Converging First Amendment principles for converging communications media.

• Author: Krattenmaker, Thomas G.
• Position: Emerging Media Technology and the First Amendment

For students of telecommunications law and technology, it has become a trivial ritual to observe that telecommunications technologies and media are converging. Neither producers nor purchasers of audio or video information should find much use, in the near future, for such terms as "television," "computer," "telephone," or "radio." These objects are no longer distinct devices and we believe that any differences among them are ephemeral.

For students of constitutional law and the Supreme Court's jurisprudence of the First Amendment guarantee of freedom of speech, these observations are likely to trigger a different ritual incantation: "Different communications media are treated differently for First Amendment purposes."' How can one reconcile the fact of technological and media convergence with the legal presumption of distinct treatments?

We argue in this Essay that this dilemma should not be resolved by permitting the First Amendment to be used as a sword to prevent communications convergence or as a shield to permit government agencies to force these technologies into distinct, procrustean categories. Rather, the latest advances in telecommunications provide federal courts the opportunity to discard the inherently silly notion that freedom of speech depends on the configuration of the speaker's voicebox or mouthpiece.

Further, reflection will show that this step would not be a radical jurisprudential leap. In truth, among all mass communication technologies, only broadcast radio and television have been afforded distinctive treatment. History reveals that the unusual jurisprudence of broadcasting rests on the slimmest foundations. The Supreme Court crafted these rules not so much because the Justices believed broadcasting was distinct, but more because the Court's major free speech cases concerning broadcasting arose when the Justices were deeply conflicted over the relationships between rights of speech and of property(2) or were deeply divided among themselves over the issue of "obscene" or "indecent" speech.(3)

Moreover, to achieve the rational goals of those who prefer to tame the broadcast industry, it is not necessary to retain a separate First Amendment jurisprudence for broadcasters. If we look behind the facade of broadcast free speech law, we can discern established, durable, fundamental principles that govern regulation of mass communications without regard to the technology employed, that protect freedom of speech while leaving ample room for sober regulation, and that apply equally well to all mass communication media. We believe that the growing telecommunications convergence should lead the Court to embrace these principles explicitly while discarding the false notion that "broadcasting" (whatever that is) requires or deserves a separate First Amendment jurisprudence.

This Essay proceeds in four steps. We first explain, briefly, the well-known dualism in mass media law today: one rule for broadcasters, another for printers. We then describe the kinds of objections made to broadcast programming today, confident that similar criticisms will be voiced about the program fare offered by emerging video, audio, and data technologies. In step three, we explain how the "print" model is in fact a coherent and complete system of regulatory ideals, built on four well-established and sensible principles, reflecting current regulation of all nonbroadcast mass media. Finally, we conclude that this more general model will adequately serve the goals of the sober broadcast regulator while providing a sound basis for judging regulation of emerging technologies as well. The progressive congruence of telecommunications technologies, then, ought to be the catalyst for two jurisprudential developments: (1) discarding the broadcast model and

I. TWO MODELS

No matter how often one repeats the statement, it cannot be true that "[d]ifferent communications media are treated differently for First Amendment purposes."(4) Should everything we knew about regulation of books have been discarded once talking motion pictures were invented? Did discovery of the personal computer (or was it the monitor screen?) render obsolete everything the courts said about the First Amendment and broadcasting, or cable, or telephones? Once a free speech jurisprudence is written for computers, must we refuse to employ those rules for a later technology, such as satellites, lest we treat different communications media identically for First Amendment purposes?

Fortunately, it never has been true that each communications medium gets its own free speech rules. Except broadcasting. It is only because of the special status of broadcasting that we can accurately report that constitutional law today reflects two distinct, well-developed models for assessing government regulation of mass communications. The first, and dominant, model is typically referred to as the "print" model but in fact applies to most mass communications media in the United States.

This so-called print model is most neatly encapsulated in Miami Herald Publishing Co. v. Tornillo,(5) with its emphasis on the value of editorial autonomy and the dangers of official censorship. If The Miami Herald wished to throw the full weight of its dominant position in the Miami market to preclude the election of a union leader for state representative,(6) then the First Amendment authorized its action. The media owner decides what is said and how it will be said. As A.J. Liebling quipped: "Freedom of the press is guaranteed only to those who own one."' Or, as the Court more delicately put it: "For better or worse, editing is what editors are for; and editing is selection and choice of material."(8)

A second, competing model is aptly termed the "broadcast" model. It stems from six decades of regulation and is most thoroughly elucidated in Red Lion Broadcasting,(9) with its celebration of the values of access and diversity and concomitant fear of private censorship. This model allows governments to intervene to promote First Amendment values by mandating a more diverse programming fare than broadcasters might otherwise choose. Ideas and speakers are thereby afforded access to listeners and viewers.

Red Lion permits--indeed, virtually exhorts--government to override broadcasters' programming preferences to effectuate the right of listeners and viewers "to receive suitable access to social, political, esthetic, moral, and other ideas and experiences."(10) Possessed of this authority, federal regulators have wondered (as they need not with print) how to "measure the conflicting claims of grand opera and religious services, of market reports and direct advertising, of jazz orchestras and lectures on the diseases of hogs."(11) And a more recent regulator, reflecting on a massive tornado that hit Wichita Falls, Texas, rejoiced that `"[y]oung people listening to a rock station"' received warnings that they might not have had "`if we didn't require the licensee to provide a minimum of news.'"(12) But, lest broadcasting become too diverse, the model is supplemented by a related power of government to enforce a level of conformity when issues of community morality are implicated.(13) The extent of this authorization to censor "indecent" broadcasting is largely undefined, although as stated it clearly exceeds the censorship power permitted by the print model.

While the print model has been criticized,(14) none of the critics has suggested that its deficiencies result in any way from a failure to consider fully the text, history, traditions, and constitutional structure of the First Amendment. The deficiencies in the model are deemed to arise, not from misguided constitutional interpretation, but from the increasing power of the press and the diminishing quality of news and information produced by those exercising their First Amendment rights. By contrast, critics of the broadcast model have noted that it does not conform to the text, history, traditions, or constitutional structure of the First Amendment and that the results of allowing government to regulate so intrusively create just the abuses that the print model postulates would occur in a system of government supervision: favoritism, censorship, and political influence.(15)

Both the print and the broadcast models have attractive features. The appeal of the print model stems from its congruence with the canons of constitutional interpretation: text, history, structure, traditions. The broadcast model is attractive because it recognizes the relationship between speech and the distribution of economic resources, because it encourages a worthy journalistic ethic, and because it posits, as the print model does not, that the freedom of the press (like any other provision of the Constitution(16)) may change with the times.(17)

The print model strictly confines governmental ability to regulate programming. If applied to new technologies, the practical effect would be an unfettered discretion to program virtually anything except obscenity. By contrast, the broadcast model grants governments ample leeway to affect programming decisions, whether to expand access and diversity or to exact conformity. Indeed, no other area of First Amendment jurisprudence is so deferential to government intervention, and we are aware of no one who has suggested that the government needs more power to regulate the media than this model authorizes.

Those wishing to eschew an either/or choice between a jurisprudence that permits too much or one that allows too little program autonomy (or government power) can easily envision a third model splitting some of the differences. Encased in appropriate formulaic language,(18) a third model could give the government some flexibility, when necessary, to regulate programming, but nothing more. This intermediate model could incorporate the insights of the broadcast model while cutting back on its intrusiveness into areas of...