Document Type

Working Paper

Publication Date

10-15-2008

SSRN Discipline

Legal Scholarship Network; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Public Law eJournals; Administrative Law eJournals; Antitrust & Regulated Industries eJournals; LSN Subject Matter eJournals; Innovation Disciplines eJournals; Law School Research Papers - Public Law & Legal Theory; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; IRPN Subject Matter eJournals; Innovation Research & Policy Network

Abstract

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 Commissions efforts to enforce the public interest doctrine have done little to change the programming behavior of commercial broadcasters notwithstanding the Supreme Courts 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 Internets 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 nontransparent 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

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