Thursday, October 23, 2008
In this Article, a contribution to a retrospective symposium dedicated to Red Lion, I argue that the "inevitable" wasteland of commercial television programming has, over time, become an "irrelevant" wasteland. The most common critique of Red Lion relates to the discredited (and nonsensical) scarcity doctrine used to justify reduced First Amendment protection for radio and television broadcasters. A larger problem with Red Lion relates to the public interest doctrine itself, which seeks to obtain the production and provision of public goods from entities with little economic incentive to meet these programming needs. In sum, the Federal Communications Commission's efforts to enforce the public interest doctrine have done little to change the programming behavior of commercial broadcasters, notwithstanding the Supreme Court's endorsement of such efforts. In thinking more broadly about the "public interest," however, government might be able to take helpful steps to improve the vibrancy of the marketplace of ideas. In particular, imposing public interest duties or regulations on Internet Service Providers (ISPs) and also on entities that own or control popular web search engines might help to facilitate realizing the Internet's full potential as the ultimate marketplace of ideas. Thus, Congress and the Commission need to fundamentally rethink the public interest project; in the contemporary United States, the need to secure public interest values relates-or at least should relate-much more to ISPs and web browser providers than to commercial radio and television broadcasters. This is so because ISPs and companies that own popular web browsers have the ability to skew access to information and ideas in ways that are utterly non-transparent. In sum, in thinking about Red Lion, we should embrace the concept of the public interest and the concomitant principle that government may enact regulations to secure and advance it, but for the concept to retain relevance, it must be redeployed and redefined to reach the most important modalities of distributing and receiving information and ideas.
Download the paper from SSRN here.