Commercial Television, Consumer Sovereignty, and the First Amendment
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digitalcommons.nyls.edu Faculty Scholarship Articles & Chapters 2000 Selling the Market-Driven Message: Commercial Television, Consumer Sovereignty, and the First Amendment. David Chang New York Law School, [email protected] Follow this and additional works at: http://digitalcommons.nyls.edu/fac_articles_chapters Recommended Citation 85 Minn. L. Rev. 451 (2000-2001) This Article is brought to you for free and open access by the Faculty Scholarship at DigitalCommons@NYLS. It has been accepted for inclusion in Articles & Chapters by an authorized administrator of DigitalCommons@NYLS. Selling the Market-Driven Message: Commercial Television, Consumer Sovereignty, and the First Amendment David Changt I. Television Programming Decisions as Part of the First Amendment's "Freedom of Speech": The Conventional View .................................................. 467 A. In Congress and the FCC: "Editorial Discretion" and the "Fairness Doctrine" ..................................... .467 B. In the Supreme Court: "Editorial Discretion" and ''Must-Carry" Requirements ..................................... 4 70 C. Doctrinal Consequences of Viewing Television Programming Decisions as Not Part of"the Freedom of Speech": A Preliminary Discussion ....... 4 75 II. Television Programming Decisions and Consumer Sovereignty ..................................................................... 4 79 A. A Taxonomy of Actors in the Dissemination of Television Programming........................................... 480 B. Television Programmers as Rational Profit Maximizers in the Regime of Consumer Sovereignty ................................................................ 483 C. Alternative Views of the Television Programming Decision .............................................. 486 III. The Market-Driven Message and the Freedom of Speech ............................................................................. 489 A. Rupert Murdoch, Bill Clinton, and Martin Luther King: The Varieties of Communicative Intent......... 489 B. Do Choices to Sell the Market-Driven Message t Professor of Law, New York Law School; B.A. 1979, Haverford Col lege; J.D. 1982, Yale University. I would like to express deep appreciation for the inspirational teaching of the late Joseph Goldstein. His recent passing is a profound loss for all who care about the pursuit of truth and mutual under standing. I would also like to thank Camille Broussard of the New York Law School Library for her invaluable assistance, as well as Randolph Jonakait, Rick Matasar, Steve Newman, Isaac Paris, Edward A. Purcell, Jr., Joyce Sal talamachia, Ed Samuels, Michael Sinclair, Harry Wellington, and Donald Zeigler for their very helpful comments on earlier drafts. 451 452 MINNESOTA LAW REVIEW [Vol. 85:451 Deserve Constitutional Protection as Speech? ........ 495 1. Democratic Self-Governance Perspectives ........... 495 a. Republican Perspectives .................................. 502 b. Pluralist Perspectives ...................................... 507 2. Personal Fulfillment Perspectives ....................... 523 3. Copyright Perspectives ......................................... 528 a. On the Interests of the Creator and Licensed Disseminator of Works ..................... 530 b. On the Interests of Users ................................. 533 C. Do Choices to Pander with the Market-Driven Message Deserve Special Constitutional Protection? Politicians and the Freedom of Speech .................... 538 1. Political Pandering versus Entrepreneurial Pandering from a Republican Perspective: "The Arts of Designing Men" ................................ 541 2. Political Pandering versus Entrepreneurial Pandering from a Pluralist Perspective ............... 543 3. Political Pandering versus Entrepreneurial Pandering from a Personal Fulfillment Perspective ............................................................ 547 4. Political Pandering versus Entrepreneurial Pandering from the Perspective of Congress's Copyright Power.................................................... 547 IV. Doctrinal Implications of the Unprotected Decision to Sell the Market-Driven Message: Mandating Free Television Time for Political Candidates ...................... 549 A. Broad Considerations ................................................ 549 B. The Claim of Hybrid Motivation: Normative Issues of Constitutional Significance ....................... 556 C. Problems of Proof; Burdens of Proof......................... 559 1. Learning from the Defamation Analogy .............. 560 2. The Market-Driven Message and Burdens of Proof.................................................... 563 V. Broader Implications of the Unprotected Decision to Sell the Market-Driven Message ................................... 569 A. Content-Motivated Regulation of the Unprotected Market-Driven Message ........................................... 569 1. Unprotected Speech and Content-Motivated Regulation: Doctrinal Considerations .................. 569 2. Unprotected Speech and Content-Motivated Regulation: Normative Considerations ................ 571 B. Cultural Critiques of Commercial Television ........... 575 2000] SELLING THE MARKET-DRIVEN MESSAGE 453 INTRODUCTION There can be no disagreement on an initial premise: [Television] pro grammers and [television] operators engage in and transmit speech, and they are entitled to the protection of the speech and press provi sions of the First Amendment. Through "original programming or by exercising editorial discretion over which ... programs to include in its repertoire," [television] programmers and operators "see[k] to communicate messages on a wide variety of topics and in a wide vari ety offormats." -Turner Broadcasting Systems, Inc. v. Fee• It is urged that motion pictures do not fall within the First Amend ment's aegis because their production, distribution, and exhibition is a large-scale business conducted for private profit. We cannot agree. That books, newspapers, and magazines are published and sold for profit does not prevent them from being a form of expression whose liberty is safeguarded by the First Amendment. We fail to see why operation for profit should have any different effect in the case of mo tion pictures. -Joseph Burstyn, Inc. v. Wilson2 We can surely agree that no one can raise a cry of deprivation of free speech if he is compelled to prove that there is something more than naked commercial selfishness in his purpose. -Then-Secretary of Commerce Herbert Hoover3 Commercial television broadcasters have been subject to a range of regulations restricting their freedom to present pro gramming to the viewing public. Those restrictions have in cluded the Prime Time Access Rule,4 the Children's Television Act of 1990,s and the Fairness Doctrine.6 Indeed, the funda- 1. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 636 (1994) (citations omitted) (Turner I). 2. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02 (1952) (footnote omitted). 3. Speech by then-Secretary of Commerce Herbert Hoover at the Na tional Radio Conference (Nov. 9, 1925), quoted in Harry Kalven, Jr., Broad casting, Public Policy, and the First Amendment, 10 J.L. & ECON. 15, 16 (1967). 4. In the Matter of Amendment of Part 73 of the Commission's Rules and Regulations With Respect to Competition and Responsibility in Network Tele vision Broadcasting, 23 F.C.C.2d 382, 384 (1970). The rule prohibited the broadcast of more than three hours of programming produced by or for televi sion networks in any of the top fift;y markets during the four "prime-time" hours of the day-i.e., 7 p.m. to 11 p.m. Id. The FCC intended to protect the viability of non-network produced syndicated programming. Id. at 385-87. 5. Pub. L. No. 104-437, 104 Stat. 996 (1990). Congress directed the FCC 454 MINNESOTA LAW REVIEW [Vol. 85:451 mental requirement that broadcasters serve the "public inter est" in order to retain their licenses from the FCC itself im pinges programming discretion. 7 Cable television outlets have been subjected to the Must Carry Rule.8 Today, some propo nents of campaign finance reform seek to compel television broadcasters to provide free time to candidates for political ad vertising.9 Every effort to regulate television programming decisions has been opposed on both constitutional grounds and policy grounds. Dominant among policy objections are the notions of market efficiency that underlie a broader opposition to govern ment regulation of economic relationships. Social welfare is maximized, the argument goes, when freely-bargaining actors can agree upon transactions that enhance the self-defined wel fare of each participant. Some have argued, for example, that regulations of broadcast television programming should be evaluated according to whether "they interfere with the free market's ability to maximize consumer satisfaction or to pro mote most effectively consumer sovereignty."10 They suggest that "telecommunications goods and markets" should be treated as are "most other goods and markets."11 Accompanying these policy objections to the regulation of television programming decisions are arguments that invoke the First Amendment's prohibition of laws that "abridge the freedom of speech." If the government tells CBS that it may not present more than three hours of network-created pro gramming during primetime hours or that it must present at least a minimum amount of children's programming, the net work's freedom to choose its preferred programming is re stricted. If the government