Technologies of control and the future of the First Amendment.

• Author: Yoo, Christopher S.

TABLE OF CONTENTS INTRODUCTION I. THE CLASSICAL LIBERAL VISION OF FREE SPEECH II. THE CRITIQUE OF PREFERENCES A. Idealized Preferences B. Supreme Court Doctrine III. THE THREAT OF "PRIVATE CENSORSHIP" AND THE CRITIQUE OF THE STATE ACTION DOCTRINE A. Exception: Scarcity in Broadcasting B. Exception: Broadcasting as Intruder CONCLUSION INTRODUCTION

The Supreme Court's landmark decision in FCC v. Pacifica Foundation has long served as the jurisprudential basis for holding that restrictions on broadcast indecency do not violate the First Amendment. (1) The technological context in which Pacifica arose allowed the Court to gloss over the tension between two rather disparate rationales. Those who take a civil libertarian view of free speech could support the decision on the grounds that viewers' and listeners' inability to filter out unwanted speech exposed them to content that they did not wish to see or hear. (2) At the same time, Pacifica also found support from those who more paternalistically regard indecency as low value (if not socially harmful) speech that is unworthy of full First Amendment protection. (3) The lack of any effective means through which audiences could exercise control over the content to which they were exposed obviated the need for courts and commentators to resolve the tension between these two disparate perspectives.

More recently, technological developments have given audiences greater control over the content that they see and hear. Innovations such as the V-chip allow parents to exercise effective control over indecent speech transmitted over the airwaves. (4) Filtering technologies, deployed at the edge and in the core of the network, are enhancing end users' ability to keep out threats and unwanted content on the Internet. (5) The fact that audiences are now in a better position to exercise control over the content to which they are exposed has introduced a wedge between those who supported the constitutionality of indecency regulations out of a desire to enhance individual autonomy and more conservative voices who wish to restrict speech in the name of promoting the public good. At the same time, commentators on the political left have begun to question whether continued support for the classic liberal vision of free speech may be interfering with the advancement of progressive values. (6)

The return of FCC v. Fox Television Stations, Inc. to the Supreme Court of the United States for a second time may provide the opportunity to resolve this long-standing controversy. When the case first appeared before the Court, the Justices upheld the Federal Communications Commission's (FCC) decision to abandon its previous policy of enforcing broadcast indecency restrictions only against deliberate and repetitive uses of profanity purely as a matter of administrative law and remanded the case to the Second Circuit so that it could address the underlying constitutional issues. (7) Now that the Supreme Court has granted certiorari in the case for a second time, the Court will finally be in a position to address the underlying First Amendment issues. (8)

This Article offers a qualified defense of the libertarian vision of free speech associated with classical liberal theory. Not only would deviating from the traditional view require a revolution in doctrine; it would also bring the First Amendment into conflict with fundamental tenets of liberal and democratic theory to a greater extent than is generally recognized.

1. THE CLASSICAL LIBERAL VISION OF FREE SPEECH

   The traditional conception of free speech embodied in the First Amendment doctrine articulated by the Supreme Court is best understood as being founded in classical liberal theory. At the risk of oversimplifying, classical liberal theory posits that individuals are independent moral agents capable of making up their own minds. (9) In terms of free speech, this commitment to independent moral agency entails that the state must respect individuals' decisions about what to say (10) as well as their choices about the speech to which they wish to be exposed. (11)

   Many commentators similarly view this liberty-oriented commitment to free speech as inherent in our society's commitment to democracy. Like liberalism more generally, democracy is premised on the belief that individuals are capable of making judgments that affect their own lives. (12) Rejecting people's ability to make their own decisions about the speech to which they wish to be exposed thus contradicts the very premise on which democratic systems of government are based. (13) Indeed, if individuals' judgments were not worthy of respect, there would be little reason to respect the results of elections. (14)

   As such, independent moral agency is more properly regarded as a foundational postulate than as an empirical claim. In other words, it is more properly regarded as a quality theoretically ascribed to individuals under liberal and democratic theory as a necessary concomitant of their status as repositories of liberty than as a descriptive quality that may or may not exist empirically. (15)

   In addition, classical liberalism reflects an inherent distrust of state authority. (16) As an initial matter, classical liberalism necessarily presupposes the existence of a sphere of purely private action into which the government cannot intrude. (17) Classical liberalism also regards the individual as being logically prior to the state and assumes that individuals constitute the state through some type of social contract. (18) In other words, classical liberalism dictates that the individuals are the subjects and the government the object, not the other way around.

   The academic literature has launched two principal lines of attack on the classical liberal vision of free speech. One prong criticizes the continued reliance on individual preferences. (19) The other argues that private actors pose a greater threat to free speech than the government. (20)

2. THE CRITIQUE OF PREFERENCES

   Under the classical liberal view, end users' enhanced ability to exclude content they do not wish to see or hear weakens arguments that restrictions of particular types of speech are constitutional. The development of effective filters increases individuals' ability to ensure that they are exposed only to the content to which they wish to be exposed. Some scholars have suggested, however, that technologies that give individuals greater control over media content are not necessarily a cause for celebration. For example, Cass Sunstein has argued that the mix of speech individuals should see ought to reflect public values and not just their personal choices and that low-value speech such as pornography should receive a lesser degree of First Amendment protection. (21) Sunstein further warned that allowing individuals to personalize the content they receive risks limiting the information that they receive to what Nicholas Negroponte called the "Daily Me," comprised exclusively of subjects in which they are already interested and opinions with which they are already inclined to agree. (22) Lawrence Lessig raised the related concern that the ability to limit people's exposure to speech that accords with their preferences will fragment audiences and expose them only to speech that reinforces their preexisting views of the world. (23)

   The argument for disregarding or disempowering individual preferences is based on the claim that preferences are not simply the exclusive product of each individual's autonomy. Instead, they are as much the product of the speech that already exists and the social structure that created that speech. (24) From this point of view, forcing people to deviate from what they believe are their preferences is not a violation of individual autonomy because those preferences derive more from the media to which people have been exposed than the "freely produced desire" that would exist if "more and better choices [were] made available." (25) Conversely, honoring existing preferences that are largely shaped by the nature of the content that already exists would amount to nothing more than a circular perpetuation of the status quo.

   Critiquing preferences in this manner leads to a fairly illiberal transformation in the justification for governmental intervention. (26) From this perspective, the problem is not that individuals are unable to see only what they want; rather, the problem is that they want the wrong things. (27) Put another way, regulation is no longer about market failure; it is about audience failure.

   Overriding individual preferences in this manner is flatly inconsistent with classical liberal theory. Forcing audiences to experience content that they would not willingly choose contradicts the premise inherent in liberalism and democratic theory that individuals are able to make their own decisions about the content they consume.

   1. Idealized Preferences

      How then can one justify forcing individuals to deviate from their preferences? The classic solution is to argue that the coerced outcome accords with the preferences that the individual would have held had she existed in a more idealized state of the world. (28) Distilling such idealized preferences is precisely the purpose of Rawls's "veil of ignorance," which provides a mechanism for reconciling more intrusive government policies with the central commitments associated with liberalism. (29)

      The challenge is identifying a coherent set of substantive principles and an institutional setting by which this idealized set of preferences can be identified and defined. The normative attractiveness of any such regime thus depends on how clearly articulated and analytically well-defended is any particular method for ascertaining what people would have wanted had they been exposed to a richer set of stimuli. To date, however, the mechanisms proffered for identifying idealized preferences have been frustratingly thin. The lack of specificity...