The Regulation of Broadcasting
What are the freedom of expression implications of government’s regulation of broadcasting by private parties? (Government’s own broadcasting is just one type of government speech, a topic discussed in Chapter Five.) To get a handle on this question, we must distinguish between the two general government purposes that broadcast regulations reflect.
One purpose is that of allocating a scarce resource in economically viable units and then policing that allocation to prevent trespasses (broadcasting on another’s frequency). The second purpose is to allocate those frequencies in ways that produce preferred patterns of broadcast content -for example, content that is politically or culturally diverse, or politically balanced, or dedicated to “public service” items.The first purpose - the propertization of a resource - is an unremarkable Track Two purpose. We might analogize the situation to one in which the government is allocating land in its territories, land that in this case is useful, not for farming, ranching, or mining, but for a unique voice amplification resource. The land might be allocated on a first-come, first-served basis, with rules about how large a holding one can acquire and how its metes and bounds are to be established. Or government could auction the units of land to the highest bidders, or by lot. In any event, there is nothing special about the electronic spectrum that distinguishes broadcast frequencies from land. Although the frequencies, unlike land, have only one productive use, they are similar in all other respects relevant to allocation. Each alternative set of rules governing the allocation of broadcast frequencies will, of course, have different message effects. Unit size
in Roe v. Wade, 410 U.S. 113 (1973), entailed an affirmative obligation to provide abortion seekers with the necessary medical resources.
Maher v. Roe, 432 U.S. 464 (1977); Harris v. McRae, 448 U.S. 297 (1980). Police, prosecutorial, and judicial resources are indistinguishable from the medical resources insofar as governmental obligations go.21 I leave open here, as I did in Chapter Two, whether discrimination against the activity of speaking in general, as opposed to discrimination based on content, should be considered a Track Two or a Track One issue, although I believe the better argument is that it is a Track Two issue. See Chapter Two, p. 24 n. 24, supra.
I also express no view on whether government should be permitted to engage in content discrimination in the allocation of resources to protect the exercise of the right of freedom of expression when the discrimination is based on government hostility to the message, which message government believes to be immoral even though protected against government restriction by the right. For example, need government allocate the same resources to protect a Nazi march against reprisals that it allocates to protect a peace or civil rights march? This issue is of a piece with the Track Three issues raised in Chapter Five. rules, monopoly ownership rules, and the decision regarding whether to allocate by auction, lot, or squatting will each produce different classes of broadcasters saying different things to different audiences of different sizes. But the same is true of the property, contract, taxation, and other rules that allocate printing presses, ink, newsprint, and reporters’ services. The allocation of broadcast frequencies for nonmessage reasons is just one more Track Two matter and subject to the general analysis in Chapter Two.
Suppose, however, that government tailors its allocative rules and regulations with an eye to the message effects of its actions. Does government’s message-related purpose place its rules within Track One or Track Three? And is broadcasting special with respect to content regulation by the government?
At the end of Chapter Five I noted the theoretical difficulty in distinguishing Track One from Track Three.[232] Track One at its core deals with government’s penalizing speech based on its content, whereas Track Three at its core deals with government’s nonpunitive content-based allocations of resources and liberties to which persons have no preexisting rights.
To distinguish Track One from Track Three governmental acts, then, one needs a theory regarding which resources are held by persons as a matter of right against the government and which are subject to seizure by the government to promote its policies, including its communicative policies. (The distinction between punitive and nonpunitive governmental purposes can also be problematic in Track Three contexts, particularly those in which favored speakers are exempted from the time, place, and manner restrictions that govern nonfavored speakers.[233])If we treat the electronic spectrum as property that the government may rightly claim to own as an initial matter, then content-conscious government allocation of broadcast frequencies would appear to be a Track Three matter. If government may spend “its” money to subsidize particular educational, political, or artistic content, it should be able to allocate “its” frequencies to produce desired messages.
Is there anything special about broadcast frequencies insofar as contentbased regulations are concerned? For a long time the United States Supreme Court thought that the scarcity of those frequencies made their content-based allocation rules less problematic than they otherwise would have been.[234] Cable and satellite technologies have eviscerated any such scarcity rationale, though it is questionable whether scarcity could ever plausibly distinguish broadcast frequencies from other speech-related resources. Newsprint, ink, and printing presses are all scarce resources, yet no one thought that their scarcity justified government control of the content of newspapers, books, and magazines.
In any event, it is difficult today to argue that broadcast frequencies are scarce in any way that renders them uniquely subject to content control by government. Their freedom of expression analysis, then, turns entirely on whether the frequencies are ab initio government property, and, if so, what we conclude about Track Three in general.
IV.