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New Technology and the First Amendment: Breaking the Cycle of Repression Robert Corn-Revere

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New Technology and the First Amendment: Breaking the Cycle of Repression Robert Corn-Revere Hastings Communications and Entertainment Law Journal Volume 17 | Number 1 Article 11 1-1-1994 New Technology and the First Amendment: Breaking the Cycle of Repression Robert Corn-Revere Follow this and additional works at: https://repository.uchastings.edu/ hastings_comm_ent_law_journal Part of the Communications Law Commons, Entertainment, Arts, and Sports Law Commons, and the Intellectual Property Law Commons Recommended Citation Robert Corn-Revere, New Technology and the First Amendment: Breaking the Cycle of Repression, 17 Hastings Comm. & Ent. L.J. 247 (1994). Available at: https://repository.uchastings.edu/hastings_comm_ent_law_journal/vol17/iss1/11 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Communications and Entertainment Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. New Technology and the First Amendment: Breaking the Cycle of Repressiont by ROBERT CORN-REVERE* Table of Contents I. First Amendment Identity Crisis on the Information Superhighway ........................................... 249 A. What is Wrong With This Picture? ... 249 B. Traditionalism, Incrementalism, and Revisionism ... 253 C. Cable Television at the Crossroads ................. 254 II; The Real Issue: Applying the First Amendment to New Technologies ............................................. 259 A. Transition to the Multimedia Age .................. 260 B. Historical Treatment of New Technologies .......... 264 1. Cycles of Repression ..................... 264 2. The American Experience With New Technologies ...... .............................. 265 3. The Regulatory State and Freedom of Expression ...................................... 268 C. The Cycle Continues. ....................... 275 D. This Ain't No Wayto Run an Electronic Superhighway ....................................... 281 1. The Glacial Pace of Doctrinal Change .......... 282 2. Breakdown of the Classification Scheme ....... 285 t An earlier version of this Article was presented on February 25, 1994, at a symposium entitled The 1992 Cable Act: Freedom of Expression Issues, sponsored by and held at the Columbia Institute for Tele-Information (CITI), Columbia Business School, Columbia University. This Article is adapted from Chapter 2 of a forthcoming treatise, MODERN COMMUNICATIONS LAW, to be published by West Publishing Company (publication anticipated 1996). The views expressed in this Article are those of Mr. Corn- Revere alone and do not necessarily reflect those of his clients or other parties. * Robert Corn-Revere is a partner at the Washington, D.C. based law firm Hogan & Hartson. He formerly served as Legal Advisor to Commissioner James H. Quello of the Federal Communications Commission (FCC), and as Chief Counsel during Commissioner Quello's tenure as Chairman of the FCC in 1993. 248 HASTINGS COMM/ENT L.J. [Vol. 17:247 3. Current Efforts to Redefine Regulatory Classifications ...... ............................ 288 4. Regulation and First Amendment Traditions ... 291 III. A Traditionalist Approach to the First Amendment .... 295 A. Alternative Visions of the First Amendment ........ 296 1. Incrementalist Perspective ...................... 296 2. Revisionist Perspective ......................... 298 3. Traditionalist Perspective ....................... 308 B. Evaluating the Alternatives ......................... 319 1. Incrementalism and the End of History ........ 319 2. Revisionism and the Triumph of Politics ........ 329 3. Traditionalism and Enduring Principles ......... 340 IV . Conclusion .............................................. 345 1994] NEW TECHNOLOGY AND THE FIRST AMENDMENT I First Amendment Identity Crisis on the Information Superhighway A. What is Wrong With This Picture? In addition to triggering an avalanche of bad metaphors, the pop- ularization of the expression "electronic superhighway" 1 has perpetu- ated confusion in the First Amendment analysis of new communications technologies. The "Infobahn" promises to bring new broadband networks and a convergence of media, but it is also leading to a First Amendment identity crisis. Consider the following scenario: A federal regulator walks into a room and is confronted with five television sets, each displaying the same program. The show features a steamy sex scene between a man and a woman, complete with nudity, adult language, and lots of sweat. Although transparent to the viewer, each television is fed via a different transmission source. The first television is receiving a terrestrial broadcast transmission, the sec- ond obtains the images by coaxial cable, the third is connected to a fiber optic common carrier network, the fourth is hooked to a VCR, and the fifth is receiving a direct broadcast satellite (DBS) feed. Leaving aside any questions of federal versus local jurisdiction and assuming that the images are not obscene, what is the regulator's con- stitutional authority to control these images? The answer is, it depends. For broadcast transmission, it depends upon whether the images are sufficiently salacious to be considered "patently offensive" based 1. A monthly technology supplement to the WASHINGTON POST has launched a con- test to search for a better term. See Giving the Information Superhighway a Good Name, WASH. POST FAST FORWARD, Sept. 1994, at 4. "Bad enough the phrase resonates with the oaken earnestness of Vice President Al Gore, the guy responsible for introducing it to the public. Far worse are the dozens of winky 'highway' metaphors, all too cute by half, that have thumbed a ride: 'Toll booth.' 'Traffic cops.' 'Road kill."' Id. Such a reaction is understandable in light of the following metaphorical hash used to describe new infrastruc- ture investments designed to "create as much infobahn spaghetti-with cybersauce as we can cook up to throw on the wall and see what sticks with our customers." MULTICHAN- NEL NEWS, Oct. 3, 1994, at 100. On the legislative front, a bill was introduced just before April 1, 1994 to make it a crime "to use a computer network while intoxicated" (that is, banning drunk driving on the Information Superhighway). See April Fool's Day on the Data Superhighway; Prankster Reports Bill Would Ban Drunk Driving on Networks, WASH. POST, Mar. 30, 1994, at C3. This being said, the author apologizes for the repeated use of the expressions "Information Superhighway" or "Infobahn" at various places in this Article. HASTINGS COMM/ENT L.J. [Vol. 17:247 2 on "contemporary community standards for the broadcast medium." It also depends on whether the telecast is at a time when there is a "reasonable risk that children may be in the audience"-a concept that is far from settled.3 Assuming these conditions are met, the gov- ernment may require that the telecast be restricted to an appropriate time of day. With respect to the cable connection, the government's ability to regulate is far more limited. Various courts have held that indecency regulations are invalid when applied to cable television.4 As with broadcast television, however, the law remains a work in pro- gress. With respect to the third television, a court would likely apply the cases relating to "dial-a-porn" to the fiber optic common carrier network.5 The answer is even more murky with respect to televisions four and five. While there is much logic and some case law to suggest that the VCR-originated images would receive the same constitutional protection as the print media,6 the issue never has been formally re- solved by the courts.7 The appropriate First Amendment standard for 2. FCC v. Pacifica Found., 438 U.S. 726, 731-32 (1978) (quoting Pacifica Found. v. FCC, Memorandum Opinion and Order, 56 F.C.C.2d 94, 98 (1975)). This notion of com- munity standards specific to "the broadcast medium" may well be a moving target follow- ing the success of NYPD Blue. 3. Thus far, the United States Court of Appeals for the D.C. Circuit has rejected the FCC's reasoning regarding the times during which there is a "reasonable risk" that chil- dren will be watching or listening. See Action for Children's Television v. FCC, 932 F.2d 1504 (D.C. Cir. 1991), cert. denied, 112 S. Ct. 1281 (1992) (twenty-four-hour indecency ban rejected); Action for Children's Television v. FCC, 852 F.2d 1332 (D.C. Cir. 1988) (re- jecting 12 a.m. to 6 a.m. as a "safe harbor" period). 4. Cruz v. Ferre, 755 F.2d 1415 (11th Cir. 1985); Daniels Cablevision, Inc. v. United States, 835 F. Supp. 1, 9-10 (D.D.C. 1993); Community Television of Utah, Inc. v. Wilkin- son, 611 F. Supp. 1099 (C.D. Utah 1985), affd sub nom. Jones v. Wilkinson, 800 F.2d 989 (10th Cir. 1986), affd mem., 480 U.S. 926 (1987); Community Television, Inc. v. Roy City, 555 F. Supp. 1164 (N.D. Utah 1982); Home Box Office, Inc. v. Wilkinson, 531 F. Supp. 987 (C.D. Utah 1982). See generally Jessica Sporn, Note, Content Regulation of Cable Televi- sion: "Indecency" Statutes and the FirstAmendment, 11 RUTGERS COMPUTER & TECH. L.J. 141 (1985). 5. Dial-a-porn regulations were twice struck down as being too restrictive of adults' rights to receive sexually-oriented telephone messages. Carlin Communications, Inc. v. FCC, 837 F.2d 546 (2d Cir. 1988), cert. denied, 488 U.S. 924 (1988); Carlin Communica- tions, Inc. v. FCC, 787 F.2d 846 (2d Cir. 1986) (judicially acceptable regulations fashioned by the FCC); Carlin Communications, Inc. v. FCC, 749 F.2d 113 (2d Cir. 1984). See also Dial Info. Corp. v. Thornburgh, 938 F.2d.1535 (2d Cir. 1991), cert. denied, 112 S.Ct. 966 (1992); Information Providers' Coalition for Defense of the First Amendment v. FCC, 928 F.2d 866 (9th Cir. 1991). Congress attempted to ban all interstate dial-a-porn calls, includ- ing calls that were indecent but not obscene, but this measure was invalidated as a First Amendment infringement. Sable Communications, Inc. v. FCC, 492 U.S. 115 (1989). 6. See Video Software Dealers Ass'n v. Webster, 968 F.2d 684 (8th Cir. 1992). 7. Karl A. Groskaufmanis, Comment, What Films We May Watch: Videotape Distri- bution and the First Amendment, 136 U. PA. L. REV.
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