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Getting Beyond Scarcity: A New Paradigm for Assessing the Constitutionality of Broadcast Regulation |
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Charles W. Logan |
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| For years broadcast stations have been subject to a range of government regulation that calls on them to act as public trustees of the airwaves. The Supreme Court has upheld this regulatory regime under the First Amendment primarily on the grounds that broadcast frequencies are a scarce resource, i.e., there are more individuals who want to broadcast than there are frequencies available. But scholars have long criticized this rationale for giving broadcasters a lower level of First Amendment protection than other media, which similarly rely on scarce resources. This Article seeks to go beyond the scarcity rationale and place broadcast regulation on firmer First Amendment footing. It finds a doctrinal basis for upholding broadcast regulation under the Court's public forum doctrine. It then explores two theoretical justifications for this result. The first derives from a view of the First Amendment that permits the government to take an active role in ensuring a robust and open debate on public issues. The second involves a quid pro quo theory, under which broadcasters are granted valuable rights to use the spectrum on the condition that they satisfy certain public interest obligations. | |
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Copyright
© 1997 by California Law Review, Inc. |
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