Communications media and the First Amendent: a viewpoint-neutral FCC is not too much to ask for.

• Author: Walker, Helgi

1. INTRODUCTION

   In the "new economy" driven by the telecommunications industry, the Federal Communications Commission ("FCC" or "Commission") is a busy agency. Given the myriad legal issues faced daily by Commission decisionmakers and the lack of perfect clarity in major communications legislation,(1) one might be willing to overlook a few legal missteps here and there by the FCC. In one area of the law, however, the public can and should require a first-rate agency record: regulation of communications media without regard to the viewpoint expressed via that media, as required by basic First Amendment principle.

   This Article argues that the FCC should actively avoid viewpoint discrimination in its adjudication and rulemaking where the relevant statute does not require it. Part II describes the constitutional disfavor with which courts regard viewpoint distinctions. Part III explains why regulators reasonably can be expected to avoid viewpoint-discriminatory methods. Part IV studies cases in which the FCC adopted policies that turn on the viewpoints of regulated parties. Part V concludes that the FCC can and should avoid such constitutionally suspect classifications in the future.

2. THE UNIQUELY DISFAVORED STATUS OF VIEWPOINT-BASED LAWS IN FIRST AMENDMENT JURISPRUDENCE

   First Amendment jurisprudence is by no means the clearest or least controversial body of law in the land. Some basic tenets, however, are readily ascertainable and generally accepted. Specifically, most courts and commentators consider governmental discrimination on the basis of viewpoint--that is, treating one group differently than another simply because of its particular perspective on a given topic--to be a classic and especially egregious violation of the Free Speech Clause of the First Amendment. As the Supreme Court has explained, "[w]hen the government targets not [just] subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant."(2)

   Viewpoint-based rules so offend First Amendment values that uniquely stringent constitutional standards govern their use. For example, government cannot censor wholly unprotected and otherwise proscribable speech based on its like or dislike of a particular message expressed by such speech;(3) government may make certain content-based distinctions within categories of unprotected speech, however.(4) Similarly, in nonpublic fora, where government decisionmakers have wide latitude to regulate speech, they still may not bar speakers on the basis of their viewpoints.(5) Finally, although the Court has sanctioned in broad terms governmental judgments on funding when based on content or even a certain philosophy of a given subject,(6) its more recent cases suggest a contrary trend. These cases clearly establish (to the dismay of some Justices) that the ban on viewpoint discrimination fully applies in the context of funding.(7) As these various constitutional standards reflect, viewpoint-based rules occupy the very bottom of the free speech barrel.

   This uniquely disfavored legal status stands to reason. It is sufficiently problematic for government to declare that no one can talk about a certain topic--that is, to regulate speech based on content or subject matter. To allow some speakers to express an opinion on that topic, however, while quieting those with any other understanding of the matter --to regulate speech by viewpoint--strikes one as even worse.

   In the first case, although the government suppresses speech, it does so roundly. Accordingly, no single view of the subject is being promoted over another. In the latter situation, however, government itself selects and then protects a particular point of view by permitting its expression while simultaneously prohibiting any contrary ones. Thus, government does not just neutralize discussion, but goes the extra step of affirmatively skewing the discussion in a self-selected direction.(8) As Justice Scalia colorfully put it, the government thereby "license[s] one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensbury rules."(9) Under such circumstances, the contest is fundamentally unfair and impairs the competition of ideas on the merits.

   Is there any more specific reason, though, that the affirmative promotion of one point of view should be more offensive to the First Amendment than generally enforced silence? After all, more, not less, speech results when only one side of a debate is muted, and many consider more speech to be better than less speech.(10)

   That argument fails to take account of the practical effects of viewpoint-based rules on the political process. Governmental promotion of a particular idea creates and active force of public persuasion that does not exist in the context of subject-matter bans. By picking a side and prohibiting expression of any other, government thus increases the chances that undecided citizens will adopt the preferred view and that it will become or remain binding policy.(11)

   This might occur in several ways. When the established thinking on an issue is favorably presented to the public and then hangs in the ether, immune from challenge, it is more likely to be perpetuated by sheer force of social osmosis. That is to say, people might simply assume the proposition to be true or otherwise uncontestable because no critical views are even apparent. As Justice Jackson explained, "Progress generally begins in skepticism about accepted truths."(12) Yet, when no skepticism can be expressed, reexamination of established ideas and consideration of new ones will probably not occur.(13) Moreover, when a point of view bears the official imprimatur of the government, some may take that fact in itself as proof of the idea's legitimacy.(14)

   When the entire conversation about a subject is stopped (as objectionable as that is), there is at least no risk that converts will be won by one side or the other. The status quo simply persists. This is because no speech that might persuade can occur, nor is there any question of an authoritative seal of approval for one side that might influence.

   In the battle for public opinion, the ability to win over the undecided that is conferred by affirmative promotion could result in victory--whether by winning elections or enacting legislation--in the political process. If that occurs, the government has not only restricted the free exchange of ideas by and among individuals, which to some is itself a First Amendment harm,(15) but its "distort[ion] [of] public debate"(16) has affected the substantive outcome of the political process, which is certainly an independent and arguably greater constitutional harm.(17)

3. A VIEWPOINT-NEUTRAL FCC IS NOT TOO MUCH TO ASK FOR

   In an ideal world, the FCC would carefully adhere to the above-described, core First Amendment admonition against viewpoint regulation. To be sure, ideals are often difficult to uphold in the real world. But even as a practical matter, asking the FCC to observe the ban on viewpoint-based rules is not demanding too much of the agency. Potential violations of the ban on viewpoint discrimination are, for the reasons that follow, relatively easy to identify and avoid. When the agency nonetheless transgresses this constitutional limit, there is good reason to believe that its regulatory action is motivated by the impermissible, usually political, purpose of manipulating public opinion.(18)

   1. The Identification and Avoidance of Viewpoint-Based Regulation

      First, it is relatively simple to assess ex ante the probable legality of viewpoint-based regulations. The constitutional proscription against such rules is phrased in categorical terms and draws a far brighter line between legal and illegal conduct than do most constitutional standards.(19) Viewpoint-based rules are not subject to any intermediate standard of review, the results of which can be difficult to predict; indeed, they are not subject to judicial weighing or balancing of any kind. Rather, courts consider them presumptively unconstitutional(20) and thus almost always strike them down upon a finding that they operate according to the viewpoint of the regulated parties.(21) By contrast, even some content-based restrictions have been sustained under strict scrutiny.(22)

      Thus, in the universe of constitutional precepts, the prohibition against viewpoint-based regulations is about as unambiguous as one can find. If the FCC has what appears to be a viewpoint-based proposal on its hands, chances are overwhelmingly good that the regulation is an unconstitutional one. In such a case, the unlawfulness of the agency's action is reasonably foreseeable to decisionmakers.(23)

      Second, the actual classification of a regulation as viewpoint-based is not, as constitutionally founded categories go, overly difficult to make. At this point, it should be acknowledged that, given the flat nature of the ban on viewpoint-based rules, the force of the prohibition on viewpoint discrimination turns largely on the categorization of the rule at issue. Consequently, some might assert that results-oriented lawyers or judges can argue themselves into or out of the viewpoint-based category and, thus, into or out of a violation of the First Amendment.(24) On this view, then, trying to classify rules as viewpoint-discriminatory is a pointless endeavor.

      That might well be true, but a principled, neutral basis for evaluating these rules can be articulated and applied.(25) Even a regulator who favors a particular rule for political reasons should want a disinterested assessment of the First Amendment risks of the rule. After all, no policy likely to be overturned by the courts (assuming they will neutrally review cases at least some of the time) is a rational bet for even the most ardent supporter of its ends. Agencies should have the incentive to try to objectively and correctly identify potentially...