Many lawmakers and regulators are currently proposing the expansion of broadcast industry regulation. For example, fines have been greatly increased for â€œindecentâ€ programming on broadcast television and radio, and efforts are underway to extend indecency regulations to cover cable and satellite television. Meanwhile, some policymakers are advocating government regulation of â€œexcessively violentâ€ programming on both broadcast and pay TV. In my latest law review article, â€œWhy Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age,â€ I hope to show why these efforts are seriously misguided, likely unworkable, and almost certainly completely unconstitutional.
This 52-page article appears in the latest volume of the Catholic University Law Schoolâ€™s CommLaw Conspectus. The article can be found online here.
In this essay, I make the case that the radically unfair system of modern broadcast industry regulation must be completely abolished. â€œIf America is to have a consistent First Amendment in the Information Age,â€ I argue, â€œefforts to extend the broadcast regulatory regime must be halted and that regime must be relegated to the ash heap of history.â€ I go on to make the case against all the traditional broadcast industry regulatory rationales and conclude that: â€œthe traditional rationales for asymmetrical regulation of broadcasting -- scarcity, pervasiveness, and the public interest -- either no longer make sense or are increasingly impractical to enforce in an age of technological convergence and media abundance. Instead of resisting the inexorable movement toward media parity and a consistent First Amendment standard for the Information Age, policymakers should embrace these changes and focus on responding to the problem of objectionable content through education and empowerment-based strategies that enable families to craft their own household media standards.â€