Keynote address: Three cheers for Red Lion

Administrative Law Review

Volumn 60, Issue 4, 2008, Pages 861-868

  Baker, C Edwin ^a  

^a UNIVERSITY OF PENNSYLVANIA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79251537179     PISSN: 00018368     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (39)

1. Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969).
2. Access to the Media-1967 to 2007 and Beyond: A Symposium Honoring Jerome A. Barron's Path-Breaking Article, Introductory Remarks by the Honorable Stephen G. Breyer, 76 GEO. WASH. L. REV. 819 (2008).
3. See C. EDWIN BAKER, MEDIA CONCENTRATION AND DEMOCRACY: WHY OWNERSHIP MATTERS 195-97 (2007) (detailing a version of these criticisms).
4. See generally C. Edwin Baker, Turner Broadcasting: Content-Based Regulation of Persons and Presses, 1994 SUP. CT. REV. 57 (elaborating more fully and contextualizing the themes discussed in this talk).
5. 319 U.S. 624 (1943).
6. 395 U.S. 444 (1969).
7. 376 U.S. 254 (1964).
8. 418 U.S. 241 (1974).
9. 354 U.S. 476 (1957).
10. 485 U.S. 46 (1988).
11. See generally C. Edwin Baker, Harm, Liberty, and Free Speech, 70 S. CAL. L. REV. 979 (1997) (developing this point further).
12. When Justice Brennan eventually changed his view about whether obscenity could be limited under the First Amendment, he also changed from subscribing to the marketplace of ideas rationale that he invoked in Roth to a liberty and autonomy view in Paris Adult. Compare Roth, 354 U.S. at 484-85 (protecting "all ideas," even "hateful" ideas "to assure unfettered interchange of ideas," presumably as a "step to truth") (citation omitted), with Paris Adult Theatre I v. Slaton, 413 U.S. 49, 85-86 n.9 (1973) (Brennan, J., dissenting) (recognizing an autonomy or liberty basis to receive obscenity).
13. Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969).
14. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 585 (1980) (Brennan, J., concurring).
15. The often-quoted language about "the need to preserve inviolate the constitutional rights" originated in De Jonge v. Oregon, 299 U.S. 353, 365 (1937). This language is often used to distinguish between overt limitations on speech (or the right to assembly) and laws that in some way burden or make less effective these rights.
16. See Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 258 (1974) ("The choice of material to go into a newspaper. . . constitute[s] the exercise of editorial control and judgment.").
17. Red Lion, 395 U.S. at 390.
18. 326 U.S. 1(1945).
19. Red Lion, 395 U.S. at 387.
20. Id. at 390 (citations omitted).
21. Id. at 392 (quoting Associated Press, 326 U.S. at 20).
22. 512 U.S. 622 (1994).
23. The Court actually gave multiple grounds for its distinction, including an ill-advised (because it is subject to technological reevaluation) argument based on the cable system's bottleneck control over access to television programming. See id. at 656.
24. Id. at 653 (citation omitted). The Court made the point repeatedly within the opinion, maybe out of fear that the point would not be clear. For example, about Tornillo, the Court said, We explained that, in practical effect, Florida's right-of-reply statute would deter newspapers from speaking in unfavorable terms about political candidates: "Faced with the penalties . . . editors might well conclude that the safe course is to avoid controversy. Therefore, under the operation of the Florida statute, political and electoral coverage would be blunted or reduced."
25. Id. (quoting Miami Herald Publ'g Co. v. Tomillo, 418 U.S. 241,257 (1974). The Court also relied on its paraphrase of Associated Press to justify structural regulation: "The First Amendment's command that government not impede the freedom of speech does not disable the government from taking steps to ensure that private interests not restrict, through physical control of a critical pathway of communication, the free flow of information and ideas." Turner, 512 U.S. at 657 (citing Associated Press, 326 U.S. at 20 (1945)).
26. Turner, 512 U.S. at 655 (citation omitted).
27. 343 U.S. 495, 503 (1952).
28. Red Lion Broad. Co. v. FCC, 395 U.S. 367, 386 (1969).
29. Burstyn, 343 U.S. at 503.
30. See, e.g., Leathers v. Medlock, 499 U.S. 439, 453 (1991) (holding that different taxes can apply even to different entities in the same media category "unless the tax is directed at, or presents the danger of suppressing, particular ideas").
31. Clearly, this point applies to the need to use different techniques in different media to protect against exposure of children despite the constancy of the Butler v. Michigan principle that regulation on behalf of protecting children can never justify significant limits on adults' access to protected speech. Compare Butler v. Michigan, 352 U.S. 380, 383 (1957) (rejecting legislation that would effectively "reduce the adult population of Michigan to reading only what is fit for children"),
32. with FCC v. Pacifica Found., 438 U.S. 726, 750 n.28 (1978) (declaring that the FCC did not violate the Butler principle by barring Carlin's indecent language during daytime radio shows).
33. See Garrett Hardin, The Tragedy of the Commons, 62 SCIENCE 1243 (1968) (discussing how the destruction of shared resources can occur when individuals act in their own self-interest).
34. Red Lion, 395 U.S. at 375.
35. Id. at 388.
36. Id.
37. Id. (citation omitted).
38. Under some circumstances, voluntary acceptance of custom can substitute for law to handle the problem. Justice White noted that this had been tried but had not worked in respect to broadcasting-rather the result had been "chaos." Id.
39. Red Lion, 395 U.S. at 376.