Today's abundance of media content choices and competing media outlets calls for equal treatment of all types of media speech under the First Amendment, which also means a more limited role for government regulation of media speech. Nevertheless, aspects of today's media marketplace are still subject to government speech restrictions based on decades-old assumptions about spectrum or other scarcities and their effects. Continued reliance on those old assumptions means that broadcast outlets as well as cable operators continue to receive a lesser degree of First Amendment protection than other types of media, while government assumes a larger degree of regulatory control than it ought.
Now with the opening today of the new term at the U.S. Supreme Court comes renewed optimism that those outdated assumptions will begin to be peeled away. In its new term, the Supreme Court will yet again be considering FCC v. Fox – the now famous "fleeting expletives" case. Last time around, the Court confined its ruling to Administrative Procedure Act (APA) issues raised by the litigation. This time, the Court is set to address First Amendment issues. In particular, FCC v. Fox II provides the Court the perfect opportunity to finally jettison the old spectrum scarcity doctrine and thereby end broadcast media's unequal First Amendment treatment.
The Supreme Court firmly enshrined the so-called "scarcity doctrine" into its jurisprudence in Red Lion Broadcasting Co. v. FCC (1969), and further expounded on it in FCC v. Pacifica (1978). The doctrine supplies the rationale for subjecting broadcast media to a lesser degree of protection, as broadcast media regulations are subjected only to intermediate-level scrutiny by courts instead of strict scrutiny.
The scarcity doctrine received its most recent judicial sanction from the U.S. Court of Appeals for the Third Circuit in its July 7 ruling in Prometheus v. FCC (2011). In Prometheus, the Third Circuit ruled that the FCC's 2008 order changing its newspaper/broadcast cross ownership rule failed to satisfy notice and comment requirements of the APA. But it upheld most other media cross-ownership rule changes adopted in the FCC's order. In regard to First Amendment questions raised by the FCC's media ownership rules, the Third Circuit's rationale for upholding government regulation of media that uses or involves electromagnetic spectrum rested squarely on the scarcity doctrine. In the Third Circuit's words, the scarcity doctrine "establishes that '[i]n light of [their] physical scarcity, Government allocation and regulation of broadcast frequencies are essential…'"
Consider also the following pronouncement by the Third Circuit in Prometheus: "The Supreme Court's justification for the scarcity doctrine remains as true today as it was in 2004 — indeed, in 1975 — 'many more people would like to access the [broadcast spectrum] than can be accommodated.'"
In reaching its decision, the Third Circuit's characterization of the scarcity doctrine's validity was certainly unnecessary. It is also entirely unconvincing. Whatever validity the factual assumptions supporting the doctrine may have once held, they have long since evaporated. In Prometheus, the Third Circuit compared the amount of spectrum to persons who it claims want broadcasting licenses. But if one compares that supposed scarcity with media channel substitutes now available, one should conclude that abundance exists, not scarcity.
The U.S. Court of Appeals for the Second Circuit seemed to get this point in its remand consideration of Fox v. FCC. The Second Circuit considered itself bound to follow Red Lion and Pacifica until the Supreme Court changes the law. It ultimately decided the First Amendment questions at issue on vagueness grounds, rather than scarcity doctrine. Nonetheless, the Second Circuit saw fit to observe:
The past thirty years has seen an explosion of media sources, and broadcast television has become only one voice in the chorus. Cable television is almost as pervasive as broadcast – almost 87 percent of households subscribe to a cable or satellite service – and most viewers can alternate between broadcast and non-broadcast channels with a click of their remote control... The internet, too, has become omnipresent, offering access to everything from viral videos to feature films and, yes, even broadcast television programs… As the FCC itself acknowledges, "[c]hildren today live in a media environment that is dramatically different from the one in which their parents and grandparents grew up decades ago."...Moreover, technological changes have given parents the ability to decide which programs they will permit their children to watch.
A hint that the Supreme Court may take the Second Circuit's observations into consideration and throw out the scarcity doctrine was provided in Fox v. FCC I by Justice Clarence Thomas's concurrence. In that opinion, Justice Thomas insisted that "[t]he extant facts that drove this Court to subject broadcasters to unique disfavor under the First Amendment simply do not exist today," citing, among others, FSF President Randolph May's 2009 Charleston Law Review article, "Charting a New Constitutional Jurisprudence for the Digital Age."
Given the extent of video competition provided by cable and DBS and the myriad of news outlets now provided through such video services, the Internet, and other alternatives – the Supreme Court should replace the scarcity doctrine with a media abundance doctrine and thereby subject media regulation to the same First Amendment standards that it subjects other restrictions on free speech.
And in a future case, the next step for the Supreme Court would be to revisit and revoke the so-called cable "bottleneck" rationale, thereby eliminating cable's unequal treatment under the First Amendment. As I've explained in blog posts from May and July, and on several prior occasions, subjecting cable providers in today's competitive media market to intermediate-level scrutiny because of early and mid-1990s perceptions about cable bottlenecks makes no sense from a factual or First Amendment standpoint.
At the outset of the Supreme Court's 2011-2012 term, here's hoping that Fox v. FCC II will mark the beginning of a constitutional reckoning for free speech in the digital age.
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