William E. Lee, a professor in the Grady College of Journalism and Mass Communication, recently published “Books, Video Games, and Foul-Mouthed Hollywood Glitteratae: The Supreme Court and the Technology-Neutral Interpretation of the First Amendment” in the Columbia Science and Technology Law Review, a leading law and technology journal. In this interview with Columns, Lee discusses recent U.S. Supreme Court rulings concerning communication technologies.
Columns: Does the First Amendment apply equally to all methods of communication?
Lee: Members of the Supreme Court sharply disagree about the First Amendment’s protection of different communication media. Consequently, the court’s cases involving content-regulation tied to a communication technology are a doctrinal mess.
One line of cases, which I denoted as technology based, emphasizes the “peculiar problems” of a method of communication as justification for content-based regulation. Foremost in this line of cases is FCC v. Pacifica Foundation, where the court upheld broadcast content regulations that are unacceptable in other media.
A second line of cases, denoted as technology neutral, posits that the First Amendment’s hostility to content regulation overrides legislative claims about the distinctive qualities of a communication medium.
The most contemporary example of this type of case is Brown v. Entertainment Merchants Association, where the court in 2011 rejected California’s assertion that the interactive nature of video games justified restricting children’s access to violent video games. In the second line of cases, claims about “peculiar problems” are pushed to the background, and the focus is on basic principles such as the invalidity of content discrimination. Thus, Brown is not truly a video game decision; it is a decision about the constitutionally protected status of violent portrayals.
Columns: In your article you claim that judges are ill-equipped to assess rapidly changing media markets. Why?
Lee: Developments in e-book technology are changing what it means to “read a book.”
Enhanced e-books now allow readers of fictional works to interact with the storyline and influence the course of events in ways never possible in print. These interactive
e-books blur the distinction between “books” and “video games.” Also, e-book publishers increasingly are embedding video, audio and other content within e-books. Text is merely one component of a larger multimedia experience in an enhanced e-book.
If you can buy something the seller calls a “book,” but you can read it on a digital device, and the text is interspersed with videos and is hyperlinked to allow you to skip around at will, how is it different from an app or a website?
Should judicial assessment of the constitutional status of e-books focus on their similarity to traditional books, their similarity to other media such as video games or whether they are delivered electronically? Any assessment of the characteristics of a rapidly evolving medium such as e-books is likely to be unstable.
Perhaps most importantly, the members of the court have no principled methodology for assessing the “peculiar problems” of a communication technology. Instead, they offer conclusory statements that reflect the weight of other constitutional considerations entirely—considerations such as judicial deference to the legislature on one hand or the inherently suspect nature of content-based regulations on the other. And, as the case of broadcasting reveals, it is very difficult for the court to acknowledge marketplace changes that undercut the validity of earlier conclusions about a medium.
Columns: What about broadcasting is so troubling to the Supreme Court?
Lee: In the 1978 Pacifica case, the court upheld the FCC’s authority to punish broadcast indecency in part because of broadcasting’s “unique accessibility to children.” The unstated premise was that parents do not adequately supervise children’s in-home consumption of broadcast media. In 2012’s Fox Broadcasting case, broadcasters claimed the media landscape had changed dramatically since 1978, thoroughly undermining Pacifica. Broadcasters argued that children today access a wide range of media outlets, such as cable, featuring sexually explicit content; at the same time, the V-chip and other technologies allow parents to assert more control than was imaginable in 1978.
Despite all the arguments about the continuing validity of Pacifica, the court decided Fox Broadcasting on due process grounds, avoiding any resolution of the First Amendment questions. Even if the court had addressed the First Amendment, there are not five votes to overturn Pacifica. A majority of the court believes there are social expectations or community standards that have grown up around broadcasting. Several justices during the Fox Broadcasting oral argument feared the prospect of broadcasters unchained from government regulation. Simply stated, broadcasters who deviate from majoritarian standards do not deserve or cannot be trusted with full First Amendment protection. This is a startling proposition given the protection afforded the members of the Westboro Baptist Church (the funeral picketers) and myriad other speakers who deviate from social norms.