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Mass Media Law

The Printing Press to the Internet

Arthur S. Hayes

Digital media law is now the dynamic legal territory. Mass Media Law: The Printing Press to the Internet is a textbook designed to introduce students to the panoply of legal theories raised by the Internet revolution as well as those supporting traditional media. The book takes a historical approach beginning with the printing press and the telegraph and proceeding to the digital technologies of today, such as social media and search engines. Concepts such as defamation, broadcast regulation, privacy, and free expression are covered along with new media legal theories including Internet exceptionalism, cyber libertarianism, and digital speech and democratic culture. These are introduced to explain why traditional theories such as First Amendment medium-specific analysis, common carriage, and network neutrality are just as relevant today as they were in the early twentieth century. In order to help readers develop critical reasoning skills, each chapter opens with a highly readable realworld vignette and goes on to identify and explain legal doctrines and tests. Key passages from court opinions are highlighted, and each chapter closes with a list of online media law resources and thought-provoking questions, including legal hypotheticals, to give readers a solid understanding of the area in question. Mass Media Law is designed to be the main text and a valuable resource for undergraduate and graduate courses covering media, mass communication, free expression, and journalism law.


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11. Broadcast & Cable Television Regulation


C H A P T E R E L E V E N Broadcast & Cable Television Regulation CONTROVERSY: “Indecent Exposure: FCC v. Fox and the End of an Era.” “Why Regulate Broadcasting?” “Red Lion and Pacifica: Are They Relics?”1 As the titles of these three law review articles indicate, many commentators had anticipated big things from Federal Communication Commission (FCC) v. Fox Television Stations, Inc., perhaps the end of the decades-old First Amendment broadcast regulatory model.2 Under the model, the Court allows Congress and the FCC to regulate over-the-airways broadcasting based on standards that are fundamentally different than print, cable, the Internet, and any other medium. That approach is unconstitutional, critics say, because it relegates broadcasters to the lowest level of free expression protection among media speakers. It’s indefensi- ble, they argue, because the Court’s justifications for such unequal treatment—the spec- trum scarcity, pervasiveness, and unique accessibility to children doctrines—are unsupportable in our era of spectrum abundance, media diversity, and filtering technolo- gies that allow parents to block out unwanted programming. Moreover, it makes little sense to apply a unique First Amendment standard to broadcast programming when TV content is syndicated on Cable TV and streamed on the Internet, they say. The Court, however, saw things differently. FCC v. Fox Television Stations, 132 S.Ct. 2307 (2012), was only about the legitimacy of the FCC’s new fleeting expletive indecency policy, which did not require consideration of the First Amendment spectrum scarcity, pervasiveness, or accessibility doctrines, the Court said.3...

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