During the past half century there have existed in this country two opposing constitutional traditions regarding the press. On the one hand, the Supreme Court has accorded the print media virtually complete constitutional protection from attempts by government to impose affirmative controls such as access regulation. On the other hand, the Court has held affirmative regulation of the broadcast media to be constitutionally permissible, and has even suggested that it may be constitutionally compelled. In interpreting the first amendment, the Court in one context has insisted on the historical right of the editor to be free from government scrutiny, but in the other it has minimized the news director's freedom to engage in "unlimited private censorship" and has exalted the "right of the public to receive suitable access to social, political, aesthetic, moral and other ideas and experiences." The opinions in each area stand apart, carefully preserved through a distinctive core of precedent, analysis and idiom.
The purpose of this article is to examine critically these decisions and to explore whether there is any rational basis for limiting to one sector of the media the legislature's power to impose access regulation. The article takes the position that the Court has pursued the right path for the wrong reasons. There is a powerful rationality underlying the current decision to restrict regulatory authority to broadcasting, but it is not, as is commonly supposed, that broadcasting is somehow different in principle from the print media and that it therefore is not deserving of equivalent first amendment treatment. As will be discussed in section I, the Court's attempt to distinguish broadcasting on the basis of its dependence on scarce resources (the electromagnetic spectrum) is unpersuasive; moreover, whatever validity the distinction may once have had is now being undercut by the advance of new technology in the form of cable television. Further, other possible points of distinction that may be raised, such as the broadcasting industry's high level of concentration and television's purported special impact on its viewers, do not presently justify the different first amendment treatment. For reasons that will be developed in section II, access regulation has been treated differently in the context of broadcasting than it has in that of the print media largely because we have long assumed that in some undefined way broadcasting is, in fact, different. Rather than isolate broadcasting from our constitutional traditions, however, the Court should now acknowledge that for first amendment purposes broadcasting is not fundamentally different from the print media. Such an admission would not compel the Court either to permit access regulation throughout the press or to disallow it entirely. There is, we shall see, an alternative solution.
There has recently been a dramatic outpouring of articles addressing the issues associated with access regulation in the press. This literature demonstrates the dual constitutional nature of regulation: It can be at once a valuable, indeed essential, means of redressing the serious inequality in speech opportunities that exists today within the mass media and a dangerous deviation from our historical commitment to a free and unfettered press. The problem, therefore, is formulating a constitutional approach that captures the benefits of access regulation yet still minimizes its potential excesses. These first amendment goals, it will be argued, can be achieved by permitting legislative access regulation but sharply restricting it to only one segment of the mass media, leaving the choice of the area of regulation to Congress. Without adequately explaining or perhaps even comprehending its decisions, the Supreme Court has actually reached the constitutionally correct result in refusing to permit government regulation of the print media, but has done this only because Congress had already chosen to regulate the broadcast media.
Communications Law | First Amendment | Law
Lee C. Bollinger,
Freedom of the Press and Public Access: Toward a Theory of Partial Regulation of the Mass Media,
Mich. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/4131