirable, the current model is presented upside down. This is not the same as saying that there are no potential benefits to a partial regulatory model. Consider the proposition that broadcast has become the dominant form of media over print, and as unpleasant a reality as it may be the print media is becoming obsolete.62 In a partial
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Ryan M. Posey, Freedom of the press? An analysis of broadcast regulation regulatory system, shouldnt the dominant form of media relied upon by society for its daily access to issues of public controversy be the most protected/unregulated form? Bollinger makes the argument that regulations should be limited to new technologies, citing the psychological value of maintaining print as a benchmark.63 However this is inconsistent with the underlying purpose of the First Amendment, to preserve a free press accessible to the people.64 Overall the partial regulation model fails to save the trusteeship model from its deficiencies in constitutional rationales, even after it is placed under a different lens. The benefits of a partial regulation model are either 1) remedying a problem of its own creation or 2) available by means other than regulation. This brings the analysis of broadcast regulation to the other alternative media theory, the laissez-fare marketplace approach. B. Marketplace Approach A broadcasters First Amendment rights may differ from its listeners rights to receive and hear suitable expression, but once the call is close, deference to broadcaster judgment is preferable to having a government agency mediate conflicts between broadcasters and their listeners65 The marketplace approach replaces the perception of broadcasters as public trustees with the view that broadcasters should simply be marketplace participants.66 The social interests that have justified the trusteeship model do not call for government involvement, and those interests would be better accomplished through natural market forces. While this approach emphasizes the right of speech over the right to listen, it does not ignore the listener in its analysis and rejects the concept that only government regulations can protect this interest. The commercial broadcaster maximizes profits by providing the service it believes customers

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Ryan M. Posey, Freedom of the press? An analysis of broadcast regulation most desire, and is more likely to produce programing (based on its own self-interest) that best serves the people.67 Proponents of the marketplace approach cite two major advantages of this scheme over the trusteeship model. First, the marketplace approach does not conflict with the Red Lion decision. By basing content judgments on popular demand, broadcasters naturally enforce the paramount interests of listeners and viewers.68 Broadcasters best serve the public by responding to market forces rather than governmental directives, and emphasizing broadcaster discretion maximizes public welfare.69 Secondly, recognizing that broadcasters and print media are indistinguishable in terms of a constitutional analysis this approach gives broadcasters equal constitutional protection to the print media under the First Amendment. The marketplace approach does not escape its own share of criticism, focused on the assertion that without a government mediator implementation of the publics right to know is impossible.70 Critics of a market centric philosophy such as Judith Lichtenberg point out that nothing guarantees that all valuable information, ideas, theories, explanations, proposals, and points of view will find expression in the public forum71 under the marketplace approach. Another argument against this approach is that the pressures inherent in a market system may have just as much of a chilling effect as government regulations.72 The press may ignore issues that should be aired because they will not generate the desired revenue, or shy away from criticizing government policies/candidates that favor the economic interests of the press. There is no reason to presume that the state will be more likely than any other institution to use its power to ill effect,73 and some government regulation is a necessity to counteract concentrations of private power in a hypothetical free market. The realistic ramifications of deregulating the broadcast media would result in private concentrations of
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Ryan M. Posey, Freedom of the press? An analysis of broadcast regulation power, which would be just as dangerous to First Amendment values as any government regulation.74 The government has a duty to remedy this defect of a concentrated marketplace of ideas.75 Finally, the marketplace approach is criticized for focusing too narrowly on individualistic values and placing the rights of broadcasters over those of their listeners. Social values have been consistently prioritized by the Court in the context of broadcast. Under a democratic theory speech is highly valued because it enables the publics right to know, as opposed to the publics right to know being considered a beneficial side effect of free speech.76 IV. Discussion

Neither the trusteeship model, partial regulation nor the marketplace approach fully satisfies the constitutional challenges presented by broadcast regulation. The trusteeship model simply suffers from too many constitutional and rationale fallacies to survive. Partial regulation is substantially overbroad in its attempt to remedy minor problems and does not translate into a world dominated by the electronic medium.77 While theoretically the marketplace approach seems ideal, it may ignore practical problems with completely deregulating the market to complete private ownership. A. Why We Cant Let the Dinosaur Die The free press guarantee of the future is in danger of being tied to a tradition protecting a form of speech reduced in significance while a tradition of regulation will cover a form of speech that represents the primary means of communication78 The popularity of cable and burgeoning internet medium make it a tempting proposition to simply allow broadcast to be phased out, taking its difficult constitutional questions along with it as the new technologies render it obsolete. Bollinger asserts that this is nothing to be
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Ryan M. Posey, Freedom of the press? An analysis of broadcast regulation concerned about, as the country has never had a modern press free of government controls over content.79 As long as there is a partial regulatory scheme to preserve traditional print benchmarks, the slow absorption of new media into the First Amendment is of no great concern.80 This view is shortsighted because it presumes a future in which a new electronic medium is used as a regulatory laboratory while supplementing the free printed press. The analysis fails to take into account the inevitability that an electronic medium will supplant rather than supplement the printed press as the primary means of communication.81 The threat that broadcast will suddenly become a relevant, living analogy for the future of the press generally is more realistic today than it may have been in the past. The trend towards electronic mediums is only going to continue, and the tradition of broadcast regulation raises serious questions of whether a free press will survive in a rapidly approaching post-print world.82 The cycle of fearing the unknown; regulating new mediums and deregulating old mediums may have been tolerable when there was always a strong traditional form of free press to fall back on. However with the future of the gold standard newspapers and printed media in general in serious doubt, it is time to think differently in the application of the First Amendment to new forms of the press. B. Mixed Market Model The mixed market model is an attempt to remedy the ideals of the marketplace approach with the practical realities recognized by the partial regulatory schemes. Broadcasters would

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Ryan M. Posey, Freedom of the press? An analysis of broadcast regulation be given the same constitutional protections as print media; however the government would retain select regulatory powers. Broadcaster Discretion over Government Directives Where political issues are involved governments are notoriously partisan and unreliable.83 In determining and shaping the public discussion broadcasters are better suited to serve the public, answering to market forces rather than government directives on content. Broadcasters rights are equal to those of print media, and the rationale of cases such as Miami Herald (rejecting the listener-rights model for print media) should be applied to broadcast. The First Amendment directly protects the active speaker, and only indirectly protects the passive listener.84 The publics right to know is best achieved through the expansion of free speech to, and not government paternalism over the dominant communication mediums in society. This assertion recognizes that the value of all newly unregulated speech will not necessarily be improved. However erroneous statements are bound to be made, but the breathing space necessary for uninhibited debate protects them.85 Even falsity serves a function as it brings about the clear perception and livelier impression of truth, produced by its collision with error.86 For every Fox News channel there is an MSNBC, for reasons less about government regulations and more about the demands of the consumers. What is important is that the friction between competing ideologies exist and are active in the public debate. Whether this all occurs on the same broadcast or on multiple channels is irrelevant in modern society. The danger that one broadcaster presents a biased argument is lessened with modern mediums, as market forces will always mandate a free and open debate. The more balanced
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Ryan M. Posey, Freedom of the press? An analysis of broadcast regulation a broadcasts coverage the more credibility it establishes in the marketplace, and by association the more viewers it will obtain. Providing the public with a lively debate on the controversial issues of public importance is not only socially preferable, but also in the broadcasters economic interest. This theory is brought into question by the inclination of talk radio to be generally dominated by right-wing political ideology. Talk radio exemplifies the concern that left to the market broadcast may have similarly unequal coverage. However an alternative explanation is that as an antiquated form of media, talk radio does not represent the mainstream consumer demand; but is simply an available market for the desired expression of a much smaller sample size of listeners. Broadcast and cables market extends to a far more diverse consumer base, and they must provide a wider variety of coverage than talk radio in order to satisfy that markets demand and maximize their financial interest. Establishing a Safety Net Issues regarding deregulation of broadcast raised by the proponents of the partial regulatory schemes, such as private concentration of power and inadequate service to the public debate are legitimate concerns. Three important features will provide a buffer against unchecked deregulation. Although the government would not have control over content or licensing, it would be given the power to regulate the framework of broadcast. This would involve setting medium specific standards to prevent private concentration, such as creating a maximum amount of channels that a single entity or person could own. This would create a limited private market that would respond to market forces, while preventing any one viewpoint from dominating the public discussion. Controlling the boundaries inside which broadcasters compete with

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Ryan M. Posey, Freedom of the press? An analysis of broadcast regulation each other essentially gives the government the power to referee the game, without restricting the participants style of play. The government would also create an independent ratings agency that would monitor and rate programs purporting to carry informational content. These ratings would be based on standards such as equal time, variety of viewpoints, accuracy of reports, etc This agency would hold no direct power over broadcasters, but would serve as a consumer tool and check against unsatisfactory broadcast coverage. The agency would serve the government interest of protecting the public from biased coverage, without the negative impact to broadcasters First Amendment rights. By arming the public with credible information regarding the choices they make in viewing a particular broadcast, the government is allowed to exercise its paternalistic function in a form preferable to content regulations on broadcasters. Finally, the government would maintain a small amount of the broadcast medium to license on conditional terms similar to broadcast regulation today. This would allow the government to offer incentives unique to these channels in return for voluntary adherence to content oversight. The concept is not foreign to broadcast or the media, as National Public Radio (NPR) and Public Broadcasting Service (PBS) provide helpful insights into how these channels could operate successfully. These residual licenses would preserve a press benchmark for other broadcasters to follow while insuring that the public will be provided adequate coverage, without infringing on the First Amendment rights of all broadcasters. This would achieve the goals of the partially regulatory schemes without resorting to the substantial overbreadth of the trusteeship model.

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Ryan M. Posey, Freedom of the press? An analysis of broadcast regulation Model for the Future A mixed market model is a better solution for a long term First Amendment remedy than current approaches because it does not sacrifice institutional flexibility for the free speech interest of the medium, or vice versa. The model achieves this goal by allowing government to control the outer boundaries and maintain a small constitutional laboratory inside the medium, while preserving free control over content to the private owners of the medium. By applying this model to new mediums they can be pulled under the umbrella of First Amendment protections quickly while minimizing the potential risks associated with a relatively unknown, unregulated technology. V. Conclusion Communication mediums are changing at an exponentially greater speed in the modern world, and in this context the law no longer has a twenty year window to catch up with changing technologies. In order to preserve the First Amendment guarantee to a free press in the future, new mediums must be embraced and not cast aside. Whether with a mixed market model or another solution, the first step towards achieving this goal is to apply the fundamental First Amendment protections of the printed press to the broadcast medium. Only through breaking the regulatory cycle will First Amendment protections be truly guaranteed moving forward.

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1 2

Lee C. Bollinger, Images of a Free Press 63 (University of Chicago Press ed. 1991). Communications Act 303 (1934). 3 Charles D. Ferris & James A. Kirkland, Fairness The Broadcasters Hippocratic Oath, 43 Catholic University Law Review 605 (1985), reprinted in First Amendment Anthology 315 (Donald E. Lively, Dorothy E. Roberts & Russell L. Weaver eds., 1994). 4 Bollinger, Images of a Free Press at 64. 5 Personal attack rule any individual or group whose honesty, character, integrity or like personal qualities: are attacked during discussion of a controversial issue of public importance, must be notified by the broa dcaster and given a reasonable opportunity to respond. 6 Political editorial rule any broadcaster who in an editorial endorses/opposes a candidate for public office must notify other candidates and give them a reasonable opportunity to respond. 7 Ferris, supra note 3, at 314. 8 Lecture with Eric Easton, Professor, University of Baltimore Law School (Feb. 27, 2012). 9 Id. 10 Bollinger, Images of a Free Press at 65-66. 11 National Broadcasting Co. v. U.S., 319 U.S. 190 (1943). 12 Concept harkens back to the chaos that occurred after the government abandoned all attempts to regulate the radio. 13 Lucas A. Powe, Jr., American Broadcasting and the First Amendment (1987), in First Amendment Anthology, supra note 3, at 333. 14 New York Times Co. v. Sullivan, 376 U.S. 254 (1964). 15 Id. at 257 16 Bollinger, Images of a Free Press at 20. 17 Id. 18 Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969). 19 Mark S. Fowler & Daniel L. Brenner, A Marketplace Approach to Broadcast Regulation , 60 Texas Law Review 207 (1982), in First Amendment Anthology, supra note 3, at 325. 20 CBS, Inc. v. FCC, 453 U.S. 367 (1981). 21 Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974). 22 Lee C. Bollinger Jr., Freedom of the Press and Public Access: Toward a Theory of Partial Regulation of the Mass Media, 75 Michigan Law Review 1 (1976), in First Amendment Anthology, supra note 3, at 319. The restrictions at issue for both cases stemmed from the fairness doctrine and the personal attack rule, requiring the newspaper to publish or broadcaster to give opportunity of reply to any candidate criticized in their columns or broadcasts. 23 Lucas A. Powe, Jr., The Fourth Estate and the Constitution: Freedom of the Press in America 248 (University of California Press 1992). 24 FCC v. Pacifica Foundation, 438 U.S. 726 (1978). 25 Banzhaf v. FCC, 405 F.2d 1082 (D.C. Cir. 1968), cert. denied, 396 U.S. 842 (1969). Case involved cigarette commercials, particularly a challenge that under the fairness doctrine broadcasters who presented cigarette company commercials should be required to provide free time for anti-smoking advertisements. Essentially the argument was that cigarette commercials and their portrayal of cigarettes as acceptable/desirable presented only one side of a controversial public health issue, and that would bring it within the fairness doctrine. The opinion also focused on the uniqueness of the case in the context of a public health concern, with cigarettes posing a danger to human life. 26 Fowler, supra note 3, at 327. 27 FCC v. Pacifica Foundation, at 749. 28 FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009); Fox Television Stations, Inc. v. FCC, 613 F.3d 317 (2d Cir. 2010), cert. granted, 131 S.Ct. 3065 (2011) (dealing with constitutional challenges to the FCCs alleged ambiguous regulation of indecency and fleeting expletives). 29 Ferris, supra note 3, at 314. 30 Bollinger, Images of a Free Press at 116. 31 Fowler, supra note 19, at 329.

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Ferris, supra note 3, at 314. Fowler, supra note 19, at 327. 34 Id. at 328 (explaining Courts rationale in FCC v. Pacifica). 35 Id. 36 Bollinger, Images of a Free Press at 87-88. 37 Fowler, supra note 19, at 326. 38 See generally Powe, supra note 13. 39 Powe, The Fourth Estate at 213. 40 Bollinger, supra note 22, at 320. 41 Id. 42 Fowler, supra note 19, at 327. 43 Bollinger, Images of a Free Press at 89. 44 Powe, supra note 13, at 333. 45 Id. See generally Board of County Commissioners v. Umbehr, 518 U.S. 668 (1996) (unconstitutional conditions doctrine government may not deny benefit to person on basis that infringes his constitutionally protected freedom of speech even if he has no entitlement to that benefit). 46 Power, supra note 13, at 331. 47 Fowler, supra note 19, at 328. 48 Bollinger, supra note 22, at 321. 49 Fowler, supra note 19, at 328. 50 Bollinger, supra note 22, at 321-322. 51 Powe, The Fourth Estate at 237. 52 Id. at 247. 53 Fowler, supra note 19, at 328. 54 Bollinger, Images of a Free Press at 111. 55 Owen M. Fiss, The Irony of Free Speech 3 (Harvard University Press ed. 1998). 56 Id. at 134. 57 Bollinger, supra note 22, at 322. 58 Bollinger, Images of a Free Press at 115. 59 Id. at 87-88. 60 That although the constitutional rationale for the policy is illogical the mistake has either not caused great harm and may have even been beneficial, and therefore we should preserve the potential benefits of partial regulation. 61 Bollinger, Images of a Free Press at 120. 62 This is open to an obvious attack on the grounds that cable has since trumped broadcast, but for the sake of this hypothetical limit the analysis to these two mediums. 63 Bollinger, Images of a Free press at 120. 64 The and of the press textual debate would seem to be inevitable if taken another step, however is unnecessary for the current analysis. It is sufficient for this discussion to propose that the Framers intended a free press in the dominant form (as determined by society). The framers could not foresee technological advances in communication any more than in areas of transportation or commerce (point being that the constitution is a flexible document capable of changing with the times), and they would likely find debates over different mediums undesirable (print and broadcast are both press, not press varsity and press jv necessitating different levels of First Amendment protections). 65 Fowler, supra note 19, at 330. 66 Id. at 325. 67 Id. at 330. Compared to judgments of social needs by the FCC. 68 Id. 69 Id. 70 Powe, The Fourth Estate at 251. 71 Id. 72 Fiss, The Irony of Free Speech at 52.

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Powe, The Fourth Estate at 254. Stanley Ingber, The First Amendment in Modern Garb: Retaining System Legitimacy A Review Essay of Lucas Powes American Broadcasting and the First Amendment , 56 George Washington Law Review 187 (1987) in First Amendment Anthology, supra note 3, at 325. 75 Powe, The Fourth Estate at 246. 76 Fiss, The Irony of Free Speech at 3. 77 Bollinger, Images of a Free Press at 120. 78 Ingber, supra note 74, at 337. 79 Bollinger, Images of a Free Press at 85. 80 Id. at 99. 81 Ingber, supra note 74, at 337. 82 Id. at 338. 83 Powe, The Fourth Estate at 255. 84 Fowler, supra note 19, at 329. 85 Powe, The Fourth Estate at 237. 86 Id.

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