The Electronic Media and the Flight from First Amendment Doctrine: Justice Breyer\u27s New Balancing Approach

Contemporary First Amendment issues in cases involving the electronic media transcend traditional conflicts between the government and the speaker. The speaker is not easy to identify. Listeners, programmer and medium operators or distributors all have competing claims to First Amendment protection. To determine whose interests shall prevail, courts increasingly seek a methodology that accounts for these warring interests. Justice Breyer, along with Justice Souter and, in some respects, Justice Stevens, have been instrumental in reviving balancing as a First Amendment approach in these situations. In two recent First Amendment cable television cases Turner Broadcasting System, Inc. v. FCC (Turner II) (1997), and Denver Area Educational Telecommunications Consortium, Inc. v. FCC (Denver Area) (1996), Justice Breyer has written influential opinions that use this new balancing test. Traditional balancing approaches focused on balancing the interest of government against the interest of the media owner. The new balancing casts a wider net and recognizes that, in the contemporary electronic media context, many speech interests seek access The new balancing analysis does not give primacy to one interest over another but instead seeks to account for the multiplicity of interests and to weigh the relative strength of the competing access interests. In short, the new balancing analysis highlights the entire gamut of interests in play

What Does the Fairness Doctrine Controversy Really Mean

In 1987, the FCC repealed broadcasting\u27s Fairness Doctrine. This longestablished Doctrine required broadcasters to adequately cover issues of public importance and to provide a balanced presentation of controversial viewpoints. Opponents of the Fairness Doctrine would make broadcasting fungible, in a first amendment sense, with the print media. But what distinguishes broadcasting from the print media is not the Fairness Doctrine, but licensing in the public interest. This Commentary contends that there is an inherent bedrock fairness principle rooted in the public interest standard of the Federal Communications Act of 1934. The public interest standard is an independent source for the obligation of broadcasters to provide vigorous debate on controversial public issues. Although broadcasters continue to serve, in theory, as licensees operating in the public interest, the FCC denies the existence of the bedrock content of that standard. The result is the present anomaly-licensing without obligation. In short, the present system of broadcast regulation makes no sense in the absence of an enforceable fairness principle

The Pentagon Papers Case and the Wikileaks Controversy: National Security and the First Amendment

This Essay focuses on two clashes between national security and the First Amendment - the Pentagon Papers case and the WikiLeaks controversy. The two cases are hardly exact parallels. In the Pentagon Papers case the government was seeking to enjoin publications, asking for the imposition of a prior restraint. In that context, the press received the benefit of the heavy presumption against prior restraints. In the WikiLeaks controversy, because the discussion centers on the possibility of a criminal prosecution against Julian Assange, there is no equivalent heavy presumption against such a prosecution. In each case, the actual leaker was arrested, but, in the Pentagon Papers case, the publishers were not prosecuted. Assange has not yet been the subject of a U.S. criminal prosecution, but it may happen. The newspaper press is obviously an addressee of the First Amendment, but an issue remains as to whether a website such as WikiLeaks is part of that press. Furthermore, Assange and WikiLeaks seek to challenge the very idea and practice of government secrets altogether. Such a claim is unlikely to receive full First Amendment protection

The Pentagon Papers Case and the Wikileaks Controversy: National Security and the First Amendment

This Essay focuses on two clashes between national security and the First Amendment - the Pentagon Papers case and the WikiLeaks controversy. The two cases are hardly exact parallels. In the Pentagon Papers case the government was seeking to enjoin publications, asking for the imposition of a prior restraint. In that context, the press received the benefit of the heavy presumption against prior restraints. In the WikiLeaks controversy, because the discussion centers on the possibility of a criminal prosecution against Julian Assange, there is no equivalent heavy presumption against such a prosecution. In each case, the actual leaker was arrested, but, in the Pentagon Papers case, the publishers were not prosecuted. Assange has not yet been the subject of a U.S. criminal prosecution, but it may happen. The newspaper press is obviously an addressee of the First Amendment, but an issue remains as to whether a website such as WikiLeaks is part of that press. Furthermore, Assange and WikiLeaks seek to challenge the very idea and practice of government secrets altogether. Such a claim is unlikely to receive full First Amendment protection

FCC v. Fox Television Stations and the FCC\u27s New Fleeting Expletive Policy

This Article focuses on the Supreme Court\u27s decision in FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800 (2009). In that case, the Supreme Court upheld an important change in the FCC indecency regulation. In the past, the FCC\u27s policy had been that the broadcast of a single expletive did not violate FCC indecency policy. In order for such fleeting expletives to be actionable, the FCC required that they had to be repetitive and gratuitous. But in 2004, in response to the use of some expletives by entertainers during the Golden Globe Awards, the FCC changed its policy and ruled that a single expletive could be actionable. The broadcasters affected by this change in policy petitioned the United States Court of Appeals for the Second Circuit for review of this change in policy on both constitutional and statutory grounds. A three-judge panel of the Second Circuit held, per Judge Pooler, two to one, that the FCC\u27s reversal of its fleeting expletives policy was arbitrary and capricious under the Administrative Procedure Act. Fox Television Stations, Inc. v. FCC, 489 F.3d 444 (2d Cir. 2007). Since the panel\u27s holding was based on a violation of a federal statute, the panel declined to rule on the First Amendment arguments of the broadcasters. But Judge Pooler\u27s opinion for the panel expressed sympathy for those arguments. The Supreme Court, per Justice Scalia, reversed and remanded the Second Circuit decision. The Supreme Court ruled, five to four, that the FCC\u27s change of policy had met the standard set by the Supreme Court in Motor Vehicle Manufacturers Association v. State Farm, 463 U.S. 29 (1983) for changes in administrative policy. Justice Scalia declined to pass on the First Amendment issues presented by the broadcasters although he observed that fleeting expletives were on the periphery of First Amendment concern. This Article analyzes Justice Scalia\u27s majority opinion, the concurrences of Justices Kennedy and Thomas, and the dissents of Justice Stevens for the indications they provide for ascertaining the Supreme Court\u27s position if the First Amendment validity of the FCC\u27s new fleeting expletive policy does come before the Court. This Article contends that behind Fox Television Station\u27s administrative law veil there is an intense First Amendment debate going on among the Justices concerning whether the FCC\u27s new policy on fleeting expletives violates the First Amendment. The Article concludes that a majority of the Court probably would support the FCC\u27s prior fleeting expletive policy which it describes as a sensible one. The Article also suggests the Court would probably uphold FCC indecency regulation in general despite its attendant vagueness and chilling effect infirmities. But he believes the First Amendment future of the FCC\u27s new fleeting expletive policy is more problematic