Media Policy and Free Speech: The First Amendment at War with Itself

Two principal pillars of media policy are communications and copyright law. In each discipline, there are pluralists who seek greater public access to the means of communications (communications policy pluralists) and communicative content (copyright pluralists). Historically, communications policy pluralists have sought government interventions in the marketplace in order to increase access to mass communications. Copyright pluralists, by contrast, have fought against regulatory interventions they argue unduly strengthen the rights of copyright holders to deny access to content.

In pursuing these strategies, the pluralists have used First Amendment arguments that are in tension with each other and ultimately unavailing in the courts. These arguments, drawing on the rhetoric of free speech rights and values, shortchange the complexity of free speech interests at stake when the government reallocates speech opportunities. This article argues that only by abandoning traditional First Amendment categories of review will pluralists and courts arrive at an analysis that fairly takes into account speakers' interests in controlling their speech and the public's interests in loosening that control. The article shows how reconciling communications and copyright pluralists' First Amendment positions, and developing a new First Amendment jurisprudence, becomes more important as the pluralist agenda matures to include positions on net neutrality, unlicensed spectrum, and compulsory copyright licenses.