The First Amendment and communications policymaking: Toward a new balancing test in the assessment of electronic media regulations.

The First Amendment and Communications Policymaking: Toward a New Balancing Test in the Assessment of Electronic Media Regulations

Presented to the National Cable Television Association, New Orleans, LA, May, 2000

The constitutionality of electronic media regulations is traditionally assessed by applying the well-known First Amendment balancing test, in which the free speech rights of the speaker are weighed against the importance of the government interest at issue. This paper argues that, when this balancing test is analyzed within the context of the entire range of functions that have been associated with the First Amendment, in some instances this test does not completely capture the First Amendment's full scope. Instead, this paper argues that, in some instances, the appropriate test involves balancing the First Amendment rights of the individual against the First Amendment's obligation to preserve and promote an environment conducive to free speech for all citizens. The applicability of this new First Amendment balancing test is illustrated through discussions of three recent controversies in electronic media regulation: (a) adult content on the Internet; (b) the cable television "must-carry" regulations; and (c) unaffiliated ISP access to cable lines.

When assessing the constitutionality of any electronic media regulation, courts generally employ the well-known balancing test in which the First Amendment rights of the speaker are weighed against a substantial or compelling government interest. This traditional balancing test involves asking whether the gravity of the "evil" sought to be prevented by the government regulation justifies the extent of the infringement on free speech imposed by the regulation. First explicitly articulated by Chief Judge Learned Hand in United States v. Dennis (1950), the test was later adopted by the Supreme Court (Dennis v. United States, 1951), and soon became a prominent component of the Court's First Amendment analysis (see Frantz, 1962; Posner, 1986).

An examination of the full range of purposes that historically have been associated with the First Amendment suggests that the traditional application of this balancing test may not adequately reflect the range of functions the First Amendment is intended to serve. That is, when we consider that the First Amendment traditionally has been associated with promoting and protecting individual speech liberties (in the name of self-fulfillment and individual development), and has also been associated with protecting and enhancing the broader environment in which speech takes place (in the name of political stability and the democratic process), then the traditional weighing of individual First Amendment freedoms against compelling government interests may misrepresent the full scope of First Amendment functions. Instead, the necessary balancing test that may be one of weighing individual First Amendment interests against First Amendment concerns with preserving and enhancing a free speech environment with the greatest collective benefit. Such a revised approach to the traditional First Amendment balancing test may better reflect the true scope of the First Amendment and introduces a different analytical perspective to current First Amendment controversies in the area of electronic media regulation.

This paper will first review and discuss the various functions/objectives that have been associated with the First Amendment. A firm grounding in the functions of the First Amendment is essential to any discussion of how it should be interpreted and applied. As will become clear, this review of the functions of the First Amendment will be central to the later call for a revised First Amendment balancing test. Generally, these functions can be categorized in terms of their "individualist" or "collectivist" orientation. The second section of this paper will elaborate on these two interpretive perspectives and on the conflicts that can arise between them. The final section of this paper will illustrate how accounting for the full range of functions of the First Amendment and incorporating both individualist and collectivist interpretations requires that, in some instances, a new balancing test be applied. This balancing test involves the weighing of individualist and collectivist First Amendment values, as opposed to the traditional First Amendment versus compelling government interest balancing test, in which the First Amendment occupies only one side of the equation. To illustrate the circumstances in which this new First Amendment balancing test may be appropriate, this section addresses three recent media regulation controversies: the regulation of adult content on the Internet; the cable must-carry rules; and unaffiliated ISP access to cable systems.

In order to understand the rationale for a revised First Amendment balancing test, it is first necessary to review exactly what the First Amendment is meant to achieve. Constitutional scholars have associated a wide variety of functions with the First Amendment. These separate objectives are not always mutually exclusive. In some instances, the pursuit of one objective may promote the pursuit of others. In other instances, the pursuit of one objective may undermine the pursuit of others (see Bloustein, 1981). The primary purpose of this section is not to wade into the debate regarding the supremacy of some objectives over others (e.g., Baker, 1978; Redish, 1982; Sunstein, 1993).⁽¹⁾ Rather, the primary goal is to outline the full range of objectives that have been associated with the First Amendment to lay the groundwork for the analysis that follows.

The framers of the Constitution were ambiguous about what explicit purposes the First Amendment was meant to serve (see Bloustein, 1981, pp. 380-381). In addition, the Supreme Court has neglected to provide much clarity on this issue (Emerson, 1970, p. 15). Consequently, the underlying rationale(s) for the First Amendment has remained contested territory. Legal scholars and political theorists have developed a variety of values associated with the First Amendment, drawing upon both constitutional history and the opinions of the Supreme Court, which, as Shiffrin (1983) notes, "has been unwilling to confine the First Amendment to a single value or even to a few values" (p. 1251). We are thus faced with a situation in which a variety of First Amendment functions have been proposed, debated, and criticized (see Baker, 1978; Bork, 1982; Redish, 1982).

Table One lists the primary functions that historically have been associated with the First Amendment. This list is drawn from the extensive literature devoted to this topic (e.g., Baker, 1978; Blasi, 1977; Bloustein, 1981; Bork, 1971; DuVal, 1972; Emerson, 1970; Fiss, 1986, 1996; Meiklejohn, 1948/1972, 1948/1960; Owen, 1975; Redish, 1982; Sunstein, 1993). This literature, in turn, has drawn primarily from the history and political philosophy surrounding the drafting of the Constitution and the creation of the First Amendment, as well as from the Supreme Court's First Amendment jurisprudence. In some instances, functions that appeared to exhibit significant overlap have been collapsed. The table lists each function of the First Amendment, whether the function requires either the transmission or reception of speech (or both), and whether the function is targeted at the individual or the collective level (or both). Finally, the table lists representative sources in which each of these functions has been developed and discussed.

Function	Sources	Transmission	Reception	Individual	Collective
Self-fulfillment/Liberty	Baker (1978); Bloustein (1981	X		X
Development of Individual's Faculties	Emerson (1970); Whitney v. California (1927)	X	X	X
Advancing Knowledge/ Discovering Truth	Associated Press v. U.S. (1945); Emerson (1970); Wonnell (1986)	X	X	X	X
Enhancing Democratic Process	Meiklejohn (1960, 1972); Fiss (1990, 1996); Sunstein (1993); Bork (1971)	X	X		X
Checking Government Power	Blasi (1977); Stewart (1975)	X	X		X
Achieving Stability in Community	Emerson (1970)	X	X		X
Self-Realization/Autonomy of Consciousness	Redish (1982a); Reed (1997)		X	X	X

The first function listed in Table One reflects the collapsing of a number of similar functions. Many First Amendment analysts have argued that freedom of speech is necessary for self-fulfillment, or, more specifically, for individuals to feel a sense of integrity and worth (Baker, 1978; Bloustein, 1981; Emerson, 1970). From this perspective, free speech is an important aspect of the "life, liberty, and pursuit of happiness" values expressed in the Declaration of Independence (Bloustein, 1981, p. 373). The value of free speech in this case extends primarily from respect for individual autonomy, or liberty, and the degree to which speech allows individuals to define, develop, and express themselves (Baker, 1978). Thus, expressions ranging from pronouncements of political positions to the shouting of expletives in anger are both of value given that both reflect the exercise of individual autonomy and liberty that are central to this particular valuation of the First Amendment.

It is important to recognize that, within this particular value framework, the benefits of free speech exclusively involve its effects on the speaker, regardless of whether the speech reached, or had any effect on, other listeners (Redish, 1982, p. 620). Baker (1978) provides a useful example:

Vietnam war protestor may explain that when she chants "Stop This War Now" at a demonstration, she does so without any expectation that her speech will affect the continuance of war or even that it will communicate anything to people in power; rather, she participates and chants in order to define herself publicly in opposition to the war. This war protest provides a dramatic illustration of the importance of this self-expressive use of speech, independent of any effective communication to others, for self- fulfillment or self-realization. (p. 994)

Within this interpretive framework, freedom of speech becomes "a valuable end in itself, an improvement in the human condition" (Owen, 1975, p. 6). The act of speaking is a right to which we are all entitled, given that the act is central to the individual liberties celebrated and valued in both the Declaration of Independence and the Constitution.

The second major value associated with the First Amendment, the development of an individual's faculties, represents a slight, but important, extension of the self-fulfillment value. This value reflects the notion that, through both the unencumbered sending and receiving of information, an individual's skills, abilities, and talents expand and evolve. Thus, free speech, from both a transmission and reception standpoint, facilitates an individual's engagement in his constitutional right to improve himself (Emerson, 1970). This value is drawn primarily from Justice Brandeis' famous dissent in Whitney v. California (1927), in which he argued that "Those who won our independence believed that the final end of the State was to make men free to develop their faculties" (p. 375). Justice Brandeis saw "the power of reason as applied through public discussion," (Whitney v. California, 1927, p. 375), as a primary means by which such individual faculties could be developed. It is this recognition of the value of public discussion -- and the interactive nature of such discussion -- to individual self-development that differentiates this function of the First Amendment from the liberty/self-fulfillment function, given that the development of an individual's faculties is seen as requiring both the opportunity to develop and express thoughts, as well as the opportunity to receive, analyze, and possibly adopt, the thoughts and ideas of others (e.g., by consuming art or literature), thereby allowing the individual to become a better, more developed person.

The third major value associated with the First Amendment revolves around the advancement of knowledge and the discovery of truth. In this context, the free and open exchange of ideas facilitated by the First Amendment increases the level of knowledge among citizens, which then allows them to make wise decisions (Emerson, 1970; Wonnell, 1986), both individually and collectively. This First Amendment value is based on the notion that "the free exchange of ideas is a necessary condition for the development of knowledge in all fields of inquiry" (Bloustein, 1981, p. 375). Under this logic, the greater the volume and diversity of information, the greater the opportunity for increased knowledge and well-informed decisionmaking. This value of the First Amendment owes much to the well-known "marketplace of ideas" concept (Abrams v. United States, 1919; Lamont, DBA Basic Pamphlets v. Postmaster General,1965; United States v. Rumely, 1953).⁽²⁾ This metaphor emphasizes the improvements in citizen knowledge and decisionmaking that arise from all individuals having the opportunity to both express their viewpoints and encounter the viewpoints of others (see Wonnell, 1986).

The fourth value frequently associated with the First Amendment focuses explicitly on the political functions of free speech. Specifically, the primary value of free speech is seen as its ability to improve and enhance the democratic process. When the First Amendment is approached primarily in terms of its political value, we can think of free speech as functioning "as a corollary to democratic theory" (Ingber 1984, p. 8). The well-known logic of this relationship between free speech and the democratic process is that, given the democratic system's emphasis on self-determination, democracy only functions effectively when citizens are capable of collectively making decisions that truly serve their best interests. The likelihood of such effective political decisionmaking occurring increases with the degree to which citizens are well-informed about all of the decision options available to them, and about the pros, cons, and likely effects of each decision option. The likelihood of citizens possessing such knowledge increases with the degree to which ideas representing all sources, perspectives, and viewpoints are available for consideration. Thus, the logic of this perspective dictates that the value of the First Amendment lies within its ability to promote the flow of diverse political ideas and viewpoints to the citizenry.

The origins of this interpretation of the First Amendment, and its increasing prominence in legal scholarship (see Bhagwat, 1995; Bork, 1971; Fiss, 1986, 1996; Lichtenberg, 1990; Sunstein, 1993) and judicial decisionmaking (see Brennan, 1965; Reed, 1997, p. 9), owe much to the work of Alexander Meiklejohn (1948/1972). Meiklejohn (1948/1972) provides a detailed account of the relationship between the First Amendment and the functioning of democracy, arguing that "the citizens of the United States will be fit to govern themselves under their own institutions only if they have faced squarely and fearlessly everything that can be said in favor of those institutions, and everything that can be said against them" (p. 91). This function of the First Amendment is clearly related to the previous function, in that both involve the relationship between knowledge and decisionmaking. However, in this case the context is much more specific, in that the focus is exclusively on knowledge and decisionmaking in the political realm, where collective decisionmaking predominates.

The fifth function that has been associated with the First Amendment -- the "checking function" -- is related to the fourth in terms of its political orientation. The checking function refers to the value of free speech in preventing governmental misconduct. Developed primarily by Blasi (1977), this valuation of the First Amendment focuses on the necessity of free speech for effectively "alerting the polity to the facts or implications of official behavior, presumably triggering responses that will mitigate the ill effects of such behavior" (p. 546). Stewart (1975) argues that the checking function is a primary rationale for the separate "or of the press" clause in the First Amendment, given the drafters' concern with establishing and protecting a "fourth branch" of government (pp. 634-635).⁽³⁾ This valuation of the First Amendment no doubt reflects important motivating factors for the drafters of the Constitution (Blasi, 1977). When the origination of the First Amendment is placed within its historical context of colonial revolt, it becomes clear that the amendment originated, at least in part, in "reaction to the oppressions of colonial government," and due to an overriding concern with constructing checks on government power (Owen, 1975, p. 6).

The checking value of free speech is perhaps best represented in First Amendment jurisprudence in an opinion written by Justice Hugo Black in New York Times v. United States (1971). According to Justice Black:

The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. (New York Times v. United States, 1971, p. 717)

As Blasi (1977) notes, however, such explicit invocations of the checking function of the First Amendment are relatively infrequent in the Supreme Court's decisionmaking (p. 649).

The sixth function, achieving stability in the community, grows from the notion that suppression of discussion undermines the possibility for rational judgment and from the idea that "suppression promotes inflexibility and stultification, preventing society from adjusting to changing circumstances or developing new ideas" (Emerson, 1970, p. 7). In contrast, open discussion:

promotes greater cohesion in society because people are more ready to accept decisions that go against them if they have a part in the decision-making process. . . . Freedom of expression thus provides a framework in which the conflict necessary to the progress of a society can take place without destroying the society. It is an essential mechanism for maintaining the balance between stability and change. (Emerson, 1970, p. 7)

Clearly, this viewpoint on the value of freedom of expression extends beyond speech's political function by placing speech in the pivotal role of promoting steady and productive social change, while ensuring that citizens do not react negatively or hostilely to changes that they oppose.

Finally, the "self-realization" and "autonomy of consciousness" functions represent efforts to combine each of the functions described above into a single, all-encompassing principle. According to Redish (1982), each of the other First Amendment values discussed above "are in reality subvalues of self-realization," (p. 596) in that each contributes to an individual's ability to realize his or her full potential or to control his or her own destiny through decisionmaking. A retrospective analysis of the opinions of Justice Thurgood Marshall (Wells, 1993) concluded that his decisionmaking and analysis consistently emphasized the value of self-realization, as later articulated by Redish (1982). Marshall, like Redish (1982), saw broader social objectives such as effective democracy, governmental restraint, and community stability primarily as a function of individual autonomy and achievement.

The "autonomy of consciousness" value is closely related to the self-realization value in that it too attempts to incorporate all of the previously articulated values -- including self-realization -- into a single, unifying value. Recently articulated by Reed (1997), the autonomy of consciousness value asserts that:

human consciousness with its strong sense of an individual "self" that both knows and knows that it knows derives specifically from the use of language. In the most direct sense possible, the individual self to which constitutional rights accrue arises from the language in which we are immersed from earliest childhood. "Freedom of speech" becomes, then, the constitutional equivalent of autonomy of consciousness, consciousness that is realized when the government restrains language only in the most exigent circumstances. (p. 2)

Reed (1997) emphasizes that consciousness is both an individual and a social phenomenon, therefore requiring attention to both individual autonomy and community welfare.

A few key points need to be made in regards to this list of First Amendment functions. These points will be relevant to the analysis presented in the third section of this paper. First, all but the liberty/self-fulfillment function of the First Amendment derive at least part of their value from the reception of information. That is, whereas the liberty function focuses entirely on the benefits that accrue to the speaker via his/her opportunities to express him/herself, the remaining six functions all, to varying to degrees, derive their value from both the transmission and reception of thoughts and ideas. The development of an individual's faculties depends in part on exposure to the ideas and insights of others. The advancement of knowledge can only take place when the relevant information can be obtained, synthesized, and analyzed. Similarly, the democratic process is strengthened when voters participate with the wisdom and insight that come from exposure to -- and consideration of -- a wide range of viewpoints and decision options. Free speech only has the capacity to impose a check on governmental power when the populace becomes aware of government abuses. Stability in the community, as described by Emerson (1970), requires both that citizens participate in the decisionmaking process and that new ideas and information regarding problems facing society are free to circulate among the citizenry. Finally, the self-realization/autonomy of consciousness function acknowledges the importance of the reception of diverse viewpoints for individual decisionmaking and development (Redish, 1982, pp. 604-605; Reed, 1997).

This point seems particularly important given that there has been some uncertainty as to whether the First Amendment includes the right to receive information (e.g., Rumble, 1994; Stern, 1990; Wagner, 1998).⁽⁴⁾ When this question is informed by the full range of functions associated with the First Amendment, it seems clear that the First Amendment must encompass the reception of information, as well as the dissemination, in order for most of its functions to be effectively carried out. Indeed, an emphasis only on the right to transmit information would appear to reflect an incomplete application of the First Amendment, one that fails to account for the full range of objectives that the First Amendment is intended to achieve. On this subject, the Supreme Court has noted that "where a speaker exists, . . . the protection afforded is to the communication, to its source and to its recipients both" (Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 1976, p. 756).

When we think of the benefits of free speech emanating from both the transmission and reception of information and ideas, another important aspect of the First Amendment's value emerges. Specifically, as long as benefits are seen in the reception of information, there is a "network externality" component to the First Amendment. Network externalities, in the traditional economic sense, are those benefits that accrue to a user of a particular product or service because the user is part of a network of users of that product or service (see Allen, 1998; Barnett & Kaserman, 1998). One of the classic examples of network externalities is the telephone system (see Napoli, in press, Chapter Eight). As more individuals are connected to the telephone system, its value to the individual user increases. A telephone is essentially worthless to an individual user until at least one other person, and preferably many more people, purchases a telephone.

In terms of the First Amendment, the greater the number of people who have, and take advantage of, their full First Amendment freedoms, the greater the value of these First Amendment freedoms to the individual citizen, given that, for the individual, increased value (as related to the functions of the First Amendment identified above) comes from increases in the quantity and diversity of information, viewpoints, and perspectives available for consumption. If we value the First Amendment in terms of its ability to provide a free flow of diverse opinions, viewpoints, ideas, and perspectives to citizens, granting First Amendment freedoms to a select few limits the overall value of the First Amendment to those grantees. In contrast, if the value of the First Amendment resides only in the opportunities it affords for the expression of ideas, then its value for the individual citizen is in no way dependent upon the level of First Amendment freedom afforded other citizens. From this perspective, being the only person in the country with free speech rights provides as much value to that individual as a situation in which all citizens have free speech rights.

In addition, once we acknowledge the network externalities aspect of receiving speech, it becomes clear how the possibility that the ideas of some individuals or groups may be very easily accessible or have a very broad range of projection, while the ideas of other individuals or groups may be relatively inaccessible, can itself represent a First Amendment problem. To illustrate with an analogy, the valuation of the reception of information dictates that sending a message out to sea in a bottle -- certainly a case of unrestricted expression of an idea -- does not serve the values inherent in the First Amendment to the same degree as delivering that same message in a 10,000 seat auditorium, given that the audience that can potentially access the bottled message is much smaller. It seems, then, that maximization of opportunities for both expression and reception should be a policy priority for policymakers seeking to uphold the First Amendment.

The second major observation, which leads directly into the discussion that is to follow, is that the values associated with the First Amendment are roughly equally distributed between those targeted primarily at the individual and those targeted at the collective (see Table One). The liberty and development of faculties functions are targeted primarily at the individual, given that they focus on the value of free speech in enabling an individual to achieve happiness and self worth and become a better, more developed person. In contrast, the democratic process, checking, and community stability functions all focus on the value of the First Amendment for citizens as a collective. These values all focus primarily on the functioning of social institutions, rather than the conduct and quality of individual lives. The remaining values function at both the individual and the collective levels. The advancing knowledge/discovering truth value functions at both levels, given that a vibrant marketplace of ideas can improve both individual and collective decisionmaking. The self-realization/autonomy of consciousness function also functions at both levels, given that it reflects the idea that an emphasis on the value of individual development is an effective (perhaps the most effective) means of achieving collective-level objectives (Redish, 1982; Wells, 1993). For instance, the development of individual knowledge and decisionmaking skills could positively affect collective political decisionmaking (Bloustein, 1981, pp. 394-395). The self-realization/autonomy of consciousness function therefore falls into both categories, although the direction of the causal relationship asserted within it certainly prioritizes an individual conceptualization of the value of the First Amendment over a collective conceptualization.

The key at this point is to recognize that there is a fairly even distribution between individual and collective values associated with the First Amendment. Given that each of the values identified above draws at least some support from the historical and intellectual contexts surrounding the development of the Constitution or from Supreme Court jurisprudence, it seems safe to conclude, as many scholars have, that the First Amendment is a multi-valued concept (Blasi, 1977; Cohen, 1993; Emerson, 1970; Schauer, 1983; Sunstein, 1993) and that this multi-dimensionality need not be interpreted as a problem requiring solving. As Sunstein (1993) notes, "We should acknowledge that free speech values are likely to be plural and diverse rather than unitary," given that "This is true for most constitutional rights, which serve a range of purposes" (p. 129). Thus, from a policymaking and policy analysis standpoint, the First Amendment represents a wide range of policy objectives to be considered and assessed.

These different values associated with free speech figure prominently in the two primary approaches to conceptualizing the First Amendment. One of the central debates in First Amendment theory is the debate regarding whether the First Amendment is primarily intended to protect the speech rights of the individual, or whether it is primarily intended to protect the speech rights and well-being of the citizenry as a collective (see Kelly & Donway, 1990, p. 71). Ingber (1990) notes that these two interpretive positions typically have been regarded as antagonistic (pp. 5-6). This individualist-collectivist tension is particularly important from a communications policy perspective because the conceptual level that is chosen is central to the underlying logic of many policies. Thus, some policies that appear valid and justifiable under a strictly individualistic interpretation of the First Amendment may lose their validity under a strictly collectivist interpretation, and vice versa.

The individualist interpretation of the First Amendment places its highest priority on preserving and enhancing the free speech rights of the individual citizen. Needless to say, this interpretation of the First Amendment draws its underlying logic primarily from the First Amendment functions outlined in the previous section that emphasize individual rights, development, and satisfaction (e.g., Baker, 1978). Individualist interpretations of the First Amendment typically focus on maximizing the autonomy of the individual citizen (e.g., Scanlon, 1979; Strauss, 1991). For instance, Baker's (1978) "liberty" theory of freedom of speech places governmental respect for individual autonomy as a central guiding assumption. This autonomy may be conceptualized primarily in terms of the autonomy to speak, or it may be conceptualized primarily in terms of the autonomy to listen. It is important to recall that both speaker and listener freedoms are central to many of the individual-level values associated with the First Amendment (e.g., decisionmaking, development of individual faculties). As Wells (1997) notes, the Supreme Court has sometimes chosen to emphasize speaker autonomy, while at other times it has chosen to emphasize listener autonomy (p. 172).

Such an emphasis on individual autonomy (whether in terms of speaking or listening) grows from the fact that constitutional rights are traditionally perceived as protections of the individual from unjust governmental intrusions (Ingber, 1990, p. 5). As Fallon (1994) notes, "recognition of autonomy as a First Amendment value promotes coherence between the First Amendment and other constitutional provisions" (p. 902). Ingber (1990) traces the roots of the individualist interpretation of the First Amendment to the Enlightenment era philosophers of the 17th and 18th centuries. He notes that, within this interpretation of free speech, the focus is on:

the individual as a free, rational, and autonomous agent who serves both as the source of political authority and as the ultimate justification for its exercise. Consequently, most "rights-based" theories of constitutional law place at their center a concern for upholding individual value preferences and the liberty of individual action. (p. 5)

Within this interpretive framework, with its emphasis on individual autonomy, free speech rights are typically conceived of as a "negative liberty" (see Fallon, 1994); that is, in terms of freedom from external interference in doing what one wants. The key analytical issue in this approach to the First Amendment involves whether or not one individual's exercise of his or her liberties unacceptably intrudes upon the liberties (speech or otherwise) of others (Fallon, 1994).

The Supreme Court's emphasis on individual autonomy within the context of the First Amendment is perhaps most vividly illustrated in the Court's opinion in Buckley v. Valeo (1976). In this decision, the Court rejected congressional legislation limiting campaign expenditures, viewing such restrictions as a violation of the First Amendment. The Court concluded that "The concept that government may restrict the speech of some . . . in order to enhance the relative voice of others is wholly foreign to the First Amendment" (pp. 48-49). Clearly, within this interpretation of the First Amendment, under no circumstances can government subjugate the speech rights of an individual to the speech rights of any other individual, organization, or institution. The key aspect of this statement is that, in emphasizing that such subjugation of individual speech rights is "wholly foreign to the First Amendment," the Court is rejecting any notion of a First Amendment conceptualization that extends beyond the level of individual speech autonomy. Other representative examples of an individualistic interpretation of the First Amendment within the Supreme Court include the statement in Cohen v. California (1971) that free speech comports "with the premise of individual dignity and choice upon which our political system rests," (p. 24) and Justice Brennan's dissent in Herbert v. Lando (1979), in which he stated that free speech is "itself an end" that is "intrinsic to individual dignity" (p. 186).

However, these statements by the Supreme Court do not necessarily suggest that those community-level values associated with the First Amendment, such as stability and effective democracy, are irrelevant to individualist First Amendment interpretations. In the extreme, this may be the case; however, advocates of individualist interpretations of the First Amendment have often emphasized the capacity of such an interpretive approach to simultaneously advance community-level objectives. Indeed, the concept of individual autonomy certainly has strong theoretical linkages with the effective functioning of democracy (see Fallon, 1994; Wells, 1997). According to this logic, only when citizens are truly and fully autonomous can they effectively carry out their responsibilities of self-rule. Any government-imposed restrictions on this autonomy thereby threaten the process of effective democratic self-governance. As Post (1993) notes, "The protection of individual autonomy prevents the state from violating the central democratic aspiration to create a communicative structure dedicated to 'the mutual respect of autonomous wills'"(p. 1121).

Following this logic, efforts to develop unitary, encompassing values of free speech generally have prioritized individual autonomy as the means by which community-based objectives such as stability and effective self-governance are achieved. Redish's (1982) "self-realization" approach to the First Amendment is oriented first and foremost (as the label would suggest) toward facilitating the development of the individual. Speech values such as checking government abuses and facilitating effective self-governance are not, however, rejected as irrelevant within this context. Rather, they are placed in the position of "subvalues" of the broader concept of self-realization (Redish, 1982).

Similarly, Reed's (1997) more recent attempt at unifying the array of values associated with the First Amendment into a single "meta value" begins at the individual level, with an emphasis on the "autonomy of consciousness." Clearly, the autonomy principle, which has traditionally been central to individualist interpretations of the First Amendment is prominent here. However, Reed (1997) then argues for an expanded notion of autonomy that incorporates both the individual and his/her role as part of a larger community (see also Wells, 1997). Thus, as with the self-realization approach, the autonomy of consciousness approach has individual autonomy as its evaluative foundation, but relates the achievement of such autonomy to the achievement of broader, community-based objectives.

In sum, individualist interpretations of the First Amendment focus primarily on how free speech benefits the individual citizen. Values such as individual liberty, self-development, and autonomy factor heavily in individualist interpretations. Within individualist interpretations, the benefits of the First Amendment may be derived from either the sending or the receiving of speech (or both). In addition, a focus on the individual can lead to the achievement of more community-based First Amendment values, such as effective democracy and community stability. However, such values generally are perceived as secondary to more individualist-oriented goals, or they are perceived as objectives best achieved via the preservation and promotion of individual rights of self-expression.

The collectivist interpretation of the First Amendment focuses on creating a speech environment in which as many citizens as possible have the means to express their views and the means to have access to as many other viewpoints as possible. Thus, free speech within the collectivist context refers not to the action of an individual, but to a "social state of affairs" (Fiss, 1986, p. 1411). Adherents to the collectivist perspective tend to emphasize the community-based objectives associated with the First Amendment, such as stability, collective decisionmaking, and, most often, the relationship between free speech and effective democracy. According to Owen Fiss (1996), a well-known advocate of the collectivist interpretation:

Speech is valued so importantly in the Constitution . . . not because it is a form of self-expression or self-actualization but rather because it is essential for collective self-determination. Democracy allows the people to choose the form of life they wish to live and presupposes that this choice is made against a background of public debate that is, to use the now famous formula of Justice Brennan, "uninhibited, robust, and wide-open." (p. 3)

The First Amendment thus functions as the means to ends that explicitly prioritize the welfare of the collective citizenry over the welfare of the individual speaker. Some scholars have concluded that the logic of providing special protection for speech extends from the fact that the benefits of free speech to the community far outweigh the benefits to the individual (Farber, 1991, p. 583). Reflecting this assignment of value, a central guiding principle of the collectivist approach is that, "what is essential is not that everyone shall speak, but that everything worth saying shall be said" (Meiklejohn, 1948/1972, p. 25).

From an applicational standpoint, the key point of departure of the collectivist interpretation from the individualist interpretation is that the collectivists reject the absolutist interpretation of the First Amendment's command that Congress make no law abridging freedom of speech or of the press. From the collectivist perspective, the phrasing of the First Amendment clearly grants Congress the authority to make laws that enhance the free speech environment. As Meiklejohn (1948/1972) argues, "by these words, Congress is not debarred from all action upon freedom of speech. Legislation which abridges that freedom is forbidden, but not legislation to enlarge and enrich it" (p. 16). Indeed, many proponents of the collectivist interpretation of the First Amendment advocate the imposition of government regulations (such as campaign spending limits) in order to correct perceived inadequacies in the current system of communicating information to citizens (e.g., Fiss, 1996; Sunstein, 1993), whereas individualist interpretations typically oppose any government regulation of speech as an infringement on individual autonomy.

This difference in applicational approach extends primarily from the fact that legislation designed to enlarge and enrich free speech from a collectivist standpoint can simultaneously impose limitations on the free speech of certain individuals. Obviously, from a collectivist standpoint such infringements on individual freedoms are generally acceptable, given that the First Amendment's primary responsibility is seen as being to the citizenry as a whole and its key purpose is seen as promoting and maintaining an environment that best ensures a free flow of diverse ideas. Fiss (1990) illustrates this acceptance through a comparison between the individualist interpretation's emphasis on the principle of autonomy and the collectivist interpretation's emphasis on the principle of public debate:

what the autonomy principle provides, is a very strong presumption against state interference with speech. Under the public-debate principle, there is no such presumption. The state stands on equal footing with other institutions and is allowed, encouraged, and sometimes required to enact measures or issue decrees designed to enrich public debate, even if that action entails an interference with the speech of some and thus a denial of individual or institutional autonomy. (p. 142)

This possibility for infringement on individual freedoms is apparent in Meiklejohn's (1948/1972) well-known illustration of the "town meeting" as the "model by which free political procedures may be measured" (p. 22). Meiklejohn (1948/1972) described the town meeting as a function that all members of the community are free to attend in order to discuss matters of public interest. Within this context, each participant "has a right and a duty to think his own thoughts, to express them, and to listen to the arguments of others. The basic principle is that the freedom of speech shall be unabridged" (Meiklejohn, 1948/1972, p. 22). However, such meetings are presided over by a moderator, whose responsibilities include calling the meeting to order and enforcing rules of order, such as limiting participants' remarks to "questions before the house," and preventing interruptions of a speaker who "has the floor." Clearly, then, there are abridgements of speech within the traditional town meeting format. Without these abridgements, the meeting would be ineffectual in accomplishing the goals for which it was convened. Thus, "The meeting has assembled, not primarily to talk, but primarily by means of talking to get business done. . . . It is not a dialectical free-for-all. It is self-government" (Meiklejohn, 1948/1972, p. 23).⁽⁵⁾

In recent years, the collectivist interpretation of the First Amendment seems to have picked up momentum, due in large part to the increasing sense that the development of the means of communications in the United States has followed a path that has diminished the individual citizen's capacity to share in the exchange of ideas and information and has thereby degraded the degree to which the First Amendment promotes effective self-government (e.g., Barron, 1967; Ingber, 1984). The increasing reliance on media technologies for information, the increasing concentration of media organizations, and the inherently commercial orientation of media industries are seen as a combination of factors that undermine the collectivist notion of the First Amendment (e.g., Fiss, 1990; Sunstein, 1993). The first component of this argument involves the fact that the process of public debate and deliberation has shifted primarily from the interpersonal to the media realm (Page, 1996), thereby allowing a much narrower segment of the population to participate directly in the process. Second, the economic imperatives inherent in what has become the primary realm of public deliberation undermine the expectation of vibrant exchange of diverse ideas and viewpoints. An early milestone in the development of this argument is the famous 1947 report from the Commission on Freedom of the Press (1947), which argued that the increasing influence of economic imperatives on media owners led to a decrease in the diversity and depth of information presented, as owners focused on presenting content that attracted the largest possible audience (see also Barron, 1967). More recently, Fiss (1990), among others (e.g., Bollinger, 1991) has argued that there is an inevitable conflict between the economic imperatives that guide media organizations and the need for citizens to be supplied with a sufficient quantity and diversity of information necessary for effective self-governing decisionmaking.

A key point of these discussions is that it is dangerously myopic to consider the government as the only institution capable of restricting collective-level First Amendment freedoms. Media organizations and other non-governmental institutions have the capacity to degrade the free speech environment as well (see Ingber, 1984, 38-40). According to Sullivan (1995), "Some nominally private entities . . . can wield as much power as government (or even more) over the content and distribution of speech. In this view, for example, corporations, unions, political parties, universities, broadcast media, and organized crime syndicates, to name a few, might have more functional power to shape public discourse than does government" (p. 955). This point has been explicitly acknowledged by the Supreme Court. In the well-known Associated Press v. United States (1945) case, the Court stated that "Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests" (p. 20).

The potential for private institutions to abridge collectively conceptualized First Amendment freedoms, and thereby undermine the democratic process, leads many advocates of the collectivist perspective to advocate that government authority be viewed less as a threat to free speech and more as a means of promoting free speech (Barron, 1967; Fiss, 1990, 1996; Sunstein, 1993). Government's capacity to limit free speech abridgements created by other institutions would thus create an environment that is more conducive to effective self-determination and self-government. From this standpoint, government actions taken against individuals or institutions, such as publishers or broadcasters, who are exercising their capacity to restrict the flow of ideas, may be "examples not of a denial of sovereignty but an exercise of it" (Schauer, 1986, p. 778).The First Amendment and Communications Policymaking

The preceding sections outlined two distinct, though potentially inter-related, conceptualizations of the First Amendment, each of which draws upon a different set of values or objectives that have been associated with the First Amendment. From a policymaking standpoint, an individualist-oriented First Amendment functions primarily as a constraint on policymakers' actions. In contrast, a collectivist-oriented First Amendment functions more as a distinct policy objective to be pursued, rather than as a boundary line to be respected in the pursuit of other policy objectives. Obviously, these two interpretations represent very different roles for the First Amendment in communications policymaking. The Supreme Court often has been characterized as generally favoring the individualist interpretation of the First Amendment over the collectivist interpretation (see Ingber, 1990; Post, 1993). Post (1993) goes so far as to describe the Court as "largely hostile" (p. 1109) to the collectivist interpretation. Such observations provide an important indication of which interpretation, as reflected in specific communications policies, is likely to withstand judicial scrutiny.

That any one interpretation should predominate in the Court's First Amendment analysis -- or in policymakers' analysis, for that matter -- is unsettling, given that: (a) the values associated with the First Amendment are equally distributed between the individual and the collective levels (see Table One); and (b) a positive relationship between individualist and collectivist approaches has not been convincingly demonstrated. It would seem, in fact, that even protecting individual speech autonomy requires significant attention to the broader speech environment.

Recall that six of the seven First Amendment values outlined above drew at least part of their value from the extent to which audience members had the opportunity to receive a diverse array of information from a diversity of sources. From this standpoint, the protection and promotion of First Amendment rights for listeners seems essential for effectively serving even a reasonable range of First Amendment values. For audience interests to be effectively served, there must be at least some emphasis placed on the collectivist interpretation of the First Amendment. Many individualist values, such as the development of one's faculties and effective decisionmaking, also draw heavily from the reception of information (see Table One); thus, it would be a mistake to associate listener rights with the collectivist interpretation of the First Amendment and speaker rights with the individualist interpretation. However, maximizing an individual's opportunities to receive a diversity of information requires more attention to the environment in which information is transmitted and received than does maximizing an individual's opportunities to speak. If we value the reception aspect of the First Amendment, granting everyone an absolute First Amendment right to speak is meaningless unless they may do so in an environment that effectively allows their speech to be accessed by others. Only then can the network externalities associated with free speech be realized. This linkage is well-articulated by Scanlon (1979), who noted that, "The central audience interest in expression . . . is the interest in having a good environment for the formation of one's beliefs and desires" (p. 527, emphasis added). Thus, a free speech interpretation that adequately accounts for the value inherent in audience exposure to speech is most likely also concerned with pursuing the collectivist notion of a vibrant free speech environment (see Stern, 1990).

The Supreme Court offered its most explicit acknowledgment of the value of the collectivist interpretation of the First Amendment in its decision regarding the constitutionality of the Fairness Doctrine (Red Lion Broadcasting v. Federal Communications Commission, 1969). The FCC had instituted the Fairness Doctrine under the premise that a primary function of mass communication in a democracy was to develop "an informed public opinion through the dissemination of news and ideas concerning the vital public issues of the day" (Federal Communications Commission, 1949, p. 1249). As this statement suggests, the Fairness Doctrine clearly reflected a collectivist approach to the First Amendment in communications regulation, given its emphasis on free speech's political function (though later assessment would suggest that the Fairness Doctrine may have undermined this conceptualization of the First Amendment as much as, or more than, it undermined the individualist conceptualization [Federal Communications Commission, 1985; Hazlett & Sosa, 1997]).⁽⁶⁾ This interpretation was upheld by the Supreme Court when the Fairness Doctrine came under challenge. According to the Court, the Fairness Doctrine, despite its infringements on the editorial discretion of broadcasters, "enhanced rather than abridged the freedoms of speech and press protected by the First Amendment" (Red Lion Broadcasting v. Federal Communications Commission, 1969, p. 375). The Court found that the Fairness Doctrine was not "inconsistent with the First Amendment goal of producing an informed public capable of conducting its own affairs" (Red Lion Broadcasting v. Federal Communications Commission, 1969, p. 392). In the years following the Red Lion decision, however, the Court made it clear that its First Amendment analysis in that case was based largely upon its perception of the unique "scarcity" of the broadcast spectrum (e.g., Federal Communications Commission v. League of Women Voters, 1984). Thus, the Court has offered few other predominantly collectivist interpretations of the First Amendment, and the Red Lion decision stands out as something of an anomaly (Post, 1993), particularly given the diminished relevance of the scarcity rationale over the past three decades (see Coase, 1959; Fowler & Brenner, 1982; Spitzer, 1989).⁽⁷⁾

It is important to emphasize that the point here is not to advocate an exclusively collectivist interpretation of the First Amendment. Indeed, such a one dimensional interpretation runs into difficulties similar to those of the purely individualist interpretation when it encounters the extensive history of constitutional thought that has emphasized the primacy of individual rights and a history of Supreme Court jurisprudence that emphasizes individual autonomy (see Ingber, 1990). Rather, the point here is to emphasize that, when we draw from the values associated with the First Amendment, collectivist approaches to free speech have comparable claims to prominence in First Amendment analysis as individualist interpretations. Consequently, it may be that there is a central balancing test inherent in the First Amendment that has been overlooked.

As was mentioned at the outset, First Amendment analyses employed by the courts involve weighing the First Amendment rights of the speaker against other compelling government interests. This traditional balancing test involves asking whether the gravity of the "evil" sought to be prevented by the government regulation justifies the extent of the infringement on free speech imposed by the regulation. First explicitly articulated by Chief Judge Learned Hand in United States v. Dennis (1950), the test was later adopted by the Supreme Court in deciding the appeal of the Dennis decision (Dennis v. United States, 1951), and has since become the central component of First Amendment analysis (see Frantz, 1962; Posner, 1986).

This general First Amendment balancing process has grown more complex over time. Today, different standards of scrutiny have been developed for "content specific" and "content neutral" regulations. Content-specific regulations are based on the content of the material being communicated (e.g., violence or sex). Content-specific regulations must satisfy a "strict scrutiny" standard, which requires that the regulation serve a "compelling" government interest and be the least restrictive means of serving that interest (see Turner Broadcasting System, Inc. v. Federal Communications Commission, 1994). Content-neutral regulations, on the other hand, impose speech infringements that are not based on the nature of the content being communicated (e.g., noise restrictions around a hospital). Such regulations are subject to a less stringent "intermediate" scrutiny standard, which requires that the regulation serve a "substantial" government interest, as opposed to a "compelling" government interest, and that the regulation imposes an infringement on First Amendment freedoms that is no greater than is essential to the furtherance of that interest (see Stone, 1987; United States v. O'Brien, 1968).

This balancing process may reflect, in some instances, an inaccurate dichotomy between the suppression and non-suppression of speech. When we consider free speech from both individualist and collectivist perspectives, this traditional dichotomy that has provided the framework for First Amendment analyses can break down. This is because the government interest -- be it compelling or substantial -- that is on the other side of the balancing equation may itself be a First Amendment interest. In some instances, the governmental interests that motivate efforts at speech regulation involve issues such as national security, safety, or other protections from harms that can arise from speech. In such instances, the traditional balancing approach makes sense. In other situations -- and particularly in many communications policy contexts -- these compelling or substantial government interests involve issues such as diversity, access, and competition, which bear direct relationships to the First Amendment (Napoli, in press) and are particularly vital to collectivist interpretations of the First Amendment. Thus, the balancing test at issue is not always one of the First Amendment versus competing non-speech-related government interests. Instead, it may be one of individual versus collective First Amendment rights. The distinction can be illustrated in a review of three recent (and in some cases, ongoing) policy issues: (a) the regulation of adult content on the Internet; (b) the cable television must-carry rules; and (c) unaffiliated ISP access to cable systems.

Congress has become increasingly concerned about the availability of explicit adult materials over the Internet, and the relative ease with which children can access such material. This concern has produced two pieces of legislation. The first, the Communications Decency Act (1996), made it a felony for any person to use a "telecommunications device" to knowingly transmit obscene or indecent material to minors or to display such materials in a manner that makes them available to any person under 18 years of age. The Supreme Court struck down the CDA as unconstitutional (Reno v. ACLU, 1997).⁽⁸⁾ Applying a strict scrutiny balancing test, the Court concluded that the Act represented an unacceptable violation of the First Amendment primarily because it was not sufficiently narrowly tailored to serve the government interest that motivated it (in this case, obviously, to protect minors from adult content). The Court found the language of the statute unacceptably vague, particularly its definitions of the terms "indecent" and "patently offensive," which were central to the main provisions of the CDA (Reno v. ACLU, 1997). The Court also found the Act overbroad, in that, in its efforts to protect children, it infringed upon the constitutional rights of adults. In sum, the Supreme Court engaged in the traditional process of weighing government interests against individual free speech rights and found that, in this case, although the government's interest was legitimate and compelling, its means of pursuing this interest represented an unacceptable level of infringement on free speech rights.

In response to this decision, Congress passed the Child Online Protection Act (1998). The title change is itself significant in that it more clearly reflects the compelling government interest motivating the legislation. This Act still makes it a crime to knowingly make adult content available to minors, but Congress attempted to address the Supreme Court's objections to the CDA, primarily by narrowing its definition of relevant content to "material that is harmful to minors" and providing a detailed definition of material that is harmful to minors.⁽⁹⁾ In addition, the Child Online Protection Act (1998) limits its restrictions to speech on the World Wide Web, whereas the CDA applied to the entirety of the Internet. The Child Online Protection Act (1998) also focuses exclusively on those who make content available for commercial purposes.

Like the CDA, the Child Online Protection Act was immediately challenged in court (see Zick, 1999). Like the CDA, it seems likely to reach the Supreme Court. It remains to be seen how the Court will respond to this revised effort to restrict children's access to adult Internet content, and whether the means employed to achieve the ends are judged to be a sufficiently narrow infringement on free speech.

These actions by Congress and the Supreme Court, represent the traditional balancing test scenario in First Amendment jurisprudence. In this case, the Court was required (as, theoretically, was Congress, in deciding whether to enact the legislation) to balance the First Amendment rights of citizens against the governmental interest in protecting children from adult content and the emotional and psychological damage that can be associated with exposure to such content.⁽¹⁰⁾ This case clearly involves balancing a free speech interest against another compelling, non-speech-related, government interest, and thus the traditional balancing analysis accurately reflects the nature of the policy at issue.

The cable television must-carry rules represent an entirely different situation. The must-carry rules require that cable systems carry the signals of local broadcast stations. The must-carry rules have long been a point of contention among Congress, the cable industry, broadcasters, and the FCC (see Geller, 1995). The constitutionality of the must-carry rules was finally decided by the Supreme Court in 1997 (Turner Broadcasting System, Inc. v. Federal Communications Commission, 1997). The Court employed traditional First Amendment analysis. In a prior decision, the Court identified the government interests at issue as: "(1) preserving the benefits of free, over-the-air local broadcast television, (2) promoting the widespread dissemination of information from a multiplicity of sources, and (3) promoting fair competition in the market for television programming" (Turner Broadcasting System, Inc. v. Federal Communications Commission,1994, p. 662). The Court then weighed these interests against the infringements on the free speech rights of cable systems and programmers (who were being denied programming autonomy). It is important to note that the Court had previously decided that the must-carry rules were content-neutral, and were therefore subject only to intermediate scrutiny (Turner Broadcasting System, Inc. v. Federal Communications Commission, 1994), although the Court was sharply divided on this issue.⁽¹¹⁾ As the Court noted, the must-carry rules impose a restraint on cable operators' editorial discretion and reduce the opportunities for cable programmers to receive carriage on the remaining available channels (Turner Broadcasting System, Inc. v. Federal Communications Commission, 1997, p. 1198). The Court concluded that the First Amendment impositions placed on cable operators were not sufficient to outweigh the government interests being pursued, and that the must-carry rules pursued these interests in a manner that was not substantially broader than necessary to do so (the evaluative criteria associated with the "intermediate scrutiny" standard).

The key bit of slippage in this analysis, however, is that the majority decision of the Court focuses on whether the pursuit of preserving over-the-air broadcasting and promoting diversity of sources and competition represents an unacceptable level of intrusion on the First Amendment rights of cable programmers, when in fact First Amendment concerns occupy both sides of the analysis. Nowhere in the opinion does the Court acknowledge the First Amendment component of the government's interests. From a collectivist standpoint, promoting competition among speakers, and increasing the diversity of information sources are directly related to the First Amendment goals of promoting a vibrant free speech environment. This subtle but important point of distinction only emerges in a concurring statement by Justice Breyer. Justice Breyer observes that although must-carry "extracts a serious First Amendment price . . . there are important First Amendment interests on the other side as well" (Turner Broadcasting System, Inc. v. Federal Communications Commission, 1997, p. 1204). Breyer later references earlier Supreme Court decisions, including United States v. Midwest Video Corp. (1972) and Associated Press v. United States (1945) to clarify that the objectives of the must-carry rules reflect "what 'has long been a basic tenet of national communications policy,' namely that 'the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public,'" and that this policy "in turn, seeks to facilitate the public discussion and informed deliberation, which, as Justice Brandeis pointed out many years ago, democratic government presupposes and the First Amendment seeks to achieve" (Turner Broadcasting System, Inc. v. Federal Communications Commission, 1997, p. 1204, citations omitted, emphasis added). The must-carry rules represent an issue in which, to use Justice Breyer's words, there are "First Amendment interests on both sides of the equation" (Turner Broadcasting System, Inc. v. Federal Communications Commission, 1997, p. 1204).

The difference between the analytical approach reflected in the Court's decision and the one reflected in Breyer's concurrence represents the difference between relying primarily on an individualist interpretation of the First Amendment as opposed to integrating both the individualist and the collectivist interpretations into an analysis that more accurately reflects the full range of values and functions associated with freedom of speech. In the Court's analysis, the only First Amendment rights that are explicitly identified are those of the cable industry. Any community-based right to the widespread dissemination of information from diverse sources, which previously has been established as an important component of the First Amendment, is overlooked. Instead, it is lumped with the concerns for competition and the economic stability of the broadcast industry in the "government interest" category (Turner Broadcasting System, Inc. v. Federal Communications Commission, 1997). Clearly, however, the must-carry policy is motivated -- or at least potentially justified -- by a collective conceptualization of free speech that views expanding the range of voices available to citizens as central to achieving the objectives that underlie the First Amendment. Whether the must-carry rules accomplish this objective is an equally important issue that should have been, from the outset, the central analytical question regarding the constitutionality of these rules.

Given the discussion above, which suggests that collectivist interpretations of free speech seem to have comparable claim to the First Amendment as individualist interpretations, it would seem that the appropriate way to analyze the must-carry issue is not in terms of weighing the First Amendment against another interest, but instead in terms of weighing the individualist interpretation and its associated values against the collectivist interpretation and its associated values. The central analytical question in this case then shifts from, Is this interest compelling enough to override First Amendment concerns? to Does this policy sufficiently enhance the speech environment to warrant the level of intrusion on individual speech rights it imposes? It is within the context of this central balancing question that all of the issues and arguments associated with the must-carry controversy should then be assessed. Similarly, this question should guide policymakers, policy analysts, and judges in any instance in which the government's stated interest involves preserving or enhancing the speech environment.

The extent to which the First Amendment will factor into the ultimate resolution of the "open access," or "forced access" (depending upon one's perspective on the issue) issue is, at this point, unclear. Other issues, such as the appropriate scope of local government authority over Internet services and the promotion of innovation in Internet products, services, and business models may ultimately be the driving concerns that resolve this issue (see Bar, et al., 1999; Esbin, 1998; Lathen, 1999; Oxman, 1999; Werbach, 1999). However, as was the case with the cable must-carry rules, there are First Amendment dimensions to both sides of this controversy.

In their challenge of the city of Portland's decision to impose unaffiliated ISP access requirements on cable television franchisees, AT&T argued that their First Amendment rights were being violated, given that they were being forced to transmit the ideas of other speakers. Judge Owen Panner rejected this argument, stating that "The open access requirement is an economic regulation" (AT&T Corp. v. City of Portland, 1999, p. 1154). Further, he argued that there was no free speech violation given that AT&T had already volunteered to give cable subscribers access to competing ISPs (albeit at additional cost). From this perspective, individual First Amendment freedoms would not appear to be at issue in this case.

Judge Panner also noted that even if the First Amendment were relevant, the open access requirements would withstand the O'Brien test. According to Judge Panner, "The open access provision is within constitutional power of the City and County, it furthers the substantial government interest in preserving competition, the governmental interest is unrelated to the suppression of free speech, and the incidental restriction on free speech is no greater than necessary" (AT&T Corp. v. City of Portland, 1999, p. 1154). Although Judge Panner claimed that the O'Brien test was not necessary in the assessment of the open access rules (see above), given the degree to which this controversy mirrors the must-carry controversy (in terms of granting outside content providers access to cable networks), it seems likely that assessments of the access requirement's impositions on individual First Amendment freedoms will play a prominent role in future judicial considerations of this issue (Maher, 1999).

On the other side of the equation is the need to promote and protect a robust free speech environment that benefits the collective. Much has been made of the potential for the ISPs exclusively affiliated with cable systems (e.g., @Home, RoadRunner) to filter out, degrade, or give substandard placement to content or service providers not affiliated, or not engaged in revenue-sharing agreements, with the ISP (Bar, et al., 1999; Werbach, 1999). Such practices raise collectivist First Amendment concerns. In comments filed with the FCC urging the Commission to issue a ruling on the issue, a coalition of consumer and public interest groups declared (in contrast to Judge Panner's conclusion) that the open access issue "is more than economic. The Commission's public interest mandate requires it to promote the free flow of information in the marketplace of ideas" (p. 2). Echoing this perspective, Maher (1999) argues that an open access requirement "is fundamental to the goal of providing subscribers with the diversity of information sources intended by the First Amendment" (p. 228; for a discussion of the diversity principle, see Napoli, 1999a). From this perspective, the government interests underlying potential open access regulations extend beyond economic concerns such as technological and service innovation. These interests also extend into the realm of maximizing the degree to which the Internet is a robust environment for both the dissemination and reception of information from a variety of sources. Yet, Judge Panner's brief First Amendment analysis only considered the individualist dimension of the First Amendment, neglecting the possibility that the substantial government interest at issue may be deeply intertwined with the First Amendment. Thus, when he stated that "the governmental interest is unrelated to the suppression of free speech," (AT&T Corp. v. City of Portland, 1999, p. 1154), he neglected the associated issue of whether the governmental interest was related to the promotion of free speech.

As was mentioned at the outset, the degree to which the First Amendment will factor into the resolution of this controversy is unclear at this stage in the issue's development. From the individualist standpoint, the courts have, at this point, concluded that the First Amendment generally is not relevant. From the collectivist standpoint, First Amendment concerns revolve around potential harms, which may not carry much weight in light of the development of alternative means of accessing the Internet. Ultimately, economic issues pertaining to innovation in technology and services may drive the decisionmaking of both policymakers and the courts.

However, should the First Amendment factor prominently in the resolution of this issue, this analysis, as well as the analysis of the must-carry controversy, illustrates the necessary analytical reorientation that needs to take place in many instances involving the application of the First Amendment to media regulation issues. This analytical reorientation places the individualist and collectivist interpretations of the First Amendment on more equal footing, an approach that seems wholly justified when we analyze the body of thought devoted to the underlying rationales for the First Amendment. The current analytical orientation requires that values associated with a collectivist interpretation of the First Amendment be placed in the category of "compelling" or "substantial" government interest, which must then go head-to-head with the First Amendment. This situation places the burden of proof much more heavily on the collectivist side and misrepresents the degree to which policy objectives such as diversity are themselves outgrowths of central values associated with the First Amendment (see Napoli, in press). It is certainly not surprising, therefore, that many observers of the Supreme Court have concluded that the Court has favored individualist interpretations of the First Amendment over collectivist interpretations (Ingber, 1990; Post, 1993). From the Supreme Court's standpoint, the collectivist interpretation and its associated values generally do not exist within the hallowed realm of the First Amendment. Instead, this aspect of the First Amendment is burdened with the much less potent label of "compelling" or "substantial" government interest.

It is worth reemphasizing that the point here is not to advocate the supremacy of the collectivist interpretation of the First Amendment over the individualist. Rather, the point is that, when we examine the First Amendment in terms of the values that have traditionally underlaid its development and implementation, collectivist values share equal prominence with individualist values. Absent compelling evidence that the individualist approach is the best means of achieving collectivist objectives, we must conclude that a thorough and complete application of the First Amendment requires consideration of both conceptualizations. Unfortunately, the current approach to First Amendment analysis tends to misplace collectivist interpretations outside the bounds of the First Amendment when it comes to balancing the interests at stake in a particular policy decision. Correcting this situation would involve the introduction of a new balancing test to First Amendment analysis. This balancing test would focus on weighing individual rights of self-expression against the collective value of a diverse and robust free speech environment, with both sides of the equation falling under the umbrella of the First Amendment. This new balancing test obviously would not be applicable to all communications policy issues, given that in some instances the government interest is not First Amendment-related (e.g., national security, protection of children). This test may not make legal and policy decision making any easier, or bring greater consistency to the process; however, it would assure that the analytical structure in which these decisions are reached better reflects the true scope and breadth of the First Amendment. Ultimately, the balancing test outlined above suggests that the First Amendment can simultaneously encourage and restrain media regulation. Embracing this somewhat paradoxical situation is essential if the full scope of the social values inherent in the First Amendment are to be reflected in communications policymaking.

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1. For a review of the critiques of each of these First Amendment functions, see Napoli (in press, Chapter Three).

2. It is important to note that, although the origins of the explicit "marketplace of ideas" terminology are frequently attributed to Justice Brennan in Lamont, DBA Basic Pamphlets v. Postmaster General (1965), the metaphor was first explicitly articulated in Supreme Court decisionmaking in a concurring statement by Justice Douglas (with Justice Black concurring) in United States v. Rumely (1953). See Napoli (1999b).

3. For counterarguments to Stewart's (1975) assertion of a logical separation between the speech and press clauses of the First Amendment, see Lange (1975).

4. Rumble (1994) traces how the right to receive information was first associated with the due process clause of the Fourteenth Amendment before becoming explicitly recognized by the Supreme Court in the 1940s.

5. The town meeting analogy has, however, been criticized on a number of grounds (see Massaro, 1993; Post, 1993). The primary criticism is that the analogy offers a somewhat paradoxical situation in which self-determination is seen as central to all aspects of decisionmaking except those decisions relating to the structures within which the decisionmaking process is located (Post, 1993). Thus, according to Post (1993), the weakness in the Meiklejohn analogy is that "it reflects an insufficiently radical conception of the reach of self-determination, which encompasses not merely the substance of collective decisions, but also the larger framework of function within which such collective decisionmaking is necessarily conceived as taking place" (p. 1117). For a thorough critique of the collectivist approach to the First Amendment, see Powe (1987).

6. The FCC concluded that the Fairness Doctrine was having a "chilling effect" on broadcasters, thereby inhibiting them from presenting controversial issues (Federal Communications Commission, 1985), a conclusion supported in research by Hazlett and Sosa (1997). Thus, the Fairness Doctrine not only infringed on the First Amendment rights of broadcasters, it appears to have also degraded the overall speech environment.

7. As many critics have noted, the notion that the broadcast spectrum is uniquely scarce, and therefore deserving of different regulatory treatment buckles under the fact that: (a) all resources are essentially scarce; and (b) advances in media technology, such as signal compression and wireline delivery of television signals have undermined whatever scarcity initially existed (Coase, 1959; Federal Communications Commission, 1985; Fowler & Brenner, 1982; Spitzer, 1989)

8. For a thorough account of the legislative and judicial activities leading up to the Supreme Court's decision, and a review and discussion of the Court's reasoning, see Jacques (1997).

9. The Child Online Protection Act defines material that is harmful to minors as:

Any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that: (A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest; (B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and (C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors. (47 U.S.C. 231(e)(6))

10. Obviously, all parties involved in this issue, whether they stand for or against the Child Online Protection Act, share the same assumption that minors do not possess a First Amendment right to receive adult content -- at least not a right that overcomes the compelling government interest in preventing their exposure to such content.

11. The Court was split 5-4 on the issue of whether the must-carry provisions were indeed content neutral. According to Justice Kennedy, in his decision upholding the content-neutrality of the rules, "Congress' overriding objective was not to favor programming of a particular content, but rather to preserve access to free television programming for the 40 percent of Americans without cable" (Turner Broadcasting System, Inc. v. Federal Communications Commission,1994, p. 646). However, Justices O'Connor, Scalia, Ginsburg, and Thomas disagreed with the interpretation of Justice Kennedy and the rest of the Court. In her opinion, Justice O'Connor wrote that "looking at the statute at issue, I can't avoid the conclusion that its preference for broadcasters over cable programmers is justified with reference to content" (Turner Broadcasting System, Inc. v. Federal Communications Commission, 1994, p. 676). Justice O'Connor then references a series of statements within the statute that suggest that the must-carry provisions are content motivated. In particular, she cites Congress' statements that the enhancement and preservation of a diversity of viewpoints and local origination of programming (specifically, news and public affairs) justify the must-carry provisions. Consequently, she concludes that the must-carry provisions should be subjected to the strict scrutiny test required of all content-based regulations, not the intermediate scrutiny of the O'Brien test. In sum, this decision illustrates that determining whether a specific policy is content-neutral is far from a straightforward task.