Academic journal article The Yale Law Journal

Converging First Amendment Principles for Converging Communications Media

Academic journal article The Yale Law Journal

Converging First Amendment Principles for Converging Communications Media

Article excerpt

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. …

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