"Chilling" the Internet? Lessons from FCC Regulation of Radio Broadcasting

Congress included the Communications Decency Act (CDA) in the Telecommunications Act signed into law on February 8, 1996. The bill seeks to outlaw the use of computers and phone lines to transmit "indecent" material with provisions of jail terms and heavy fines for violators. Proponents of the bill argue it is necessary to protect minors from undesirable speech on the Internet. The CDA was immediately challenged in court by the American Civil Liberties Union, and the special 3-judge federal panel established to hear the case recently declared the Act unconstitutional.

Yet, its ultimate adjudication remains in doubt. Ominously, the federal government has long experimented with regulations designed to improve the content of "electronic" speech. The Fairness Doctrine, for example, imposed on radio and television stations until 1987, was an attempt to establish a standard of "fair" coverage for important public issues. The deregulation of content controls for AM and FM radio programming, first under the Carter FCC in early 1981, and then under the Reagan FCC (which abolished the Fairness Doctrine in 1987), led to profound changes in radio markets.

Specifically, the volume of informational programming increased dramatically immediately after controls were ended--powerful evidence of the potential for regulation to impose a "chilling effect" on free speech.