|Liberating Red Lion from the Glass Menagerie of Free Speech Jurisprudence|
Following the established protocol for loading old articles onto SSRN, I've posted Liberating Red Lion from the Glass Menagerie of Free Speech Jurisprudence, 1 J. on Telecomms. & High Tech. L. 293 (2002):
Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), decreed a medium-specific approach to first amendment controversies involving radio and broadcast television. Although the Supreme Court has never applied Red Lion's scarcity rationale to any medium besides broadcasting, the Court has frequently resolved free speech disputes by drawing analogies to broadcasting.Postscript: I completed this article's analysis in Conduit-Based Regulation of Speech, 54 Duke L.J. 1359 (2005).
Red Lion declared that courts should condition constitutional protection on the technological and economic characteristics of a regulated communications conduit. It specifically concluded that broadcasting, as a conduit, merited less rigorous first amendment review because of scarcity, the historic extent of governmental involvement in broadcasting, and the ongoing public interest in access to this intensely regulated medium. Most judicial and academic objections to Red Lion have addressed scarcity. This article takes aim instead at Red Lion's prescription of conduit-specific first amendment review, urging close scrutiny of rules that putatively regulate the economic aspects of communications technology but ultimately constrict the content of mass communications.