ERIC ED343168: Electronic Media Regulation and the First Amendment: A Perspective for the Future. Report of a Conference of the Aspen Institute's Program on Communications and Society (Queenstown, Maryland, June 3-5, 1990). Forum Report #14.

29 Pages·1991·2.1 MB·English

by  ERIC

DOCUMENT RESUME
ED 343 158
CS 507 739
AUTHOR
Bollier, David
TITLE
Electronic Media Regulation and the First Amendment:
A Perspective for the Future. Report of a Conference
of the Aspen Institute's Program on Communications
and Society (Queenstown, Maryland, June 3-b, 1990).
Forum Report #14.
INSTITUTION
Aspen Inst., Queenstown, MD.
SPONS AGENCY
John and Mary R. "'arkle Voundation, New York, N.Y.
REPORT NO
ISBN-0-89843-103-4
PUB DATE
91
NOTE
29p.
AVAILABLE FROM
The Aspen Institute, Program on Communications and
Society, 1250 Connectizut Ave., N.W., Washington, DC
20036.
PUB TYPE
Collected Works - Conference Proceedings (021)
--
Viewpoints (Opinion/Position Papers, Essays, etc.)
(120)
EDRS PRICE
MF01/PC0 k Plus Pcetage.
DESCRIPTORS
*Federal Regulation; Freedom of Speech; *Futures (of
Society); Government Role; Information Sources; *Mass
Media; Public Policy
IDENTIFIERS
*Electronic Media; *First Amendment; Media Government
Relationship
ABSTRACT
Suggesting future lines of inquiry for policymakers
and others, this report attempts to distill the essential
points of
discussion and debate that occurred during a conference
on electronic
media regulation and the first amendment attended by 21 experts
representing legislative, regulatory, business, judicial,
academic,
audience, and media interests. Sections of the report discuss: coptng
with the "paradigm" shift in communications; the old paradigms
and
how they work; broadcasting and scarcity! the Geller
critique;
reactions to Geller and alternative paradigms; the hybrid first
amendment rights of cable television; is common carriage
incompatible
with the first amendment?; proposed theories of the
first amendment
in the era of electronic media; reactions to the 10
theories of the
first amendment; and the question whether a single theory
of the
first amendment can embrace both print and electronic
media? A
partial list of referenced cases, a list of conference
participants,
and the Program on Communications and Society policy
statement are
attached. (RS)
*****X******************************************1***********************
Reproductions supplied by EDRS are the beet that
can be made
from the original document.
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Pr
AIL
Electronic Media
Regulation and the
First Amendment
A Perspective for
the Future
DAVID BOLLIER
Rapporteur
"PERMISSION TO REPRODUra THIS
MATERIAL HAS BEEN GRANTED BY
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INFORMATION CENTER (ERICI"
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The Aspen Institute
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Federated Department Stores IBM Corporation
(Contmed on omit" bac* cow)
FORUM REPORT
Electronic Media Regulation and the First Amendment:
A Perspective for the Future
by
David Bollier
This is FORUM REPORT #14 in a series intended
to invite wider interest in the concerns and activities of
The Aspen Institute Project on Enhancing the Social Benefits
of New Electronic Technologies
supported by a grant from
The John and Mary R. Markle Foundation
(1
Report of a Conference of
The Aspen Institute's
\.4
Program on Communications and Society
tit
Wye Woods Conference Center
Queenstown, Maryland
la=
For additional copies of this report, please contact:
The Aspen Institute
Program on Communications and Society
1250 Connecticut Avenue, NW
Suite 700
Washington, DC 20036
Phone: [phone]
[phone]
Fax:
Copyright @ 1991 by
The Aspen Institute
The Aspen Institute
Wye Center, P.O. Box 222
Queenstown, Maryland 21658
Published in the United States of America
in 1991 by The Aspen Institute
All rights mserved
.11-Ned in the United States of America
ISBN #0-89843-103-4
5
CONTENTS
THE REPORT
1
Coping with a "Paradigm" Shift in Communications
I.
1
The Old Paradigms and How They Worked
II.
Broadcasting and Scarcity: The Geller Critique
4
III.
IV. Reactions to Geller and Alternative Paradigms
The Hybrid First Amendment Rights of Cable Television
V.
8
Is Common Carriage Incompatible with the First Amendment
VI.
9
VII. Proposed Theories of the First Amendment in the Era of Electronic Media
10
The Property Rights Theory
1.
The Government-Created Scarcity Theory
2.
The Eclectic Cultural Approach
3.
The Computer Bulletin Board Theory
4.
The Print Model Wedded to Common Carrier Theory
5.
The Partial Regulation / Quality Theory
6.
The "Separations" Theory
7.
The "Cascading Access" Theory
8.
The Full Human Initiative Theory
9.
The Core Values Theory
10.
VIII. Reactions to the Ten Theories of the First Amendment
14
Can a Single Theory of the First Amendment Embrace
IX.
Both Print and Electronic Media?
15
Conclusion
X.
16
APPENDIX A: A Partial List of Referenced Cases
17
APPENDIX B: Conference Participants
18
APPENDIX C: The Program on Communications and Society Policy Statement
20
THE REPORT
The 1980s saw a remarkable profusion of new
convened 21 experts, most of them attorneys, who
electronic technologies that are now routinely used in
represent legislative, regulatory, business, judicial,
mass communications, business, and households.
academic, audience and media interests. (A complete
Such media as personal computers, video cassette
list of participants is included in Appendix A.) Charles
recorders, interactive video disks, cable television,
M. Firestone, Director of the Program on Communi-
satellites and home dishes, and fiber optics, among
cations and Society, moderated the conference, which
others, have dramatically altered the economic and
consisted of seven ranety-minute sessions.
social landscape.
This report attempts to distill the essential points
While often admired for their remarkable techni-
of discussion and debate, and in the process suggest
cal capabilities, these media are also creating serious
fruitful lines of inquiry for policymakers and others.
uncertainties, even havoc, with the received corpus of
I. Coping with a °Paradigm Shift"
First Amendment law. New electronic media are often
profoundly different in character from either print or
in Communications
broadcasting, upon which First Amendment commu-
nications law has traditionally been based. Forexample.
The first session was opened with a presentation
units of information can now be digitalized and
by John Hindle, Director. Institute for Information
therefore manipulated, replicated and transmitted far
Studies, a joint program of Northern Telecom, Inc..
more easily and inexpensively. New forms of inter-
and The A spen Institute. Hindle proposed the idea that
active video communication defy conventional notions
we are in the midst of a massive "paradigm shift"
of "publishing."
from the industrial age to the information age
in
ln this radical new milieu, in which telephone
which many people continue to cling to "old" assump-
companies claim a constitutional right to "publish"
tions and beliefs despite the emergence of a funda-
over their own lines and cable companim liken them-
mentally different reality.
selves to newspapers, it becomes exceedingly urgent
To illustrate this concept, Hindle pluayed a video
to ask how traditional First Amendment legal standards
clip in which a series of playing card.s were flashed on
should be modified, if at all. Should each medium be
the screen for milliseconds, and 1, zri progressively
considered a law unto itself," as the Supreme Court
slower. At a certain point it became evident to sharper
declared long ago? Or should Congress, the courts and
eyes that the traditional playing-card shapes (such as
the FCC try to develop a more coherent, integrated
diamonds or clubs) were not appearing in their cus-
legal framework? Should freedom of expression ap-
tomary colors (i.e., the diamond was actually black;
ply primarily to the owners of the means of dissemi-
the club was red). The point: Paradigm shifts can be
nation, or to any citizen who wants to disseminate
hard to detect when they run contrary to one's habitual
information through that medium? After all is said and
modes of perc ption. Furthermore, an "old" paradigm
is likely to last far beyond its usefulness. This is
done, what means should Congress or the FCC employ
to achieve its 4,zired goals for the use of these media?
especially true as ri#: w electronic technologies evolve
To address these and related questions, The Aspen
more rapidly than the policy structures designed to
Institute's Program on Communications and Society
govern them.
The Aspen Institute
II. The Old Paradigms and
Monroe Price, Dean of the Benjamin N. Cardozo
How They Worked
School of Law at Yeshiva University, interjected
that the playing-card metaphor of a "paradigm shift"
Charles Firestone began the second svssion by
should provoke the question, What is fundamental
describing the three major legal paradigms that have
the shape of the suits or the color?
to the paradigm
traditionally governed communications media. These
In other words, Price cautioned, one must carefully
include:
assess what is fundamental to a medium; it may not
Thcatiyilkinokl, based on a laissez-faire mar-
be obvious.
ketplace of ideas, holds the interests of the press as
Onc major impetus for the paradigm shift in com-
paramount. This model assumes that a free market
munications, said Hindle, is the digitalization of elec-
actually exists and thereby ensures "diverse, antago-
tronic media, which has made possible their conver-
nistic sources of information" that are necessary for a
gence. Facsimile machines combine printed text and
democracy.
telephones, for example. Interactive video disks com-
The trustee model, as articulated in the Rollign
bine personal computers, television and sometimes
case of 1969. holds that the interests of the public are
prinufs. This convergence of media makes it more
paramount. The customary rationale for the trustee
difficult to apply conventional definitions even to
model is the inherent scarcity of broadcast frequen-
fumiliar technologies. In 1992, for example. Ameri-
cies, which requires government allocation and licens-
can business will use the nation's telephone network
In return for the
ing of the broadcast spectrum.
more for non-voice transmissions between machines
privilege of holding a license, broadcasters agree to act
(data, fax, etc.) than for conventional human-to-hu-
as a trustee for all those who are necessarily oil able to
man conversations.
hold a license, i.e., individual citizens.
Andrew J. Schwartzman, Executive Director of
Thr,gilMMQ13Sani.e.L.M.Cffid. derived from the
the Media Access Project, a citizens' advocacy group,
"natural monopoly" regulation of railroads and tele-
warned that new electronic technologies. however
phone systems, holds that the interests of individuals
novel or different. do not necessarily imply a paradigm
are paramount. The common carrier model ensures
shift. "Cable was supposed to provide all the channels
equal access to all at reasonable rates.
we would need," said Schwartzman, "yet here we still
Although these three models are the predomi-
have fights over must-carry and inadequate channel
nant forms of communications regulation, the new
space. This is the 'abundance' everyone predicted
electronic media have forced hybrid approaches.
but where is the 'abundance'?" Schwartzman later
Cable television is a case in point. It has some char-
14Jded, "Is every possible innovation in telecommuni-
acteristics of a natural monopoly (the common carrier
cations worth having?" noting that many innovations
model): there is a scarcity of channel space in abso-
are accompanied by twge costs, modest benefits and
lute terms (the public trustee model); and there is
inequitable access.
some degree of competition, both between cable and
The group's pricPy reaction to some of Hindle's
other television media and among cable channels
technological predictions prompted Mimic! Brenner,
(the private model).
Director of the Communications Law Program at
The "purity" of the three models is being chal-
UCLA School of Law, to wonder aloud what might
account for participants' "bristle factor." Although
lenged, noted Firestone, by:
which include the digi-
the question was never fully resolved, one participant
Technological changes,
talization of all electronic media; the merging of video
suggested that the lawyers around the table may dislike
and computer technologies; the expansion of broadband
the idea that technology may have its own imperatives
delivery systems; and the development of interactive
that cannot be readily governed by law. Conversely,
capabilities.
techno!ogists may not appreciate how law and policy
which include the declining
Economic changes
are needed to ensure stable markets and clear, predict-
In any case, there was a general
cost of computing and transmitting; the entrance of
able legal rights.
new competitors to the market; the reduction of regu-
consensus that the existing regulatory structure for
latory costs as companies expand globally; and the
telecommunications has been rendered obsolete by
increasing vertical integration of companies, with all
new electronic media.
the synergistic advantages that implies.
no one really
If the paradigm is indeed shifting
in communications industries,
Deregulation
what is the essence of the old
disputed that notion
which includes the abolition of the Fairness Doctrine;
paradigms that are waning? Which elements of the old
the 1984 Cable Act: and the Modified Final Judgment
models ought to be jettisoned, and which salvaged?
that broke up the AT&T telephone system.
Program on Communications and Society
Having outlined the primary paradigms of com-
5.
Entertainment
munication regulation, Firestone invited participants
Cultural equality
6.
to challenge, modify or affirm them. Steven Shiffrin,
7.
Preserve national identity and maintain
a professor at Cornell Law School. said that the public
status quo through consumption of
trnstee model need not be justified by scarcity; it could
people's time
and should be affirmed on its own terms, as a govern-
Informed electorate
8.
ment subsidy to free speech.
Education
9.
Monroe Price suggested that the three paradigms
10. Peer appmval & act as a check on
of regulation could be considered "superficial"
government
manifestations of deeper principles. The common
11. Satisfy curiosity
carrier model, for example, draws its legitimacy from
12. Ensure privacy; the freedom not
our more basic commitment to democratic values:
to speak
Everyone should have equal, fair access to the means
13. National security
of communication.
Tracy Westen, a professor at the USC Annenberg
School of Communications, proposed two mere in-
In reviewing the list, Monroe Price suggested that
clusive communications paradigms; a laissez-faire,
"the differences between paradigms may not Ire as
great as we think."
decentralized model, commonly associated with the
In either the public trustee or
print media, and a "forum" model, in which govern-
common carrier model, "government Ini.s to have an
ment sets ground rules for the exchange of ideas,
agenda. Isn't that the problem
government advar.c-
commonly associated with the mass media. "Which
ing diversity lof voices) via government delegation er
paradigm should apply to the mass media?" Westen
public trustees? Doesn't that just legitimate greate,.
asked, noting that broadcasters often cite either para-
government control?"
digm, as convenient, to justify whatever policy goal is
Shiffrin responded: "Government does, and must,
being discussed.
intervene in the market to make content distinctions in
But Steven Shiffrin objected that his idea of
media." If only to nurture a market into existence, or
"government-subsidized speech"
the justification
later to subsidize it with legal protections, government
for the public '.rustee model
does not fall into either
intervenes in media markets, he said. Yes, the gov-
of Westen's categories. Nor does the model of "di-
ernment intervenes, conceded Robert Corn-Revere.
verse, ai..Agonistic sources of information," as set
Legal Assistant to FCC Commissioner James Quello,
forth in the 1945 Asatlidatesilrem case, have any
but it should not control. Corn-Revere objected to
relevance to children's programming. Indeed, even
Shiffrin's conteltion that the licensing process is a
though that model purports to be content-neutral, it is
form of business subsidy, which would indeed legiti-
in fact captive to commercial interests, complained
mize government control of electronic media.
Shiffrin. An advertiser-supported medium of "di-
This is really an irreconcilable paradox, pointed
verse, antagonistic sources" promotes a "pro-materi-
out Frank W. Lloyd, an attorney with Mintz, Levin,
alistic, hedonistic culture." Shiffrin urged that we
Cohn, Ferris, Glovsky & Popeo, P.C., who represvnts
step back and ask a more probing, fundamental ques-
cable interests. "The media are private, but they use
tion, "What kind of culture do you want to promote?"
public facilities
airwaves or streets." Even the print
Shiffrin's point gave rise to an extended discus-
media benefit from government involvement, in the
sion of what should be the basic goals of our commu-
form of postal service.
nications systems. Firestone suggested that panici-
Andrew Schwartzman complained that this argu-
pants assemble a list, which resulted in the following
ment casts government in black-or-white terms; he
compilation.
argued for a myre textured appreciation for govern-
ment intervention in markets. "Let's look at govern-
ment as a participant and guarantor [of desired goals]
Goals of the Nation's
in cases of market failure." That is the role government
Communications System
played in bringing about universal telephone service.
he noted.
In an attempt to see how the previous list. "Desired
1. A diversity of voices
Goals of the Nation's Communications Systems"
2. Diversification of ownership
comports with the First Amendment, Firestone invited
3. Universal access
participants to itemize the goals and values of the
4. Profit
First Amendment.
0111=0
3
9
The Aspen Institute
to sell Lee's jeans instead of Levi's, or sells one book
nrst Amendment Goals and Values
instead of another? How do we diffeientiate the First
Amendment from other policy concerns?"
1. Free marketplace of ideas
Corn-Revere replied that "economics and First
(satisfy curiosity; diversity of voices,
Amendment considerations in related." One cannot
diversification of media ownership)
summarily separate the two. At the same time, he
2. Self-expression
warned that the scope of the First Amendment should
3. Safety valve for discontent/dissent
not be dictated by mundane examples. "If you don't
4. Dissent (not simply as safety valve or as a
discuss the First Amendment in lofty terms, you
check on government)
trivialize it."
5. Self-government/informed electorate
Henry Geller agreed: "You really do have to look
6. Promote change
at lolly purposes. Libel and obscenity are outside of
7. Check government excesses
the First Amendment precisely because judges have
struggled with its goals. If you just stop with what the
Robert Corn-Revere objected to the very idea of
Framers wanted, you wouldn't have any breathing
enumerating the goals of the First Amendment. By
mom," said Geller, noting how Near_LAinnesota in
implication, that enterprise sanctifies regulatory
1931 and New York Times v. Sullivan in 1964 dra-
paradigms that might rein in free speech rights. "We
matically expanded the scope of the First Amendment.
circumvent the First Amendment by assigning it tasks,"
he argued. "That simply lets you chip away at the First
Broadcasting and "Scarcity":
Amendment by defining away what's nsa covered by
The Geller Critique
it..
People use the media for 'many different reasons.
..
The First Amendment is a goal in and of itself."
Is "scarcity" of broadcasting frequencies still a
But Nolan A. Bowie, Associate Professor at Temple
valid rationale for maintaining the public trustee model
University, pointed out that the actual meaning of First
of regulation? Henry Geller opened the third session
Amendment is not self-evident. "Look at the history
by addressing this question.
of the First Amendment." he said, pointing out that all
The short answer, according to Geller, is yes. l'hat
sorts of free speech rights did not even exist until the
is because the government, when it first allocated the
Supreme Court "found" them following World War I.
right to use the public airwaves, rejected options that
For better or worse, the First Amendment comes
would have enhanced public access, such as a division
freighted with the moral/policy assumptions of a given
of the broadcast frequency into months or days so that
period in history, he said. Schwartzman essentially
different parties could have access, or the creation of
agreed with Bowie, that the First Amendment must be
"access periods" or a common carrier. Instead, Con-
considered in its political context. How else to explain
gress gave exclusive, long-term control over frequen-
the campaign for a constitutional amendment to ban
cies to single licensees. As a tradeoff, it only made
flag desecration? Legislators and judges unavoidably
sense to make licensees trustees for everyone else who
bring certain policy assumptions to their understand-
was necessarily denied access to the airwaves.
ing of the First Amendment.
The Supreme Court has upheld the public trustee
Indeed, added Monroe Price, the government has
model of broadcast regulation on numerous occasions,
asserted speech rights for itself on many occasions.
Through Voice of America and Radio Marti, the
beginning in 1943 with Nationid proadcasting Co. v,
U.S. and in 1969 with Red Lion Broadcastine v. U.S,
government has projected its own agenda of-directive,
as well as in numerous subsequent cases such as
culture-bound speech" in attempts to change societies.
NCO and Logue of W.gmen Voters.
"We don't necessarily think that government doesn't,
Is the public trustee model gill constitutional?
or shouldn't, use media to change the culture," he
"Sure," said Geller, "unless the Court overrules
RAI
observed. Government also has claimed certain speech
Lion. People forget that Begation is a radio case. It's
rights for itself, others noted, in the form of Section
stupid and silly to argue that [the public trustee model
312 of the Communications Act, which provides ac-
for broadcasting] is constitutional with 7,000 radio
cess to the airwaves for federal political candidates.
stations in 1969 but not with 10,000 now, or with 32
Anti-drug publicity campaigns are another example.
radio stations in Washington, D.C. (1969), but uncon-
Brenner was troubled that some partisans claim
stitutional with 41 [now)."
over-inclusive speech protection based on the First
"The real question," Geller argued. "is, Will MI
Amendment. "Once you characterize a problem as a
jam be ovemiled? 1 think it's unlikely, because it
First Amendment problem, you can get greater protec-
would be very disruptive to overrule it." He pointed
What if the government military PX decides
tion.
. . .
1 0