First Amendment Jurisprudence Should Reflect Economic Reality: Why Red Lion and Pacifica Must Fall
The U.S. legal landscape is riddled with anachronisms, but few are as indefensible and economically nonsensical as the justifications for regulating broadcast content. This bizarre notion that radio and television broadcasters deserve fewer First Amendment protections than newspapers, websites, or cable networks is a vestige of mid-20th-century technological reasoning that has long overstayed its constitutional welcome.
The U.S. Supreme Court has a clear path to correct this historical error: it must overturn both Red Lion Broadcasting Co. v. FCC (1969) and FCC v. Pacifica Foundation (1978). As my colleague Eric Fruits has been writing about, creative destruction has largely upended the marketplace that the Court considered in those cases nearly 50-60 years ago. Overturning these outdated cases is a necessary step to restore full First Amendment rights to broadcasters and give them a chance to compete in the 21st century. Justice Clarence Thomas has already laid the groundwork in his concurrence in FCC v. Fox Television Stations (2009).