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Communications and Society Program

Self-Regulation and the Public Interest

Self-Regulation and the Public Interest

Robert Corn-Revere
Partner
Hogan and Hartson, LLP

Can self-regulation of broadcasting serve the public interest? And if so, how should such a policy be implemented?

Before these questions can be addressed it is necessary to define terms. "Self-regulation," in this context, means no government regulation of broadcast content. In addition to eliminating rules that dictate programming decisions, this includes the absence of rules disguised as "policy statements" from government agencies, programming guidelines, quid pro quo deals, social contracts, social compacts, government-inspired industry "codes" or whatever else might be the current raised eyebrow technique for extracting concessions from licensed media.

With this understanding of self-regulation, the answer to the second question is straightforward: self-regulation should be implemented by ending direct and indirect government content controls.

The first question is not as easily answered, however, given the amorphous nature of the public interest standard. But experience suggests that the public is better served when electronic publishers are free to address audience interests. To the extent that some observers believe that important informational needs will be unmet when broadcasters merely respond to what interests the public, non-regulatory solutions provide the most direct and effective way of meeting these needs. Public broadcasting, the public library of the air, plays an important role by providing additional meritorious programming.

Just Say No!

The seemingly self-evident proposition that self-regulation eliminates government control over private editorial decisions is not always so clear to Washington policymakers. If it were, the question of how to implement self-regulation would not arise. Many of the current exemplars of "self-regulation" lack an important component: the "self." Accordingly, they do not serve as models for purposes of this analysis.

The V-chip requirement of the Telecommunications Act of 1996 is an example of "self-regulation" that involves a great deal of government involvement. Section 551 of the Act, which implements the V-chip and its television ratings scheme, is expressly described in the law as "voluntary." Although Section 551(b) empowers the Federal Communication Commission (FCC) to prescribe "guidelines and recommended procedures for the identification and rating of video programming that contains sexual, violent, and other indecent material about which parents should be informed before it is displayed to children,"1 that provision was to take effect only if the Commission determined (in consultation with "appropriate public interest groups and interested individuals from the private sector") that video programming distributors [had] not "established voluntary rules for rating video programming that . . . are acceptable to the Commission" and "agreed voluntarily to broadcast signals that contain ratings of such programming."2

After the first ratings system proposed by the television industry met with congressional opposition, the industry offered a revised proposal with more detailed program ratings. However, when the NBC television network declined to "volunteer" for the revised system, Senator John McCain, chairman of the Senate Commerce Committee, issued the following warning to the network:

If [NBC] fail[s] to heed this call [to join with the rest of the television industry] by remaining the one company in the industry that puts its own interests ahead of its viewers, I will pursue a series of alternative ways of safeguarding, by law and regulation, the interests that NBC refuses to safeguard voluntarily. These will include, but not be limited to, the legislation offered by Senator [Ernest] Hollings to channel violent programming to later hours, as well as urging the Federal Communications Commission to examine in a full evidentiary hearing the renewal application of any television station not implementing the revised TV ratings system.3

After confirming that the modified ratings system followed "the threat of legislation," Senator McCain told the Washington Post that the system "was voluntary in that we [in Congress] did not dictate the terms of the agreement, and, yes, we expect everyone to comply with it."4 The FCC approved the revised ratings system and technical rules in March 1998.5 Ted Turner best described the nature of the V-chip affair: "We don't really have any choice. We're voluntarily having to comply."6

As this example demonstrates, self-regulation can be a tricky concept in the context of media regulation, because broadcasters periodically must seek license renewal and other approvals from the FCC.7 Most such cases go unchallenged, perhaps for the same reason the government has leverage in the first place: Issues may come and go, but the power of the licensing agency always looms large in the life of the licensee. Accordingly, the misnomer of "self-regulation" persists.

Yet where such tactics are subjected to judicial scrutiny, government assertions of noninvolvement in program regulation wear quite thin. For example, the U.S. Court of Appeals for the D.C. Circuit struck down a requirement that noncommercial radio stations make audio tapes of programs in which "issues of public importance" were presented. It found that both commercial and noncommercial broadcasters are subject to "a variety of sub silentio pressures and 'raised eyebrow' regulation of program content." Accordingly, it said, even a seemingly neutral regulation could be invalid to the extent it increases the likelihood that broadcasters "will censor themselves to avoid official pressure and regulation."8 As the D.C. Circuit noted in another case, "[t]alk of 'responsibility' of a broadcaster in [a licensing proceeding] is simply a euphemism for self-censorship. It is an attempt to shift the onus of action against speech from the Commission to the broadcaster, but it seeks the same result-suppression of certain views and arguments."9

Similarly, a federal district court struck down the so-called "family viewing policy" adopted in the mid-1970s, rejecting the claim that it was merely "voluntary" self-regulation. The FCC had initiated a series of meetings with network, independent TV, and National Association of Broadcasters (NAB) officials "to serve as a catalyst for the achievement of meaningful self-regulatory reform."10 The FCC's message was amplified in speeches by its chairman to broadcast groups and in suggestions to the press that public hearings would be convened if voluntary action was not forthcoming.11 The FCC's "suggestions" were adopted by the networks and were to be enforced through an industry code. The self-regulation program was adopted just in time for the FCC to report to Congress on the status of televised sex and violence. In striking down the policy, the U.S. District Court for the Central District of California found that "[t]he existence of threats, and the attempted securing of commitments coupled with the promise to publicize noncompliance . . . constituted per se violations of the First Amendment."12 The court characterized the FCC's tactics as "backroom bludgeoning,"13 and although the District Court opinion was vacated on appeal on jurisdictional grounds, the Court of Appeals agreed that "the use of these techniques by the FCC presents serious issues involving the Constitution, the Communications Act and the Administrative Procedure Act."14

In short, these examples demonstrate what self-regulation is not. Efforts to promote official government policies through the use of threats, indirect pressure, or policy guidelines masquerading as industry "codes" are not self-regulation. For purposes of this analysis, the question remains whether the public interest will be served without the use of such pressure tactics.

Deregulation and the Public Interest

In the absence of regulation, will broadcasters provide public interest programming? At the outset it is important to note that this question contains two embedded assumptions-first, that the "public interest" concept is sufficiently defined to be understandable, and second, that regulation leads to the creation of more such programming, whatever it may be. The D.C. Circuit recently questioned the first assumption in the Equal Employment Opportunities context, noting that the FCC "never defines exactly what it means by 'diverse programming'" (a traditional public interest shibboleth), and described the government's formulation of the interest as "too abstract to be meaningful."15 Despite the ambiguity inherent in this concept, however, it is possible to examine the overall question in light of recent market and regulatory experience.

Inexplicably, most analyses of public interest programming focus solely on broadcast television, to the exclusion of other video sources. For example, the FCC's analysis of educational television in its proceeding on children's television expressly excluded programming on cable television systems and other subscription video services, such as direct-broadcast satellite systems.16 It did so despite the fact that the Supreme Court had a few weeks before the Children's Television Order accepted the FCC's argument that "[c]able television broadcasting . . . is as 'accessible to children' as over-the-air broadcasting, if not more so," and that most people receive television via cable, which provides entire networks dedicated to education.17 In addition, the FCC's Order did not mention VCRs, for which there is an abundant supply of educational programs, and which, by the Commission's own surveys, are present in 88 percent of American households. By some estimates, VCRs are present in 95 percent of homes with children.18

By broadening the assessment of "public interest" programming to include television as it exists in most American homes, the answer to the question of whether broadcasters will choose to provide public interest programming in the absence of regulation comes out quite differently than in most FCC studies. Put another way, to the extent the government asserts that cable television is "pervasive" when it seeks to regulate program content, it should not be able to deny that fact when seeking to assess what programs are available on TV. In this regard, Professor Eli Noam of Columbia University, in a recent study encompassing both broadcast and multichannel television sources, found that public interest programming on commercial television has been growing at a rapid rate.19 He defined such programs as those that "go beyond pure entertainment and provide a cultural, civic, informational, or educational function."20

Noam identified a significant number of cable television networks that provide what he considered to be public interest programming, including A&E Television, Bravo, C-SPAN, CNBC, CNN, Court TV, Discovery, Disney, The Fox News Channel, The History Channel, The Learning Channel, Mind Extension University, The Weather Channel, and others, including regional news channels. He also identified several channels, such as Black Entertainment Television, that address the interests of ethnic minorities. In total, the number of channels found to provide "primarily public interest programming" was considered to be quite large, representing almost half of the available cable channels considered in the study.21 Noam also attempted to quantify the growth rate of "public interest" programming availability, and found that the annual growth rates for various programming categories were "extraordinarily high," including 12.86 percent for news programs, 13 percent for documentary and magazine programs, 12.4 percent for health/medical programs, 12.7 percent for programs on science and nature, 8.8 percent for cultural programs, 7.62 percent for high-quality children's programming, 9.41 percent for programs devoted to education, 8.8 percent for religious programming, and 9.48 percent for foreign-language programming.22 Overall, he found that the share of public interest programming hours compared to total program hours grew from 28.2 percent to 43 percent between 1969 and 1997.23

The market for public interest programming is not limited to cable television. Noam also found that the news coverage of traditional local broadcasters "has expanded considerably in terms of hours," and that serious news magazine programs have proliferated on the broadcast networks.24 A study by A. H. Belo Corp., which owns seventeen full service television stations, found that the amount of time devoted by the four major broadcast network affiliates to news, public affairs, and educational programming in its seventeen markets ranged from 20 to 34 percent of the total broadcast schedule.25 In addition to traditional news programming, the NAB estimated that television stations devote approximately $6.85 billion to community service annually, including $4.6 billion in time for public service announcements, $2.1 billion raised for charitable causes, and $1.48 million in air time devoted to political debates, candidate forums, and convention coverage.26

Whatever the extent of such public service, it is far from clear that FCC programming mandates that require broadcasters to transmit a specified number of hours of "quality" programming will outperform the market in providing such fare. When in 1996 the FCC adopted a "guideline" that broadcasters should air three hours per week of educational programming, the record before the Commission was quite ambiguous about whether the rule would lead to an increase in the level of such programming. An academic researcher who completed surveys of forty-eight randomly selected television stations in 1992 and 1994 and submitted them to the FCC found that commercial stations reported airing on average 3.4 hours per week of regularly scheduled, standard-length educational programming (although the researcher deemed some of the claims of educational value for the shows "frivolous").27 A survey by the NAB in 1994 of 559 stations found that the average station aired almost four and one-third hours per week of educational and informational programming. Another survey by the Association of Local Television Stations, polling seventy-eight local independent stations, found that the average station aired 3.77 hours per week of educational programming in the first quarter of 1995.28

Although the FCC described the various surveys as "inconclusive,"29 it nevertheless adopted a rule that appeared to require-on average-less educational programming than broadcasters were already providing. The FCC could have adopted a number other than three hours for its programming guideline, of course, but this assumes that a rule that requires educational programming necessarily produces education. More importantly, it does not compare the results of bureaucratically driven demand with the demands of the consuming public for such programming. In this regard, it is all the more curious that the FCC overlooked the emergence of a market for educational programming on media that are not covered by the children's television rules.

It also is worth noting that political coverage by television stations generally has expanded when FCC rules governing such programs have been relaxed or repealed. The presidential debates were televised in 1960 only after the "equal opportunities" provisions of the Communications Act of 1934 were suspended.30 Over the years, televised debates became a fixture of political campaigns because the FCC expanded the news programming exemptions to the equal opportunities rule.31 More ambitious experiments with free candidate time were made possible during the 1996 election cycle because the FCC relaxed those rules, too.32 The Supreme Court recently acknowledged the intrusive nature of political broadcasting regulation (whether by government rule or constitutional litigation) in Arkansas Educational Television Commission v. Forbes, when it noted that the threat of a third-party access requirement had caused the cancellation of a political debate.33

Another way to address this question is to examine the postfairness doctrine experience. In 1975, fully 90 percent of radio stations in the United States were devoted to music formats. However, beginning in 1988 (the first year after the fairness doctrine was repealed), the number of stations in the informational programming category (including news, news/talk, talk, and public affairs formats) "rose meteorically."34 Between 1987 and 1995 the number of AM radio stations devoted to informational programming more than quadrupled (from about 7 percent to almost 30 percent of all stations), and the number of information-format FM stations more than tripled (from about 2 percent to approximately 7.4 percent).35

Market "Failure" and the Search for
"Quality" Programming

Despite the growth of news and informational formats in the absence of regulation, this trend has been criticized as leading to the proliferation of shallow or excessively partisan political talk shows. In this view, increased discussion of political issues on such media as talk radio may not adequately promote deliberative democracy or serve the public interest if it leads to political decisions based on "misleading or sensationalistic presentations of issues."36 Thus, specifically referring to talk radio, former FCC chairman Reed Hundt urged broadcast licensees to "emphasiz[e] accuracy and truth over a quest for ratings and advertising dollars" and added "we need solutions to public disinformation and misinformation."37 Among other things, Hundt suggested extending greater protections from litigation for broadcast journalists, while finding ways to ensure "fair" coverage and means "to assure the public that the news on TV will be impartial and that opinions on TV will be balanced."38 But as former FCC commissioner James H. Quello asked in response, "In the eyes of what beholder?"39

The question of whether or not an unregulated marketplace produces "enough" valuable speech, or conversely, "too much" worthless or harmful speech assumes an ability to determine the optimal amount separate from the voluntary choices of speakers and listeners.40 It presumes that the "public interest" should outweigh traditional First Amendment concepts of speaker and listener autonomy. Otherwise, as Thomas Krattenmaker and Lucas A. Powe framed the issue, "viewers will watch or read what critics and regulators like with insufficient frequency and will enjoy too often what commissioners and columnists abhor."41

Others, such as Cass Sunstein, would prefer to replace "consumer sovereignty" with the wise selection by regulators of such programming as "high-quality fare for children" and "public affairs programming."42 Such a selection may "depart[] with consumer satisfaction," according to Sunstein, but it would not really deny "choice."43 It would merely allow "democratic choices to make inroads on consumption choices."44 Such "democratic choices," in this view, would lead individuals to make wiser consumption choices. "If better options are put more regularly in view," Sunstein has written, "at least some people would be educated as a result" and "might be more favorably disposed toward programming dealing with public issues in a serious way."45

To assert that bureaucratically determined programming decisions do not deny "choice" is pure sophistry. All program selection involves "choice" by definition. The central question is whether the choice should be made individually (e.g., "consumer sovereignty") or collectively, by elected officials or appointed regulators. Traditional First Amendment doctrine considers it a "fixed star in our constitutional constellation" that "no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion."46 The First Amendment "presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all."47 No matter how well-intentioned the proposals to improve the quality of television may be, to the extent that they conflict with the choices of speakers and viewers, they are inconsistent with a concept of freedom in which "no one has a right to press even 'good' ideas on an unwilling recipient."48 Freedom of speech and of the press "may not be submitted to vote: they depend on the outcome of no elections."49

Theorists in this debate generally seek to avoid a head-on collision with such basic constitutional doctrine by framing the choice as if it were between democracy and consumerism.50 Thus, "democratic judgments" are placed in opposition to "consumption choices."51 Former FCC chairman Mark Fowler's unfortunate metaphor for television-a "toaster with pictures"-is frequently invoked, seemingly making the choice a simple one: If the First Amendment (along with the public interest standard of the Communications Act) was designed to promote the Madisonian value of deliberative democracy, should not proper constitutional analysis require an official preference for political speech over consumer culture?5253

This conception of the value of speech, however, treats the marketplace of ideas metaphor far too literally and sets up a simplistic dichotomy between consumers and voters.54 Certainly the "marketplace" includes commercial speech, popular culture, and entertainment, but it also includes the market for politics, news, education, high culture, and information.55 Alexander Meiklejohn wrote that political speech extends far beyond town hall debates to include literary and artistic expression.56 For that reason, the First Amendment forbids government from deciding what material citizens "shall read and see" or "distinguish[ing] between 'good' novels and 'bad' ones."57 For that matter, the First Amendment also bars the government from choosing policy papers from Washington think tanks for the reading pleasure of its citizens over trashy novels no matter how much such a selection may foster Madisonian values.58 Such choices can never be "delegated to any of the subordinate branches of government."59 The essential choice, then, is between "individual freedom of mind in preference to officially disciplined uniformity for which history indicates a disappointing and disastrous end."60

The assumption of some theorists is that democratic values and institutions will be strengthened if public interest regulation ensures that the public pays more attention of political debates and discussions, but that Madisonian goals would be betrayed in a world of limitless media choices because "consumption choices . . . disserve democratic ideals" where "people [can] screen out ideas, facts, or accounts of facts that they find disturbing."61 This assumes that truly democratic goals are promoted by encouraging (or forcing) people to pay attention to this season's political contest for a given office or to the issues of a current referendum. (But see A Clockwork Orange.)

Public Broadcasting and the Public Interest

The creation and funding of the public broadcasting system is the most direct way for the government to promote its vision of the public interest. It also is the least restrictive way. Unlike regulatory solutions, such subsidies promote democratic dialogue without infringing other constitutional values (unless the government seeks to use control over funding to benefit or burden particular speakers). Krattenmaker and Powe, among others, have noted that "to the extent the marketplace is perceived as impoverished, subsidies may be an effective way of correcting its inadequacies" so long as they are "true subsidies" rather than "extractions from media competitors."62

The challenge to public broadcasting is to find a reliable source for the subsidies it needs without having its editorial decisions compromised by political control. This is no small feat, but it is not substantively different from other regulatory questions. Those who argue that congress and the FCC should regulate commercial broadcasters because public broadcasting lacks adequate support fail to acknowledge that either approach requires the expenditure of political capital. It is beyond the scope of this paper to suggest a source of funding to support public broadcasting (e.g., through spectrum fees paid by commercial broadcasters, some other type of regulatory fee, or general revenues), but in the end, such decisions are little different from the decision to regulate. If Congress could muster the political will to pass a law requiring commercial broadcasters to provide free time for political candidates, and the FCC could adopt workable implementing rules, then the legislature similarly could adopt a means to provide permanent adequate funding for public broadcasting.

The more difficult issue involves avoiding political control over editorial decisions once funding has been provided. Public broadcasting historically has been a political battleground. Conservatives have charged that public broadcasting is biased toward the left; liberals have argued that it is influenced by corporate underwriting and pressure from conservative politicians.63 Patrick Buchanan, then an advisor to President Richard Nixon, classified liberal commentators on PBS variously as "definitely anti-administration," "definitely not pro-administration," and "unbalanced against us," and conservative commentators as "a fig leaf."64 Similarly, Clay T. Whitehead, the first director of the White House Office of Telecommunications Policy, told PBS officials that news commentary, "particularly from the Eastern intellectual establishment," would invite political attention.65 Accordingly, in February 1972, Whitehead informed Congress that the Nixon administration opposed any permanent financing for the Corporation for Public Broadcasting unless local public stations were given greater power to control programming.66 The administration had concluded that PBS should not be allowed to develop into a fourth network producing public affairs programming because of its belief that such programming would be hostile to administration policies.67 Such an approach to government subsidies of speech, and resulting implementing policies, has resulted in litigation over the extent to which the one who pays the piper may call the tune.68

Experience with speech subsidies highlights the risk inherent in more direct forms of regulation. If government cannot be trusted to fund supplemental programs without succumbing to the impulse to censor, it is even more threatening to notions of free speech to permit direct regulation of content. Government may have an important role to play in bringing informational, educational, and participatory opportunities to those least able to participate in democratic institutions. But if it cannot adhere to constitutional boundaries when it performs this role, there is little reason to believe it will show greater restraint if given more regulatory power.

Conclusion

"Self-regulation" is not a policy option that needs to be "implemented." Properly understood, self-regulation is the absence of government regulation, and the only "implementation" that is required is for the government to stop regulating the content of broadcast speech. When it has done so in the past, public interest programming has been provided to a willing audience. To whatever extent policymakers believe that the amount of public interest programming is deficient, however, the public broadcasting system can play an important role in providing additional meritorious programming.

Endnotes

1. Under this section, program ratings would be devised "on the basis of recommendations from an advisory committee established by the Commission," which would be composed of "parents, television programming producers, cable operators, appropriate public interest groups, and other interested individuals from the private sector." The FCC would provide staff and resources for the advisory committee.
2. 47 U.S.C., sec. 303(w).
3. Letter from Senator John McCain to Robert Wright, President and CEO of the National Broadcasting Company, 29 Sept. 1997.
4. Paul Farhi, "TV Ratings Agreement Reached," The Washington Post, 10 July 1997, A1
5. See Implementation of sec. 551 of the Telecommunications Act of 1996, Video Program Ratings, FCC 98-35 (released 13 March 1998); Implementation of Sections 551(c), (d), and (e) of the Telecommunications Act of 1996, Technical Requirements to Enable Blocking of Video Programming Based on Program Ratings FCC 98-36 (released 13 March 1998).
6. Garry Abrams, "Censor Chip?" California Law Business, 18 Mar. 1996, 20, 21.
7. See generally, Robert Corn-Revere, "Television Violence and the Limits of Voluntarism," Yale Journal on Regulation 12 (Winter 1995): 187.
8. Community Service Broadcasting of Mid-America, Inc. v. FCC, 593 F.2d 1102, 1116 (D.C. Cir. 1978) (en banc)
9. Anti-Defamation League of B'nai B'rith, South Pacific Southwest Regional Office v. FCC, 403 F.2d 169, 172 (D.C. Cir. 1967), cert. denied, 394 U.S. 30 (1969).
10. Report on the Broadcast of Violent, Indecent, and Obscene Material, 51 F.C.C. 2d 418, 420 (1975).
11. Writers Guild of America, West v. FCC, 423 F. Supp. 1064, 1098, 1105, 1117 (C.D. Cal. 1976), vacated and remanded on jurisdictional grounds sub nom. Writers Guild of America, West v. ABC, 609 F.2d 355 (9th Cir. 1979), cert. denied, 449 U.S. 824 (1980).
12. Writers Guild of America, West v. FCC, 1151.
13. Writers Guild of America, West v. FCC, 1142.
14. Writers Guild of America, West v. ABC, Inc., 609 F.2d at 365.
15. Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 354 (D.C. Cir. 1998). The court noted that "[a]ny real content-based definition of the term may well give rise to enormous tensions with the First Amendment."
16. Policy and Rules Concerning Children's Television Programming, 11 FCC Rcd. 10661, 10677, 10681 (1996) ("Children's Television Order").
17. Denver Area Educational Telecommunications Consortium, Inc. v. FCC, 116 S.Ct. 2374, 2386 (1996).
18. Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, 13 FCC Rcd. 1034, para. 103 (1998). See Ken Robinson, Telecommunications Policy Review, 8 Sept. 1996, 3.
19. Eli Noam, "Public Interest Programming by American Commercial Television," 39 (paper presented at the Future of Public TV conference, New York City, 6 March 1998). The study examined the growth of public interest programming available on cable television systems in New York City between 1969 and 1997. See "Role of Commercial TV in Public Interest Programming Hotly Debated," Communications Daily, 9 March 1998.
20. Noam, "Public Interest Programming," 1.
21. Noam, "Public Interest Programming," 44.
22. Noam, "Public Interest Programming," 41.
23. Noam, "Public Interest Programming," 43.
24. Noam, "Public Interest Programming," 42-43. Noam acknowledged that increased competition had led some news magazines to focus on more sensational subjects, particularly among syndicated "tabloid" shows, but found that this "pales in comparison" to the growth of serious news magazine programs on the networks.
25. The study measured broadcast time (discounted for commercials) devoted to newscasts, informational programs (exclusive of tabloid and talk shows), public affairs, and educational and religious programs in various markets during selected weeks in the period from November 1997 through January 1998. The total amount of such "public interest" programming in the seventeen markets was: Dallas-Ft. Worth (32 percent); Houston (26 percent); Seattle-Tacoma (27.1 percent); Sacramento (25.2 percent); St. Louis (25.8 percent); Portland, Ore. (26.4 percent); Charlotte, N.C. (27.7 percent); San Antonio (22.4 percent); Hampton-Norfolk, Va. (25.7 percent); New Orleans (26.4 percent); Santa Fe-Albuquerque (23.4 percent); Louisville, Ky. (23.6 percent); Boise, Idaho (24.4 percent); Honolulu (19.9 percent); Spokane (24.1 percent); Tucson (22.6 percent); and Tulsa (24.9 percent). When commercial time during public interest programming is counted as well, the total amount of time devoted to such programming increases by approximately 24 percent. See A. H. Belo Corp., Non-Entertainment Programming Study (1998).
26. See NAB, Bringing Community Service Home: A National Report on the Broadcast Industry's Community Service, April 1998.
27. Children's Television Order, 10677, 10679. Proponents of the rules often asserted that the amounts of programming devoted to education were inflated by outlandish claims regarding the instructional value of such programming as The Flintstones or The Jetsons. Such anecdotes were frequently repeated but never quantified. Moreover, broadcasters might be forgiven for some confusion in implementing the new requirements because Congress, in the legislative history of the Children's Television Act, listed shows such as The Smurfs and Pee Wee's Playhouse as programming that met the law's broad criteria for educational and informational programs. See Children's Television Act of 1989, S. Rep. No. 227, 101st Cong., 1st Sess. 7-8 (1989).
28. Children's Television Order, 10678.
29. Children's Television Order, 10676.
30. See Chisholm v. FCC, 538 F.2d 349 (D.C. Cir.), cert. denied, 429 U.S. 890 (1976).
31. Chisholm v. FCC; also see Henry Geller, 95 F.C.C.2d 1236 (1983), aff'd sub nom. League of Women Voters v. FCC, 731 F.2d 995 (D.C. Cir. 1984).
32. In re Requests of Fox Broad. Co., Pub. Broad. Serv., & Capital Cities/ABC, Inc., 11 FCC Rcd. 11, 101 (1996).
33. Arkansas Educational Television Commission v. Forbes, 118 S.Ct. 1633, 1643 (1998). (Such a result "does not promote speech but represses it.")
34. Thomas W. Hazlett, "Market Failure as a Justification to Regulate Broadcast Communications," in Rationales and Rationalizations, ed. by Robert Corn-Revere (Washington, D.C., Media Institute, 1997), 165. See also Thomas W. Hazlett and David W. Sosa, "Was the Fairness Doctrine a 'Chilling Effect'? Evidence from the Postregulation Radio Market," Journal of Legal Studies 26 (January 1997): 307.
35. Hazlett, "Market Failure as a Justification," 165.<
36. Cass Sunstein, "The First Amendment in Cyberspace," Yale Law Journal 104 (May 1995): 1757, 1785-1786.
37. Claudia Puig, "FCC Chief Wants Talk Radio Shows to Deal in 'True Facts,'" Gannett News Service, 25 Sept. 1994 (radio wire).
38. Reed Hundt, "Not So Fast," speech by the FCC chairman at the Museum of Television and Radio, New York City, 3 June 1997.
39. James H. Quello, "'Reeding' the First Amendment-A Disagreement," remarks by the commissioner before the Florida Association of Broadcasters, 26 June 1997. ("I see the Bill of Rights as a limitation upon government action; the Chairman sees it as a regulatory mission statement.") Such regulatory questions were explored in detail by the Commission when it decided to eliminate the fairness doctrine. See Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C. Cir. 1989), cert. denied, 493 U.S. 1019 (1990).
40. See Robert Post, "Equality and Autonomy in First Amendment Jurisprudence," Michigan Law Review 95 (1997): 1517, 1538. ("To cast the state as teacher is to permit the state to define the agenda and parameters of public debate; it is to presuppose an Archimedean point that stands outside of the processes of self-determination.") Despite its inability to pinpoint how much educational programming existed in the marketplace, the FCC's rules were premised on the assumption that there is "an underprovision of children's educational and informational television programming." Children's Television Order, 11 FCC Rcd., para. 34.
41. Thomas G. Krattenmaker and L. A. Powe, Jr., "Converging First Amendment Principles for Converging Communications Media," Yale Law Journal 104 (May 1995): 1719, 1725-1726.
42. Sunstein, "The First Amendment in Cyberspace," 1788. See also Owen Fiss, Liberalism Divided: Freedom of Speech and the Many Uses of State Power (Boulder: Westview Press, 1996), 21. ("[T]he approach I am advocating is not concerned with the speaker's autonomy, real or effective, but with the quality of public debate.")
43. Sunstein, "The First Amendment in Cyberspace," 1788. Sunstein has written that "[p]references that have adapted to an objectionable system cannot justify that system." Sunstein, The Partial Constitution (Cambridge: Harvard University Press, 1993), 221.
44. Sunstein, "The First Amendment in Cyberspace," 1790.
45. Sunstein, The Partial Constitution, 221.
46. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) ("Barnette").
47. United States v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y.), aff'd, 326 U.S. 1 (1943).
48. Rowan v. United States Post Office Dept., 397 U.S. 728, 738 (1970).
49. Barnette, 638.
50. See, e.g., Fiss, Liberalism Divided, 40. ("To be a consumer, even a sovereign one, is not to be a citizen.").
51. Sunstein, "The First Amendment in Cyberspace," 1790.
52. Sunstein, "The First Amendment in Cyberspace," 1787-1792.
53. Fiss, Liberalism Divided, 30. This statement directly confronts the Supreme Court's admonition in Buckley v. Valeo, 424 U.S. 1, 49 (1976), that such preferential treatment is "wholly foreign" to the First Amendment.
54. Sunstein, "The First Amendment in Cyberspace," 1780. ("[S]peech should not be treated as a simple commodity, especially in a period dominated by attention to sensationalistic scandals and low-quality fare.")
55. Max Lerner, "Some Reflections on The First Amendment in the Age of Paratroopers," Texas Law Review 68 (1990): 1127, 1134-35.
56. Alexander Meiklejohn, "The First Amendment is an Absolute," 1961 Sup. Ct. Rev. 245, 262.
57. Meiklejohn, "The First Amendment is an Absolute."
58. Sunstein, "The First Amendment in Cyberspace," 1780, n. 98. ("Perhaps those interested in Madisonian goals should focus on the entirety of the free speech market, seeing magazines, broadcasting, and even books as aspects of a single market, to be taken as a whole.")
59. Meiklejohn, "The First Amendment is an Absolute," 262.
60. Barnette, 637. See Post, "Equality and Autonomy in First Amendment Jurisprudence," 1540. (Such an approach "necessarily puts the state in the position of dictating to the people the outcome of their public deliberations.")
61. Sunstein, "The First Amendment in Cyberspace," 1786. See also 1788. ("A democratic citizenry armed with a constitutional guarantee of free speech need not see consumer sovereignty as its fundamental aspiration.")
62. Krattenmaker and Powe, "Converging First Amendment Principles," 1732. See Post, "Equality and Autonomy in First Amendment Jurisprudence," 1539. ("Certainly it is compatible with the free speech tradition for the state to act positively to subsidize and thereby to supplement and improve public discourse.") See also Rodney A. Smolla, "The Culture of Regulation," CommLaw Conspectus 5 (Summer 1997), 193, 202. Other theorists have suggested that the government could "subsidize those broadcasters whose programming it prefers, even if any such preference embodies content discrimination" (Sunstein, "The First Amendment in Cyberspace," 1798). See also Fiss, Liberalism Divided, 103. (Government must set the agenda for public discourse by making decisions "analogous to the judgments made by the great teachers of the universities of this nation.")
63. See generally, "The Future of Public Broadcasting," Comint 3 (Fall 1992), 1-32; Charles S. Clark, "Public Broadcasting," The CQ Researcher, 18 Sept. 1992, 812-814, 820-824.
64. Charles S. Clark, "Public Broadcasting," 822.
65. Charles S. Clark, "Public Broadcasting," 820.
66. Erwin G. Krasnow, Lawrence D. Longley, and Herbert A. Terry, The Politics of Broadcast Regulation 3d ed. (1982), 71.
67. Lucas A. Powe, Jr., American Broadcasting and the First Amendment (1987), 129. The concern ultimately led to President Nixon's veto of the public broadcasting authorization bill in June 1972. Buchanan, by all accounts, was characteristically blunt about the administration's intent. He reportedly told a public broadcasting executive at a cocktail party, "If you don't do the kind of programming we want, you won't get a fucking dime."
68. E.g., FCC v. League of Women Voters of California, 468 U.S. 364 (1984); and Community-Service Broadcasting of Mid-America v. FCC, 593 F.2d 1102 (D.C. Cir. 1978) (en banc). See also Accuracy in Media v. FCC, 521 F.2d 288, 291 (D.C. Cir. 1975) cert. denied, 425 U.S. 934 (1976). Compare to Turner Broadcasting System v. FCC, 114 S.Ct. at 2464, in which the government is foreclosed from using its financial support to gain leverage over any programming decisions. But see Finley v. National Endowment for the Arts, 118 S.Ct. 2168 (1998), which found that the government may require some additional non-dispositive criteria for issuing competitive grants for art.

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