FREEDOM OF THE PRESS (Update 2)

The first amendment sets forth the press clause in the same breath that announces the freedom of speech. The Supreme Court generally has rejected the notion that these provisions have separate and independent meanings, especially when asked to give the press a privileged status reflecting its unique role in facilitating informed self-governance. Although the press may not have a preferred position in the First Amendment matrix, it nonetheless has a status distinguishable from speech and is governed by a body of principles reflecting this distinction.

Freedom of the press, in its modern sense, is not a function of a uniform principle governing all communications media. As new communications technologies have evolved, First Amendment analysis has focused on the unique characteristics and perils that each medium possesses and creates. As the Court initially put it in Joseph Burstyn, Inc. v. Wilson (1952), a given medium is not "necessarily subject to the precise rules governing any other particular method of expression. Each method tends to present its own peculiar problems." This decision and other rulings over the last half of the twentieth century reflect the view of Justice robert h. jackson that "[t]he moving picture screen, the radio, the newspaper, the handbill, the sound truck and the street corner orator have differing natures, values, abuses and dangers. Each … is a law unto itself."

Within this medium-specific constitutional framework, the editorial freedom of publishers is most protected. Striking down a right of reply statute governing newspapers, in miami herald publishing co. v. tornillo (1974), the Court found it inconsistent "with First Amendment guarantees of a free press as they have evolved to this time." A similar law governing broadcasting had been upheld in red lion broadcasting co. v. fcc (1969). Broadcasting was distinguished on grounds that the medium uses a scarce resource to disseminate its signals. Because there are more persons wanting to broadcast than frequencies to allocate, the Court found it "idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish."

The wisdom of medium-specific regulation increasingly is challenged by growth in technology. With print and electronic media crossing into each other's domains, trading upon the same methods of distribution, and blurring distinctions of form, conventional constitutional thinking confronts an era of rapidly changing circumstance. The phenomenon of convergence—as televisions, telephones, and computers create networked possibilities for processing and transmitting voice, video, and data—presents particular risks to the established analytical order. Legal developments over the past decade have reflected a limited awareness of this reality. Following decades of criticism, the Federal Communications Commission (FCC) in 1987 abandoned the scarcity premise that had been the basis for much content regulation in broadcasting including the fairness doctrine. Reasoning "that the role of the electronic press in our society is the same as that of the printed press," the FCC concluded "that full First Amendment protections against content regulation should apply to the electronic and the printed press."

Administrative repudiation of the scarcity premise has not prefaced constitutional redirection. In metro broadcasting, inc. v. fcc (1990), the Court reaffirmed the scarcity premise in upholding minority preferences in the broadcast licensing process. Although the affirmative action aspects of Metro Broadcasting were overruled a few years later, the Court has continued to reference the scarcity premise in broadcasting. Kindred concepts have extended to other electronic media. In turner broadcasting system, inc. v. fcc (1997), the Court upheld a federal law requiring cable television operators to carry the signals of local broadcasters. Accepting Congress's concern that cable operators might use their economic power to the detriment of local broadcasting's viability, the Court in an earlier decision had stressed their "gatekeeping" function in selecting the programs they disseminate. Transcending the notion of scarcity and its derivatives, as a constitutional reference point for broadcasting in particular, is what the Turner Court cites as a "history of extensive regulation of the … medium." Assuming that the future of media is defined by convergence, this premise heralds a broad spectrum First Amendment competition between traditions of editorial freedom and regulation.

" must carry " laws, like fairness obligations, represent an official content diversification scheme. Such methods exist within a regulatory world also populated by medium-specific content restrictive regimens. In federal communications commission v. pacifica foundation (1978), the Court upheld the FCC's power to regulate the broadcast of "patently offensive sexual and excretory language." The prohibition was justified on grounds that broadcasting was a pervasive and intrusive medium easily accessible to children. Although indecency regulation has expanded in the field of broadcasting, it generally has not extended into other media contexts. Because cable television typically provides viewers with greater control over programming, through subscription or blocking technology, the transferability of the Pacifica premise has been limited. Likewise, in Sable Communications of California, Inc. v. FCC (1989), the Court invalidated a congressional prohibition of dial-a-porn services. Because consumers of these services have to take affirmative steps to obtain them, the Court distinguished indecent telephone communications from broadcast signals that may take a person "by surprise." Safeguards in the form of access codes, credit card payment, and scrambling rules, moreover, minimize the problem of easy availability to children.

Reviewing "the vast democratic fora of the Internet," the Court in Reno v. American Civil Liberties Union (1997) identified a multidimensional medium characterized by "traditional print and news services, … audio, video, and still images, as well as interactive, real-time dialogue." Against this backdrop, the Court determined that "our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium." Even as it acknowledged the phenomenon of convergence, interactivity, and choice in the internet context, the Court reaffirmed its investment in medium specific analysis. Rather than responding to a general media universe comprising interacting and complementary parts, First Amendment principle remains a function of microcosmic form and perspective.

With media evolving toward common attributes and capabilities, constitutional attention to unique characteristics is not without peril. To the extent that communications technology affords expanding opportunities for interactivity and choice, it redefines a mass media society accustomed to editorial centralization and one-way information flow. Insofar as technology enables consumers to avoid what offends them, individual choice may achieve the results of official control without taxing the interests of expressive pluralism. Within this context of change, regulatory intervention to facilitate diversity (or shield from its excesses) seems more likely to be justified on the basis of habit and custom rather than reason. Because methodologies of electronic communications tend to be the least constitutionally protected, even as they have emerged as the dominant media, it is not yet clear whether a First Amendment model based on market liberty or managed care will prevail. At stake as the republic progresses into its third century, however, is whether freedom of the press ultimately accounts for original notions of autonomous judgment or more recent traditions of authoritative selection.

Donald E. Lively
(2000)

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