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Communications and Society Program
On Hooks and Ladders
On Hooks and Ladders
Monroe E. Price
Professor of Law
Benjamin N. Cardozo School of Law
Yeshiva University
I want to suggest a game called "Hooks and Ladders" to help understand the constitutional issues involved in regulating the media. The game is a labeling game. There are hooks, namely the legal bases by which various media have been described and the characteristics imputed them to permit regulation. Then there are ladders, or the societal justifications for the actual imposition of regulation.
"Scarcity" is a hook. "Enriching the public debate" is a ladder.
"Pervasiveness" is a hook. "Protecting our children from indecent programming" is a ladder.
The purpose of this short paper is to separate out hooks and ladders, constitutional prerequisites from social justifications. More important, the purpose is not to say whether Red Lion (Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 [1969], the decision on which the "scarcity doctrine" is based) is right or wrong, but rather to: (a) understand what function "scarcity" played in permitting regulation (why we relied on that hook); (b) suggest the kinds of constitutionally interesting alternative justifications (ladders) that might be beneath the surface; and (c) place all this in a slightly international perspective.
The argument could be stated as follows: The existence of the "scarcity" basis for regulating the electronic media was-and remains-a wonderful convenience. It was never (here I am indulging in some hyperbole) the real reason for restrictions, but was a seemingly neutral justification and one that sounded plausible. As the doctrine of "scarcity" becomes more and more the subject of attack, even ridicule and contempt, it is important to see what functions the doctrine played, what rationales it masked, and what is likely to emerge in its absence.
One could look at Justice Breyer's view in Denver Area (Denver Area Educational Telecommunications Consortium, Inc. v. FCC, 116 S.Ct. 2374 [1986]) essentially as an effort to move the debate from hooks to ladders, from the jurisprudence of categories to a focus on social context.
Another way to put the point is as follows: much of the debate is over what the real world is like. What are the factual premises that underlie constitutional justification? How do we know whether something is "scarce" or whether children are "harmed" or whether television is actually peculiarly "invasive"? Because facts are often taken to be true when there is alarmingly little basis for doing so (or because some institutions are privileged to make something true by saying it's true), legal justifications that are founded on such facts are likely to be soft and imperfect themselves.
The Functions of the Scarcity Doctrine
Perhaps the economists (or some of them) are right when they say that "scarcity" either never exists or, in some meaningless form, always exists. At any rate, the scarcity basis for constitutional regulation of broadcasting has had a relatively long life. Why has that been the case? What functions does the scarcity doctrine perform?
1. Red Lion v. Tornillo. The doctrine, as it was developed, famously allowed judges to distinguish between the world of Red Lion and the world of Tornillo (Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 [1974]), between electronic media and newspapers, between radio and television on the one hand and newspapers on the other.
This was a special gift of the scarcity doctrine, as it came to be understood. It was a gift because the doctrine provided the idea of a bright line between media that seemed very different intuitively. Television and radio seemed so much an entertainment medium, so different historically from newspapers in their patterns of use and enjoyment. It would be hard to turn these differences into constitutional doctrine, but to an average citizen (and to the industry for its first fifty years), the distinction seemed compelling. After all, why else were these new guys licensed, and why else did they have to go through an elaborate process of saying what they were going to do? Clearly they were different.
There was another advantage: the doctrine placed the powerful and relatively independent newspapers on the nonregulatory side of the line and, again, for the first fifty years of radio regulation, the newspapers probably did not complain too much.
2. A temporary measure. The scarcity doctrine was useful because it had or has the illusion of temporariness. It suggested that regulation is justified only as long as there is scarcity. Scarcity is curable. And it contained the promise that is now coming to be fulfilled (or to haunt): that regulation will disappear when scarcity does. Radio will become like newspapers. To the extent that "scarcity" was not really the rock-bottom reason for regulation or justification for regulation, that promise is deceptive.
3. An easy out. The scarcity doctrine was especially comforting, because it allowed avoidance of the very hardest questions, the very questions that are facing policymakers today. How do you secure a ladder when you're not sure about the hooks? What was it about the relationship between media and society that permits or requires government to intervene (and in a way that is consistent with the First Amendment)?
Retaining the Scarcity Doctrine
and Searching for Other Hooks
Because of its important functions, inevitably, there are and will be efforts to redefine "scarcity" and shore up the doctrine, adapting it to new technologies.
1. Turner I. In this case (Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 [1994]), the Supreme Court developed a "bottleneck" approach that suggests that cable television is susceptible to some forms of regulation that are related to scarcity (though in a different guise).
2. Turner II. Scarcity might be redefined in terms of patterns of dominance: what is scarce is not spectrum, but preferred channels in terms of reaching audience. In Turner II (Turner Broadcasting System v. FCC, 520 U.S. 180 [1997]), Justice Kennedy talks about the anticompetitive function of must-carry rules. Somewhere, there's a relationship between old ideas of scarcity and new ones that look at industry structure. This is not technological scarcity, but economic power. Of course, here, it may be more difficult to distinguish broadcasting from other media.
3. Reno. The other hooks defined in Reno (Reno v. ACLU, 117 S.Ct. 2329 [1997]) are, of course, "pervasiveness" and "history of regulation." Probably "frequency as government property" is a hook. "Public forum" may also be a hook (historically devoted to common purposes).
The Abyss on the Other Side of Scarcity:
Looking Only at Ladders
If scarcity diminishes as the characteristic and principal mode of justifying government intervention, what will stand in its place? Or, what has always been there, beneath the surface, beneath this convenient justification?
1. Pacifica and the power of the medium. Quite well known are the arguments developed in Pacifica (FCC v. Pacifica Foundation, 438 U.S. 726 [1978]) about broadcasting's invasiveness and unique availability to children, in a sense, about the power of the medium. Perhaps this is a ladder, a social need to regulate rather than a constitutional basis for regulation.
It is for this reason that pervasiveness, or unique accessibility, is such a potent justification that it bears its own critique. Beyond the facts of Pacifica itself, there is a view that pictures inhabit a different constitutional domain from print or speech. Certainly, world history treats images as having a magical sway that is different from that of the printed word. This is not the usual explanation of Pacifica, but it lies somewhere at its heart even though it is a radio case.
2. Children and public health. If one looks back at the history of regulation and federal intervention, quackery and public health was there from the beginning. One could say-tobacco is among the most sophisticated examples here-that what is changing is our notion of public health (including mental health and the mental health of children). Notions of deception, notions of protection, notions of impact-all these are changing and generally expanding. The question, rarely asked, is whether public health is the new mode of justifying regulation. (The V-chip debate could be said to be really about public health.)
The limits here involve our knowledge base (what I referred to above as the facts about the real world that underlie constitutional doctrine). The tobacco wars are about this question, in part. So are the indecency battles.
At the heart of the point of view of the Religious Right, the Moral Majority, and others is a broader notion of what constitutes public health and a greater confidence in the relationship between certain kinds of programming and the public health of children.
3. The architecture of the electoral process or the public sphere. There is some embedded power in the state legislatures and in the federal government to establish the machinery of elections-the infrastructure of our system. Some aspects of this problem are obvious, such as establishment of the prerequisites for candidacy, including number of signatures to get on a ballot, age, residence, etc. Almost wholly unexplored is the extent to which, and tools by which, ideas of electoral architecture can be associated with regulation of the press. It is quite interesting that much of the assistance given by U.S. entities to transitional societies (e.g., the post-Soviet countries) is very careful and thorough in terms of how broadcasting time is made available to political candidates.
Obviously, this issue is deeply involved in much more than the regulation of rates and access by political candidates to licensed radio and television broadcasters. I wouldn't want to make too much of the constitutionality of restrictions on campaigning within fifty yards of a polling booth, but it's worth trying to consider a jurisprudence of democratic election administration that has nothing to do with scarcity.
Related to this issue is the increasingly ubiquitous discussion of the "public sphere." Assuming that an active public sphere is necessary for the development of a healthy democratic society, the question is whether state regulation or intervention can provide the conditions for the existence of such a sphere. Morsels of American policy such as the public access doctrine seem addressed at this notion of a public sphere.
Among the questions-which cut across all elements of the media-are: timing of endorsements, limits on advertising, truthfulness in advertising, objectivity in covering candidates, and relationship to debates.
National Identity
Here's a puzzling question. Almost all countries-including Western democracies-think that issues of national identity justify regulation. It is commonly thought that this is not the case in the United States and should not be. It is worth examining this distinction.
First, there are some strains of national identity regulation in the United States. Section 310 of the Communications Act of 1934 limits the extent of foreign ownership of broadcast licenses issued by the Federal Communications Commission (FCC). Currently, there is even a debate over whether a direct broadcast satellite (DBS) provider must comply with the requirements of Section 310.
Second, the United States has not really been tested. We have not, in the television broadcast era, been under any sort of assault, or perceived ourselves to be under any ideological external assault that had the purpose or impact of weakening our national identity. At such times when we have perceived ourselves as under attack (as in the period after World War I and in the 1950s), in fact, formal and informal regulatory influences on the media were promptly enacted or less formally put into place.
Third, I would argue that we are undergoing a bit of a national identity crisis, but we lump it under the rubric of sex and violence. We can't blame it-as the Canadians and French and others do-on "the United States," but we can blame it on "Hollywood." If one put advocates for the Communications Decency Act and "national identity" in the same room, they might agree on 80 percent of content they would want limited.
Regulation and the Public Interest
in a Global Community
For the last fifty years, the United States has been thought to be particularistic-one might say idiosyncratic-in terms of the shape and justification of media regulation, even with respect to regulation of the electronic media. The idea is that the United States is differentiated by the First Amendment and the interpretations that have developed around it.
Here, I want to make two points. The first point, looking backward, is that notwithstanding its rhetoric and constitutional framework, the U.S. approach has not been so different from that of other Western democracies. The legal analysis, the existence of the Constitution, the nature of the regulatory agency, the role of the courts-all these may be different from the U.K. or French or German framework. But at bottom (and this is a hypothesis subject to criticism), the results have been not too dissimilar. If anything, our programming may be more censored (for sexual content), than that of our continental counterparts. The main exception has to do with politics and the electoral system. European counterparts are far more subject to regulation in terms of political advertising and endorsements than are the U.S. licensees.
The second point is forward-looking. In a world where program producers are seeking a more extensive, more global market, private arrangements will tend to flatten out regulatory differences. In this global environment, the private players will more greatly value opportunities for entry than freedom from content restrictions.
Two trends ought to be taken into account by the President's Advisory Committee on the Public Interest Obligations of Digital Broadcasters and other policymakers:
1. Increasingly, arrangements for media regulation will be worked out multilaterally, or, at the least, consultation will exist, say between the FCC and others in the United States and bodies in the European Union and elsewhere.
2. For reasons of efficiency, private multinationals, which operate in many markets, will seek program approaches that are as transportable as possible; conversely, it will be in the interest of these private multinationals to have world regulatory patterns emerge that are as standardized as possible.
Conclusion
This article suggests that it is important to think about the distinction between what I've called the hooks and the ladders of constitutional doctrine relating to regulation of speech and the press. Are both hooks and ladders necessary? Do hooks of this sort exist only to support ladders? Is American constitutional doctrine, which may have been hook-oriented with respect to electronic media, in the process of shifting to ladders?
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