I. INTRODUCTION: LAWS OF MISREPRESENTATION AND THE UNIQUE STATUS OF RADIO
In explaining the limits of protection under the First Amendment, Supreme Court Justice Oliver Wendell Holmes once wrote: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."(1) This famous dictum has often been cited to underscore the fact that free speech will not be a viable defense when such speech is used to perpetrate a fraud or misrepresentation that is relied upon by others. When Holmes first scripted his observation in 1919, radio and the electronic mass media were still in their infancy. The next year would see the start of the very first broadcast radio station in the United States.(2) Few had heard of commercial radio broadcasts up to that point. The creation of the Federal Communications Commission (FCC) was still fourteen years away.(3)
With the advent of commercial broadcasting, the challenges of balancing free speech with the interests of protecting the public from potentially harmful frauds raised to new levels. The theater in which one can shout "fire" is no longer confined to a single locale. The venue now ranges in size from individuals, to communities, to the entire global village.
Since its inception, the FCC struggled in deciding where to draw the line regarding broadcast hoaxes. On the one hand, the FCC has sought to enforce regulations which ensure that the airwaves are used, among other reasons, "for the purpose of promoting safety of life and property."(4) On the other hand, the FCC has been reluctant to dictate the content of broadcasters, lest it stifle the vibrancy of the media in reaching its potential to fulfill artistic, informational, and cultural needs.(5)
When it comes to perpetrating hoaxes, no medium other than the Internet has been as prolific as the radio. Not only is radio pervasive, it can have profound effects on its listeners. Author Tim Crook explained the primary reason why radio can have such a unique effect:
[R]adio was the first electronic medium of mass entertainment and radio is
a more psychological medium. Its relationship with its audience is based on
an emotional and imaginative bond. In 1997[,] radio has not lost its
importance as a huge and significant source for news and entertainment[,]
and the opportunity to hoodwink the audience is as strong as it has ever
Certainly, the opportunity to mislead an audience exists in other mediums. Television and print media are equally capable of misleading consumers if the producers of their content are determined to do so. Additionally, the relatively unregulated Internet is fertile ground for various types of fraud and misinformation. However, certain limitations on other media technologies prevent them from having the same impact as radio. Print is not as immediate as radio. For instance, it is hard to imagine a newspaper displaying the headline, "Community Church Is Burning Now as Reader Is Reading this Paper." Whether the text is from newspapers or the Internet, it can only convey events that have taken place in the past or make predictions about the future. Television can have a more immediate impact, but viewing television requires an information consumer to be in a passive state. Few productive actions can be achieved simultaneously while watching television.
One of the reasons radio remains an effective hoax medium is its unique ability to engage audiences while they are involved in different tasks. For instance, people can receive radio information while they are driving to work, washing dishes, typing, jogging, showering, or performing any number of tasks. In terms of portability, radio remains second only to newspapers in its ability to follow the audience throughout their daily lives. Visual media--such as print, television, and the Internet--require the undivided attention of a static viewer in order to receive information. …