The Internet and the First Amendment

BYU Studies Quarterly, 1987

Two principal pillars of media policy are communications and copyright law. In each discipline, there are pluralists who seek greater public access to the means of communications (communications policy pluralists) and communicative content (copyright pluralists). Historically, communications policy pluralists have sought government interventions in the marketplace in order to increase access to mass communications. Copyright pluralists, by contrast, have fought against regulatory interventions they argue unduly strengthen the rights of copyright holders to deny access to content. In pursuing these strategies, the pluralists have used First Amendment arguments that are in tension with each other and ultimately unavailing in the courts. These arguments, drawing on the rhetoric of free speech rights and values, shortchange the complexity of free speech interests at stake when the government reallocates speech opportunities. This article argues that only by abandoning traditional First ...

The Yale Law Journal, 1995

U. Pa. L. Rev., 2006

2007

Most law review articles are of interest only to a priesthood of scholars and law students, but occasionally one attains iconic status. Jerome Barron’s 1967 “Access to the Press—A New First Amendment Right” 1 is in that special category. Developed against the egalitarian background and political turmoil of the 1960s, and reflecting a growing awareness of the threat posed by media consolidation to a diverse “marketplace” of information and ideas, Barron’s article ambitiously proposed a constitutional right of public access not only to broadcast, but to print media. The Supreme Court’s decision in Red Lion Broadcasting Co. v. FCC two years later, upholding the Federal Communication Commission’s Fairness Doctrine, seemed to ratify Barron’s thesis. 2 But since Red Lion, the First Amendment right of access has not had a happy career in the courts. Columbia Broadcasting System, Inc. v. Democratic National Committee, just four years after Red Lion, rejected a constitutional or statutory ri...

Hastings Comm. & Ent. LJ, 1996

310 Hastings Comm/Ent LJ [Vol. 19:309 Introduction Last summer's district court decision in ACLUv. Reno,1 enjoining enforcement of the Communications Decency Act of 1996,2 was hailed by the on-line civil liberties community as "a resounding victory for First Amendment rights ...

The internet brings together, within a single vehicle, both the right to obtain as well as the right to express and broadcast information, opinions and ideas in various forms including writing, imagery, audio and video. 2 It provides the world with a comparatively inexpensive, accessible, "easy-entry way of sharing information and ideas," and facilitates freedom of expression by making information easily accessible. The internet has also seen to it that news is communicated across borders within seconds, businesses and companies carry out transactions with their clients online, 4 and its efficiency has seen it overtake traditional media as a means of conveying information. 5 1 Image available at

1983

FIRST AMENDMENT 165 the communications media, 3 however, has created a new situation; the Supreme Court has been forced to consider competing claims of first amendment rights. Those advocating a "right of access" 4 and those advocating a "freedom to exclude" 5 have both laid claim to first penal offense to be a "gangster"). Overbreadth may be challenged as a violation of equal protection. See L. TRIBE, AMERICAN CONSTITUTIONAL LAW § 16-4, at 999 (1978). 3. Due to technological, economic and political factors, see notes 164-66 infra, the supply of broadcast licenses is almost completely inelastic (i.e., the amount of goods is fixed in amount regardless of price. See P. SAMUELSON, ECONOMICS 377 (1980)). The price of a license, which may be as high as $220 million, see BROADCASTING, April 5, 1982, at 36, has placed broadcast speech out of the reach of all but a very small percentage of the population. Entry into the other mass media is not necessarily easier. Although entry barriers in print and cable may be solely economic, they seem sufficiently great to prohibit easy access by the vast majority of the public. See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 250 (1974) ("[economic and technological changes have] place[d] in a few hands the power to inform the American people and shape public opinion"); MAJORITY STAFF OF THE SUBCOMM. ON TELECOMMUNICATIONS , CONSUMER PROTECTION, AND FINANCE OF THE HOUSE COMM. ON ENERGY AND COMMERCE, 97th CONG., 1ST SESs., TELECOMMUNICATIONS IN TRANSITION: THE STATUS OF COMPETITION IN THE TELECOMMUNICATIONS INDUSTRY 307-90 (Comm. Print 1981) [hereinafter cited as HOUSE REPORT]. See generally B. COMPAINE, WHO OWNS THE MEDIA? (2d ed. 1982) for a review of the major participants in each medium; B. OWEN, ECONOMICS AND FREEDOM OF EXPRESSION (1975) for a discussion of the economics of the media marketplace. 4. The seminal article presenting the claim of access was Barron, Access to the

Journal of Media Law, 2020

The MIT Press eBooks, 2003

This analysis includes the text of footnotes but excludes the dissenting statement of Commissioner Rivera in Children's Television, 96 FCC2d at 634. " In fifteen instances, the words were used without any contextual idea; in four cases, the words referred to other ideas.