It is illegal to speak over the airwaves without a broadcast license. The FCC grants those licenses, and decides whether they will be renewed, on the basis of a vague "public interest" standard. The resulting system of broadcast regulation conflicts, starkly and gratuitously, with ordinary free speech philosophy. In this Article, the author argues that that inconsistency is crucially linked to inadequacies in free speech theory itself Conventional free speech theory ignores the extent to which imbalances of private power limit freedom of expression. It presupposes that public discourse takes place on a rational plane. The author explores the link between the philosophical failings of broadcast regulation and the empirical failings offree speech theory by identifying competing legal visions that underlie discussions of broadcasting and freedom of speech. The first of these visions, which forms the bases for ordinary free-speech philosophy, emphasizes hard-edged rules, individualism, a belief in overall private autonomy, and a sharp public-private distinction. The second, at the heart of our broadcast regulatory system, emphasizes situationally sensitive standards, altruism, the pervasive role of the government in structuring private ordering, and the pervasiveness of dependence and constraint. These competing visions, the author submits, are fundamentally irreconcilable; our speech regulatory law is driven by the contradiction between them.
Communications Law | First Amendment | Law
Jonathan Weinberg, Broadcasting and Speech, 81 Cal. L. Rev. 1101 (1993). doi: 10.2307/3480917