RE-EVALUATING MEDIA REGULATION IN A MEDIAENVIRONMENT OF NEARLY UNLIMITEDENTERTAINMENT PROGRAMMING AND AMPLE
ALTERNATIVE CHANNELS OF COMMUNICATION†
Patrick M. Garry*
INTRODUCTION
The outline for this Symposium posed several questions. With
respect to its focus on regulation of media outlets, the outline asked
whether some additional regulation of political speech is desirable. For
instance, should lawmakers revive some form of the Fairness Doctrine
and apply it to talk radio? Conversely, with respect to indecent media
entertainment, the outline suggested that perhaps regulation in thisarea has become too restrictive or outmoded.
In stepping back and taking a broader view of the questions posedin this Symposium, a certain irony becomes apparent. Even while
exploring new ways to regulate political speech, some question the oldways of regulating indecent commercial media entertainment. In effect,
it almost seems as if political speech occupies a lower rung on the ladderof constitutional importance than does indecent commercial media
entertainment.1 Consequently, the regulation of political speech—for
example, campaign finance regulations—seems to have more legitimacy
than the regulation of indecent media entertainment.2 But of course,such a scenario contrasts sharply with traditional free speech notions.3
In addition to prominent constitutional theories relating to theimportance of political speech, the Supreme Court on countless occasions
has stated that political speech, or speech relating to the conduct of selfgovernment, is the kind of speech with which the First Amendment is†This speech is adapted for publication and was originally presented at a panel
discussion as part of the Regent University Law Review and The Federalist Society for
Law & Public Policy Studies Media and Law Symposium at Regent University School ofLaw, October 9–10, 2009.
*
Professor, University of South Dakota School of Law, and Director, Hagemann
Center for Legal & Public Policy Research.
1
Patrick M. Garry, The First Amendment and Non-Political Speech: Exploring aConstitutional Model That Focuses on the Existence of Alternative Channels ofCommunication, 72 MO. L. REV. 477, 491–502 (2007) [hereinafter Garry, Exploring aConstitutional Model].
2
Id.
3
See id.

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most concerned and should most protect.4 Under current First
Amendment jurisprudence, however, not only do some constitutional
doctrines fail to favor political speech, but at times political speech
actually receives more disadvantageous treatment than does indecent
commercial media entertainment.5 This Essay examines some ways inwhich this has occurred, along with the reasons for suchdisadvantageous treatment. Such an examination will involve the legacy
of First Amendment doctrines born nearly a century ago and under amuch different media environment than what exists today. Using themarketplace metaphor that was first articulated by Justice Holmes nine
decades ago in his dissent in Abrams v. United States,6 this Essay argues
that the Court has articulated First Amendment doctrines that end up
greatly benefiting nonpolitical media entertainment—sometimes at theexpense of political speech.
Failing to adopt a First Amendment model specifically singling out
and elevating political speech threatens the autonomy and freedom ofsuch speech.7 First, supposedly content-neutral regulations can have adisproportionate effect on uniquely political speech.8 Second, the vast
increase in sexually explicit and graphically violent speech can have adesensitizing effect on political speech.9 When the public witnesses
increasing levels of outrageous or offensive speech in commercial media
entertainment, it often concludes that all speech receives sufficient
protection, and sometimes the public will even believe that all speech,
including political speech, requires more restraints.10 Current First
Amendment doctrines can give the illusion, by protecting the vilest andmost vulgar of speech, that speech in general is overly protected, which
in turn results in a backlash that can spill over to political speech.11
Thus, perhaps all the cultural focus on the need to protect violent andindecent media entertainment speech has somewhat blinded the public,
and even the courts, to the status of political speech.12 In fact, Steven

4
Connick v. Myers, 461 U.S. 138, 160–62 (1983) (Brennan, J., dissenting) (quoting
Saxbe v. Wash. Post Co., 417 U.S. 843, 862 (1974) (Powell, J., dissenting); Mills v.
Alabama, 384 U.S. 214, 218–19 (1966); Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964);
N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964); Stromberg v. California, 283 U.S. 359,
369 (1931)).
5
Garry, Exploring a Constitutional Model, supra note 1.
6
250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
7
Garry, Exploring a Constitutional Model, supra note 1, at 524.
8
Id. at 485–87.
9
Id. at 489–90.
10 Id. at 490.
11 Id.
12 See id.

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Heyman suggests that the repeated influx of media violence andindecency has made Americans less prone to accept vigorous free speechprotections.13
In examining the evolution of First Amendment doctrines, thisEssay also explores the meaning of free speech and censorship in today‘s
media society. Does censorship mean any burden applied on one type ofspeech in any one media venue, even if that speech is in plentiful supply
in various other media venues? Furthermore, is there a difference
between censorship, which seeks to eliminate a certain kind of speechfrom the social discourse, and legislative measures, which seek tofacilitate freedom of choice for those who wish to avoid the offensive,
nonpolitical speech that has become almost inescapable in today‘s media
world?
I. HOW CURRENT FIRST AMENDMENT DOCTRINES DISADVANTAGE
POLITICAL SPEECH
A. Political Speech as the Primary Concern of the First Amendment
There are several different purposes and values that justify theprotection of free speech: the truth value, the self-fulfillment value, thesafety-valve value, and the democratic self-governance value.14 The
latter value can often be found in the writings of Alexander Meiklejohn.15
While Meiklejohn did seem to promote an absolute protection of freespeech, the protection he promoted was limited to political speech.16
Meiklejohn characterized political speech as ―speech which bears,
directly or indirectly, upon issues with which voters have to deal.‖17
Although the Supreme Court has highlighted the importance of politicalspeech numerous times,18 it has never mandated that the speech at issue

13 Steven J. Heyman, Ideological Conflict and the First Amendment, 78 CHI.-KENT
L. REV. 531, 532–33 (2003). According to Professor Heyman, ―In the ongoing culture wars,
few battlegrounds are more contested than freedom of expression. In recent decades, theFirst Amendment has been at the heart of controversies over antiwar demonstrations,
pornography, hate speech, flag burning, abortion counseling, anti-abortion protests, andthe National Endowment for the Arts.‖ Id. (citations omitted).
14 GEOFFREY R. STONE, ET AL., CONSTITUTIONAL LAW 1017–24 (2d ed. 1991).
15 See ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELFGOVERNMENT 25–26 (Lawbook Exchange, Ltd. 2004) (1948).
16 For an analysis of Meiklejohn‘s views, see PATRICK M. GARRY, THE AMERICANVISION OF A FREE PRESS: AN HISTORICAL AND CONSTITUTIONAL REVISIONIST VIEW OF THE
PRESS AS A MARKETPLACE OF IDEAS 74–80 (1990) (citing MEIKLEJOHN, supra note 15, at
26–27, 88–89).
17 MEIKLEJOHN, supra note 15, at 94.
18 See, e.g., Buckley v. Valeo, 424 U.S. 1, 14 (1976) (―The First Amendment affords
the broadest protection to such political expression in order ‗to assure [the] unfetteredinterchange of ideas for the bringing about of political and social changes desired by the

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relate to self-government in order to qualify for the highest levels of
constitutional protection. In Garrison v. Louisiana, however, the Court
did maintain that ―speech concerning public affairs is more than selfexpression; it is the essence of self-expression; it is the essence of selfgovernment.‖19 As stated by the Court, there exists ―‗practically universal
agreement that a major purpose of [the First] Amendment [is] to protect
the free discussion of governmental affairs.‘‖20 The Court in FCC v.
League of Women Voters noted that ―editorial opinion on matters of
public importance . . . is entitled to the most exacting degree of First
Amendment protection,‖21 and that the speech the ―Framers of the Bill of
Rights were most anxious to protect‖ was speech ―that is ‗indispensable
to the discovery and spread of political truth.‘‖22 According to the Court,―[E]xpression on public issues has always rested on the highest rung of
the hierarchy of First Amendment values.‖23

people.‘‖ (quoting Roth v. United States, 354 U.S. 476, 484 (1957)) (alteration in original));Mills v. Alabama, 384 U.S. 214, 218 (1966) (―[A] major purpose of [the First] Amendment
was to protect the free discussion of governmental affairs.‖). Still, constitutional protection,
as laid out by the Court, does not rely upon a meaning of public discourse thatdifferentiates ―speech about ‗matters of public concern‘ from speech about ‗matters ofpurely private concern.‘‖ Robert C. Post, The Constitutional Concept of Public Discourse:
Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v. Falwell, 103 HARV.
L. REV. 601, 667 (1990) (quoting Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472
U.S. 749, 758–59 (1985) (plurality opinion)).
19 379 U.S. 64, 74–75 (1964).
20 Burson v. Freeman, 504 U.S. 191, 196 (1992) (quoting Mills, 384 U.S. at 218).
21 468 U.S. 364, 375–76 (1984).
22 Id. at 383 (quoting Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J.,
concurring)).
23 Id. at 381 (quoting NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982)(internal quotation marks omitted)). In general, indecent speech is also part of thatcategory of speech entitled to full protection under the First Amendment. The Code ofFederal Regulations identifies indecency as that which focuses on sexual and excretory
activities or organs. See 47 C.F.R. § 76.701 (2009) (allowing cable operators to prohibit
programming that ―describes or depicts sexual or excretory activities or organs in apatently offensive manner‖). Strict scrutiny applies to any governmental attempt to impose
a content-based restriction on indecent speech, requiring both a compelling governmental
interest and the absence of any less restrictive means of achieving that interest. See, e.g.,
Reno v. ACLU, 521 U.S. 844, 874 (1997). Under certain circumstances, however, indecency
descends in importance to a ―low-value‖ category. As an example, indecent speech in the
broadcast medium receives a lower level of constitutional protection. FCC v. Pacifica
Found., 438 U.S. 726, 746 (1978) (referring to the ―‗slight social value‘‖ of indecent speech(quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942))). On a similar note, theSupreme Court in Bethel School District No. 403 v. Fraser approved a school district‘s
sanctioning of student speech that contained sexual innuendo and profane language, and,in doing so, the Court clearly distinguished between that speech and a more serious
message of political protest, which would be protected. See 478 U.S. 675, 680 (1986) (citing
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 508 (1969)). In discussing thelower court‘s reliance on Tinker v. Des Moines Independent Community School District, the2010]

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B. Disadvantages Faced by Political Speech
While the Court has consistently articulated the value of politicalspeech, it has never issued a specific constitutional rule or model focusedon political speech.24 One primary reason for this is that the Court has
been unwilling to draw any definitional distinction between political andnonpolitical speech.25 As a result, however, the Court might actually betreating political speech less favorably than nonpolitical media
entertainment.26
Political protest is traditionally and uniquely connected to physicalspace; therefore, it is uniquely susceptible to time, place, and manner
regulations regarding that physical space.27 Since America‘s beginnings,
political protest has frequently focused on certain physical venues, suchas government buildings or offices, or the site of particular public eventsor actions.28 The following example illustrates this connection.
The War on Terror and heightened national security concerns havebrought with them increasingly stringent restrictions upon politicalprotest.29 Because these restrictions occur under the guise of contentneutral time, place, and manner regulations, they seem innocuous. But
these regulations can be content-neutral in appearance only and, in
reality, have a particularly repressive effect on political protest.30 At the2004 Democratic National Convention, for instance, law enforcers
confined protesters to a free speech cage surrounded by chain-link fences
and coiled razor wire.31 And during the 1999 World Trade Organization

Court in Bethel dismissed the lower court‘s opinion that the political speech at issue in
Tinker (wearing a black armband to protest the Vietnam War) equated with the sexuallysuggestive speech in Bethel. Id. As observed by Cass Sunstein, ―[I]t seems clear that all thecategories of low-value speech are nonpolitical.‖ Cass R. Sunstein, Free Speech Now, 59 U.
CHI. L. REV. 255, 302 (1992).
24 Garry, Exploring a Constitutional Model, supra note 1, at 524.
25 Id.
26 Id.
27 Id. at 485–86 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)).
28 See id. (citing Members of the City Council of L.A. v. Taxpayers for Vincent, 466
U.S. 789, 791–93, 815 (1984); Heffron v. Int‘l Soc‘y for Krishna Consciousness, 452 U.S.
640, 645, 647 (1981)).
29 Garry, Exploring a Constitutional Model, supra note 1, at 492.
30 Id.
31 Id. (citing Coal. to Protest the Democratic Nat‘l Convention v. City of Boston, 327
F. Supp. 2d 61, 66–67 (D. Mass. 2004), aff’d sub nom. Bl(A)ck Tea Soc‘y v. City of Boston,
378 F.3d 8 (1st Cir. 2004)). At the 2000 Democratic National Convention in Los Angeles
just four years earlier, there was a proposed ―free speech‖ zone that would have essentiallykept protesters almost 300 yards away from any convention delegate. Serv. Employee Int‘l
Union v. City of Los Angeles, 114 F. Supp. 2d 966, 972, 975 (C.D. Cal. 2000) (enjoining theuse of this zone and ordering the defendants to reconfigure the zone to comply with the352

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meetings in Seattle, officials banned all protests within a twenty-fivesquare block, designating the area a ―restricted zone.‖32
Such limitations on traditional political speech qualify as time,
place, and manner restrictions. These restrictions, on their face, focus
only on the place and manner of the speech; therefore, they are seen as
content-neutral.33 But herein lies the problem. Most traditional forms ofpolitical protest often occur in chosen physical locations, such as outside
government buildings and political conventions. Yet indecent andgraphically violent speech tends, increasingly, to derive from theelectronic or cyber world of the modern media, occurring irrespective ofany physical location. As a result, supposedly content-neutral time,manner, and place restrictions often end up affecting exclusively or
primarily the speech of political protest.
In Coalition to Protest the Democratic National Convention v. City of
Boston, the court upheld Boston‘s use of a designated zone ofdemonstration to contain protesters at the 2004 Democratic National
Convention while simultaneously admitting that this fenced-in zone
resembled ―an internment camp.‖34 The court found that thedemonstration zone resulted from content-neutral regulations that
simply governed the location of the protesters.35 On appeal, the First
Circuit affirmed this decision on the argument that the protesters, even
if confined to the demonstration zone, could still resort to mass media
coverage as an alternative to the physical act of protesting at the site of
the convention.36 The problem with using mass media, however, was thatit provided no guarantees as to how the media would portray or edit
their message. Another problem with using mass media was that itprovided no guarantee that the convention delegates—their intended
audience—would even see the protesters‘ message aired across
television. Furthermore, there was no guarantee that the opportunity toshout and chant for fifteen seconds to a television camera would beenough to draw in a significant crowd of protesters. In reality, denying

terms set forth by the court, not because it was designed to restrict protest, but because its
size was insufficiently tailored to the government‘s interest and it ―burden[ed] more speechthan [was] necessary‖).
32 See Menotti v. City of Seattle, 409 F.3d 1113, 1124–26, 1167 (9th Cir. 2005).
33 See, e.g., Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984)(holding that place restraints on political protests ―are valid provided that they are
justified without reference to the content of the regulated speech, that they are narrowly
tailored to serve a significant governmental interest, and that they leave open ample
alternative channels for communication of the information‖).
34 327 F. Supp. 2d at 74–76.
35 Id.
36 Bl(A)ck Tea Soc’y, 378 F.3d at 14.

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the most relevant physical venue to political protesters limits the kind of
message they can convey, whereas if one television channel denies accessdue to media violence and indecency, there are numerous similar
channels through which that speech can travel.
Time, place, and manner restrictions on speech focus on thephysical site of the speech.37 This approach to time, place, and manner
restrictions recognizes the relationship between the speech and theimmediate physical surroundings, and it came about during the nearlycentury and a half preceding adoption of the First Amendment, andduring the century following ratification of the First Amendment.38 At
that point in time, a primary location where political protest took place
was out in the public square, where the speaker could attract as large an
audience as possible and where the speaker could amplify his or her
message by coupling it with a relevant physical backdrop.39
Constitutional doctrines eventually developed so as to allow thegovernment to control potentially disruptive speech common to the
public square, which was the primary venue for such disruptions.40 But
it is mainly political protest that occurs in connection with specificplaces, such as at the site of political events. Electronic commercial
media entertainment, conversely, lacks a connection to a physical site;
consequently, it proceeds uninhibited by time, place, and manner
restrictions. Such speech has no real physical location and needs norelationship with a particular physical location in order to convey its
message.41
In another political speech case, Hill v. Colorado, the Court uphelda Colorado statute creating a ―floating buffer zone‖ of eight feet thatprevented anyone from approaching another person outside of anabortion clinic for the purpose of leafleting or engaging in oral protest or
counseling.42 The Court so ruled despite recognizing that First
Amendment protections extended to the speech of the abortion

37 For a comprehensive analysis of the Court‘s ―place‖ focus in its First Amendment
jurisprudence, see generally Timothy Zick, Speech and Spatial Tactics, 84 TEX. L. REV. 581(2006). Professor Zick asserts that, due to the connection between the place of speech andthe content of speech, not all place regulations achieve a content-neutral outcome. ―The
time, place, and manner doctrine applies only where the state is neutral with regard tocontent, the presumption being that place itself has nothing to do with the substance ofspeech.‖ Id. at 616. To Professor Zick, place is connected to and facilitates the expression ofcertain kinds of speech. Id. at 617.
38 Garry, Exploring a Constitutional Model, supra note 1, at 495.
39 Id.
40 Id.
41 Id.
42 530 U.S. 703, 723, 726 (2000).

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protesters, and that the public sidewalks covered by the statute were―‗quintessential‘ public forums for free speech.‖43 But the dissent in Hillargued that the Court had never before extended a governmental
interest in protecting people from unwanted communications to speechon public sidewalks.44 Additionally, the dissent maintained that the
Colorado statute imposed considerable burdens on the protesters‘ ―rightto speak.‖45 Yet the Court still allowed a supposedly content-neutral
time, place, and manner restriction to virtually suppress that speech,
regardless of its being clearly political speech.
The Court‘s decision in Hill, involving political speech in a
traditional public forum, can be contrasted with an earlier decision
involving sexually explicit speech on cable television. In Denver Area
Educational Telecommunications Consortium, Inc. v. FCC, the Court
addressed the constitutionality of regulations in the Cable Act of 1992,
requiring that cable operators place indecent programs ―on a separate
channel; to block that channel; to unblock the channel within [thirty]
days of a subscriber‘s written request for access; and to reblock thechannel within [thirty] days of a subscriber‘s request for reblocking.‖46 In
holding these regulations unconstitutional—despite recognizing thatthey served the compelling purpose of protecting minors—the Court
focused on the inconveniences to would-be viewers of suchprogramming.47 None of these burdens, however, presented
insurmountable obstacles. Viewers could still access the desired
programming simply by following the established procedures.
Both cases—Hill and Denver Area—involved segregate-and-block
schemes. In Denver Area, cable operators segregated indecent television
programming to certain channels, with those channels blocked to anyone

43

Id. at 715.
See id. at 741–55 (Scalia, J., dissenting).
45 Id. at 756. The dissent noted that an eight-foot zone of separation made itpractically impossible to have a normal conversation, especially when the goal was not toprotest but to engage in counseling and educating—activities that ―cannot be done at a
distance and at a high-decibel level.‖ Id. at 757. The use of bullhorns and loudspeakers,
which was recommended by the majority, would be of ―little help to the woman who hopes
to forge, in the last moments before another of her sex is to have an abortion, a bond ofconcern and intimacy that might enable her to persuade the woman to change her mind
and heart.‖ Id. As argued by the dissent, ―It does not take a veteran labor organizer torecognize . . . that leafletting will be rendered utterly ineffectual by a requirement that theleafletter obtain from each subject permission to approach . . . . That simply is not how it isdone, and the Court knows it.‖ Id. at 757–58.
46 518 U.S. 727, 753–54 (1996) (citing Cable Act of 1992 § 10(b), 47 U.S.C. § 532(j)(2006)).
47 Id. at 755–57.
44

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who did not voluntarily request access.48 In Hill, law enforcement
officers segregated abortion protesters off at a distance from clinics andblocked them from having access to all people going in and out of thoseclinics, except those who voluntarily chose to speak to the protesters.49
But even though both cases involved segregate-and-block schemes, theCourt upheld the political speech restrictions and not the indecent media
entertainment restrictions. Moreover, a simple request made to a cableprovider easily overcame the burden imposed in Denver Area, whereas
the burden imposed in, for instance, the Boston Democratic National
Convention case, was impossible to overcome.
The irony is that the constitutional protections for sexually explicit
and graphically violent media entertainment arose out of the politicalspeech cases. When the Supreme Court developed its current free speech
doctrines, largely during the period from the 1930s to the 1970s, most of
the controversies involved dissident political speech50—for example,
socialists and communists trying to convey their political ideas to alargely unreceptive public. Such is not the case, however, with most of
the current speech controversies. Most controversial speech now involves
offensive entertainment programming packaged and sold by large media
corporations. Therefore, perhaps we should reconsider the assumptionthat a primary reason we protect low-value indecent media
entertainment is to ensure the continued protection of high-value
political speech.
II. DRAWBACKS OF THE MARKETPLACE MODEL IN FIRST AMENDMENTJURISPRUDENCE
A. The Failure of Courts to Consider Actual Burdens on Speech
Current First Amendment doctrines stem from the marketplace ofideas metaphor, first expressed by Justice Holmes in his dissent in
Abrams v. United States.51 Objecting to the Court‘s decision to uphold
Sedition Act convictions of individuals charged with distributing
pamphlets attacking the government‘s expeditionary force to Russia,
Holmes articulated his now-famous metaphor: ―[T]he best test of truth isthe power of the thought to get itself accepted in the competition of themarket.‖52 Holmes‘s marketplace metaphor exerted a profound influence48

See supra note 46 and accompanying text.
See supra notes 42–45 and accompanying text.
50 See Garry, Exploring a Constitutional Model, supra note 1, at 487 (citing
Sunstein, supra note 23, at 258).
51 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
52 Id.
49

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on First Amendment doctrines throughout the twentieth century.53
Essentially, the marketplace metaphor seeks to increase the quantity ofspeech without regard to the content or quality of that speech—it strives
to protect as much speech as can be crammed into the media
marketplace.54
But the role or application of the marketplace model has changed
over time, especially as the type of free speech cases coming to the courts
have changed. This change occurred around the 1970s. Althoughpolitical dissidents brought the major First Amendment cases during the
mid-twentieth century, many of the later cases involved complaints bycommercial entertainment distributors.55 Thus, the desire toindiscriminately increase the supply of political speech in the early to
mid-part of the twentieth century eventually worked to indiscriminately
increase the amount of commercial entertainment in the latter part of
the twentieth century. Commercial media entertainment speech wasable to take advantage of all the constitutional protections that had
developed to protect political dissent.56 But ―because most of the recent
cases interpreting the Free Speech Clause have involved media
entertainment, constitutional doctrines have been influenced by thedemands and conditions of that speech, not by the needs [or] demands ofmore traditional political speech.‖57
The marketplace model makes two assumptions that may very wellbe erroneous in today‘s society. First, it assumes that there is a shortageof, or social blockage to, speech. Second, it presumes
that a public debate is occurring, that the speech in the public domain
is even capable of debate, that this speech is more than mere images
meant to manipulate emotions rather than contribute to some rational
discussion, and that music videos are as communicative in a First

53 See, e.g., Reno v. ACLU, 521 U.S. 844, 885 (1997) (rejecting the argument that
the Internet‘s unregulated availability of indecent or offensive material drives ―countless
citizens away from the medium‖ because the ―phenomenal‖ growth of the Internet reflects
a ―dramatic expansion of this new marketplace of ideas‖); Denver Area Educ. Telecomm.
Consortium, Inc. v. FCC, 518 U.S. 727, 769 (1996) (Stevens, J., concurring) (―Congressshould not be put to an all or nothing-at-all choice in deciding whether to open certain
cable channels to programmers who would otherwise lack the resources to participate in
the marketplace of ideas.‖); Bigelow v. Virginia, 421 U.S. 809, 826 (1975) (noting that theFirst Amendment extends protection to advertising because ―[t]he relationship of speech tothe marketplace of products or of services does not make it valueless in the marketplace ofideas‖).
54 See supra note 53.
55 Sunstein, supra note 23, at 258.
56 See Garry, Exploring a Constitutional Model, supra note 1, at 487–88 & nn.50–
51.
57 Id. at 488.

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Amendment sense as newspaper editorials.58

The marketplace solution to harmful speech is simply to increase theamount of speech, as if more speech will somehow remedy or nullify the―bad‖ speech. Still, it seems highly unlikely that there is logical speechcapable of somehow rectifying the irrational impressions given bydifferent types of entertainment.
The marketplace model has worked somewhat to overprotect
indecent media entertainment relative to political speech. One of theways it has done so is the content-neutrality rule. This rule focuses
almost entirely on indiscriminately increasing the supply of speech. But
in doing so, it does not sufficiently look at the actual burdens being
imposed, or not imposed, on particular speech.
The Supreme Court‘s current free speech jurisprudence depends
primarily on whether a particular regulation is content-neutral.59 The
Court does not really take into account the actual degree of the burden;
furthermore, the Court fails to make a distinction of whether the law
imposes a mere burden or a complete ban on the speech.60 In reality,
however, there is a substantial difference between a mere burden placedon speech being expressed in just one of many media channels and acomplete ban that effectively silences that speech in all communications
venues. The courts are indifferent as to whether a burden or ban is
occurring in just one of many media venues through which the speech isavailable. But the First Amendment does not mandate that speakers
incur absolutely no obstacles or burdens in exposing listeners to theirspeech.
By treating all content-based regulations the same, courts makevirtually no effort to determine if a particular law imposes the kind of
burden that threatens to drive an idea out of the marketplace of ideas. In
other situations, however, a court may determine a law to be contentneutral and will sustain the law notwithstanding the apparent burdens
on speech caused by that law. Unlike the approach taken by theSupreme Court in some other situations, such as its abortion-rights
jurisprudence, no thought goes to whether the regulation imposes an

58 Patrick M. Garry, The Right to Reject: The First Amendment in a MediaDrenched Society, 42 SAN DIEGO L. REV. 129, 136 (2005) [hereinafter Garry, Right toReject].
59 See, e.g., United States v. Playboy Entm‘t Group, Inc., 529 U.S. 803, 813 (2000)(citing Sable Commc‘ns of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989)); see also Patrick M.
Garry, A New First Amendment Model for Evaluating Content-Based Regulation of Internet
Pornography, 2007 BYU L. REV. 1595, 1603.
60 See, e.g., Playboy Entm’t Group, Inc., 529 U.S. at 812 (―The distinction between
laws burdening and laws banning speech is but a matter of degree. The Government‘scontent-based burdens must satisfy the same rigorous scrutiny as its content-based bans.‖).

358

REGENT UNIVERSITY LAW REVIEW[Vol. 22:347―undue burden‖ on the particular speech.61 This disregard of the degreeof actual burden has resulted in courts overturning every state
regulation that purports to shield young children from exposure to a
powerful new media product—graphically violent video games.62 Courts
have overturned laws that require parental consent before minors canobtain graphically violent video games based on the rationale that thoselaws make content distinctions, even though the only burden imposed ison the ability of commercial vendors to sell those games to children
without their parents‘ knowledge or consent.63
The Court‘s decision in United States v. Playboy Entertainment
Group, Inc.64 illustrates the gross imbalance of burdens currently being
allocated between commercial vendors of indecent programming andunwilling recipients of such programming. Playboy Entertainment
involved a challenge to a provision in the Telecommunications Act of1996 that required cable operators with channels ―primarily dedicated tosexually-oriented programming‖ to either completely block the channels
or limit the broadcast of those programs to the hours between 10 p.m.
and 6 a.m., when children are not likely to be among the viewing
audience.65 Long before this provision went into effect, cable operators
used signal scrambling to ensure that only paying customers had accessto certain programming; but, because this scrambling was subject tosignal bleed, the time-channeling regulation endeavored to shieldchildren from hearing or seeing images resulting from such signal
bleed.66 Still, the Court refused to uphold the provision because it posed

61 See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 876 (1992). In Stenberg
v. Carhart, the Court held that a Nebraska law outlawing partial birth abortion was
unconstitutional because it violated the ―undue burden‖ test. 530 U.S. 914, 945–46 (2000).
Freedom of association cases, involving conduct that facilitates expression, also use thistype of balancing approach. Cf. Barry P. McDonald, The First Amendment and the Free
Flow of Information: Towards a Realistic Right to Gather Information in the Information
Age, 65 OHIO ST. L.J. 249, 260 (2004). Prior to determining how strict or deferential thestandard of review to apply to the law, the courts in these cases take into account theseverity of the burdens imposed on the freedom of expressive association. See, e.g.,
Clingman v. Beaver, 544 U.S. 581, 586–87 (2005); Timmons v. Twin Cities Area New
Party, 520 U.S. 351, 358 (1997).
62 See generally Patrick M. Garry, Defining Speech in an Entertainment Age: The
Case of First Amendment Protection for Video Games, 57 SMU L. REV. 139 (2004)[hereinafter Garry, Defining Speech] (explaining how current First Amendment application
prevents regulation on the distribution of violent video games).
63 See Interactive Digital Software Ass‘n v. St. Louis County, 329 F.3d 954, 956 (8thCir. 2003); Video Software Dealers Ass‘n v. Schwarzenegger, 401 F. Supp. 2d 1034, 1037
(N.D. Cal. 2005).
64 529 U.S. 803 (2000).
65 Id. at 806 (quoting 47 U.S.C. § 561(a) (2006)).
66 Id.

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too great a restriction on speech, even though the Court recognized thestate interest in shielding young viewers from such programming.67
In dissent, Justice Breyer focused particularly on the issue of
relative burdens.68 Justice Breyer noted that the law in question did notprohibit adult programming; instead, it merely placed a burden on the
speech.69 According to Justice Breyer, ―Adults may continue to watch
adult channels, though less conveniently, by watching at night,
recording programs with a VCR, or by subscribing to digital cable with
better blocking systems.‖70 Additionally, he observed that the law only
extends to channels that ―broadcast ‗virtually 100% sexually explicit‘
material.‖71 Justice Breyer also pointed out that signal bleed exposed
approximately twenty-nine million children to sexually explicit
programming.72 Taking into account the fact that tens of millions ofchildren have no parents at home after school and some children may
spend afternoons and evenings watching television outside of the homewith friends, Justice Breyer asserted that the time-channeling law
offered ―independent protection for a large number of families.‖73 Justice
Breyer also cited evidence reflecting all the difficulty people encountered
while trying to get their cable operator to block sexually explicit
channels—difficulty which comes as no surprise to those who havepreviously tried to get their cable company to fix something.74 According
to Justice Breyer, the Framers did not intend the First Amendment toleave millions of parents helpless in the face of media technologies thatbring unwanted speech into their children‘s lives.75
Under the content-neutral approach of the marketplace model, notonly does the Court fail to closely scrutinize the actual degree of burden
imposed upon media entertainment speech, but it also does not reallyconsider the burdens on those who wish to avoid such speech. Even
though speech and communication is a two-way process, the Court looks
only at the rights of those commercial entities seeking to deliver indecent
entertainment programming, ignoring the rights of those individuals
who wish to prevent exposing their children from such programming.

67

See id. at 825.
Id. at 838 (Breyer, J., dissenting).
69 Id.
70 Id. at 845.
71 Id. at 839 (quoting Playboy Entm‘t Group, Inc. v. United States, 30 F. Supp. 2d702, 707 (D. Del. 1998)).
72 Id.
73 Id. at 842.
74 Id. at 843–44.
75 See id. at 846.
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III. THE MARKETPLACE MODEL DOES NOT CONSIDER THE BURDENS ON
THOSE WISHING TO AVOID INDECENT COMMERCIAL ENTERTAINMENTPROGRAMMINGIn Denver Area, the Court was concerned only with inconveniences
to would-be viewers of indecent programming—for example, a viewer
who might want to choose a channel without any advance planning, or
the one who worries about any embarrassment he might feel if he makes
a written request to subscribe to the channel.76 The Court ruled in
Playboy Entertainment that audiences should generally expect to assume
the burden of averting their eyes whenever unwanted or offensive media
programming confronts them.77 The Court previously articulated thisexpectation that unwilling viewers must avert their eyes in Cohen v.
California, where the Court refused to permit the censorship of an
expletive-laced political message printed on the back of a jacket worn in
the Los Angeles courthouse, even though passersby may be involuntarily
exposed to this message.78 In Cohen, the Court placed the burden of
avoiding the speech entirely on the viewer.79 The Court imposed thissame burden in Erznoznik v. City of Jacksonville when it struck down an
ordinance prohibiting drive-in movie theatres from exhibiting nudity.80
But a careful reading of Justice Breyer‘s Playboy Entertainment dissent
makes clear that one‘s ability to avert one‘s eyes differs significantly
between the various media. It is one thing to turn one‘s eyes away froman expletive printed on someone‘s jacket in a public place or to avoid
driving by an outdoor movie theatre, and it is quite another thing toprevent one‘s children from viewing sexually explicit material on
television—a medium that is everywhere and constantly accessible.81
Thus, with respect to such modern media venues as cable television andthe Internet, the ―avert one‘s eyes‖ expectation stated in Cohen becomesa fallacy.
Because current First Amendment analysis is often virtually blindto the actual burdens borne by parents wishing to prevent their children
from being exposed to indecent media entertainment, most of the time
the courts require that those parents bear the full burden of ―averting76

Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 753–54(1996).
77 Playboy Entm’t Group, Inc., 529 U.S. at 813 (citing Cohen v. California, 403 U.S.
15, 21 (1971)).
78 Cohen, 403 U.S. at 16, 26.
79 Id. at 21.
80 422 U.S. 205, 206, 210 (1975).
81 See Playboy Entm’t Group, Inc., 529 U.S. at 842 (Breyer, J., dissenting).

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their eyes or ears,‖ regardless of the degree or cost of that burden.82 In
United States v. American Library Ass’n, however, the Supreme Court
tried to more effectively balance the placement of burdens.83 The Court
upheld a law requiring public libraries to install filtering software on
their Internet computers, stating that the law did not require a total ban
on a patron‘s Internet access to certain types of material but did require
any adult wishing to view such material to ask a librarian to unblock thedesired site.84 The slight burden on adults who could still access thematerial with just a request to the librarian gave way to the goal ofprotecting children from pornography. In considering the relative
burdens involved, some viewed this decision as bucking the trend
followed in Playboy Entertainment, where just about any burden on an
adult‘s access to indecent speech, no matter what the risk to children,
was found to be unconstitutional.85
The finding that children could easily access sexually explicit
material on the Internet was crucial to the Court‘s holding in American
Library Ass’n.86 But if it is as easy as the Court in American Library
Ass’n says it is to access indecent speech on the Internet, and if there is
no way for parents to adequately site or content-block, and if theInternet is indeed an integral part of contemporary life, then is it
feasible to expect people to avert their eyes from all the sexually explicit

82

Cf. Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 61 (1983) (holding that thefederal government could not ban the unsolicited mailing of contraceptive ads); Erznoznik,
422 U.S. at 210–11 (holding that the burden falls upon the unwilling viewer to avoid
offensive speech ―‗simply by averting [his] eyes‘‖ (quoting Cohen, 403 U.S. at 21) (alterationin original)); Lamont v. Postmaster Gen., 381 U.S. 301, 305 (1965) (holding that the Post
Office could not screen out communist mail from foreign sources and require potential
recipients to affirmatively request its delivery).
83 539 U.S. 194, 208 (2003).
84 Id. at 209.
85 See supra notes 64–75 and accompanying text.
86 Am. Library Ass’n, 539 U.S. at 200 (citing Am. Library Ass‘n v. United States,
201 F. Supp. 2d 401, 406, 419 (E.D. Pa. 2002)). National surveys illustrated that a quarterof all school children had unintentionally accessed pornography while at a public library.
Elizabeth M. Shea, The Children’s Internet Protection Act of 1999: Is Internet Filtering
Software the Answer?, 24 SETON HALL LEGIS. J. 167, 185 & n.92 (1999). Studies show thatadolescents between the ages of twelve and seventeen are one of the largest consumers ofadult-oriented material on the Internet. Id. at 184 (citing Legislative Proposals to Protect
Children from Inappropriate Materials on the Internet: Hearing on H.R. 3783, H.R. 774,
H.R. 1180, H.R. 1964, H.R. 3177, and H.R. 3442 Before the Subcomm. on Telecomm.,
Trade, & Consumer Prot. of the H. Comm. on Commerce, 105th Cong. 22 (1998) (statementof Rep. Ernest J. Istook, Jr.) [hereinafter Istook Statement]). Most pornography sites do not
require a credit card to access their extensive free previews, thus permitting children to seegraphic sexual and violent images without going through any age verification process. Id.
at 178–79 (citing Istook Statement, supra, at 22).

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speech that pops up on the Internet?87
The courts fail to scrutinize fully the ease or difficulty for an adultto overcome whatever burden is placed on his or her access to sexually
explicit speech, compared with the ease or difficulty for parents tosafeguard their children from such speech; in other words, the courts put
minimal effort into comparing the relative burdens of those who wish toaccess the speech with those who wish to avoid the speech.88 An opt-in
requirement on specific types of ―low value‖ nonpolitical speech,
however, would venture to equalize those burdens. Rather thandecreasing the amount of speech in the system, it would simply create an
additional step before someone could access the speech. Justice Breyer
made this point in his Playboy Entertainment dissent: the timechanneling law provided invaluable assistance to those who wished to
avoid the sexually explicit programming, while placing a relatively
insignificant burden on those who wished to obtain the programming.89
When using the content-neutral approach, the Court does noteffectively contemplate the freedom to avoid being subjected to offensive
and unwanted commercial entertainment—possibly one of the mostvulnerable and fragile freedoms in today‘s media environment.90 Not

87 The Court in United States v. American Library Ass’n acknowledged that ―there
is also an enormous amount of pornography on the Internet, much of which is easily
obtained,‖ and that the ―accessibility of this material has created serious problems forlibraries, which have found that patrons of all ages, including minors, regularly search foronline pornography.‖ 539 U.S. at 200 (citing Am. Library Ass’n, 201 F. Supp. 2d at 406,
419). As observed by Professor Nachbar, very few parents have the time to supervise theirchildren‘s access to the Internet, and ―unless the parent were, for example, to open each[web]page with the child looking away and only allow the child to view the page after aparental preview, there is no way to keep the child from taking in the content while theparent is evaluating its appropriateness.‖ Thomas B. Nachbar, Paradox and Structure:
Relying on Government Regulation to Preserve the Internet’s Unregulated Character, 85
MINN. L. REV. 215, 220–21 (2000).
88 The question raised here is why should First Amendment doctrine favor adults
over children, especially when adults can access speech, even with slight burdens, moreeasily than parents can keep such speech away from their young children, and especiallywhen the consequences are so much different: potential psychological harm to children
versus a slight delay in obtaining the speech for adults? For a discussion of the harms tochildren, see generally Garry, Exploring a Constitutional Model, supra note 1.
89 See United States v. Playboy Entm‘t Group, Inc., 529 U.S. 803, 841–42 (2000)(Breyer, J., dissenting).
90 See PATRICK M. GARRY, REDISCOVERING A LOST FREEDOM: THE FIRSTAMENDMENT RIGHT TO CENSOR UNWANTED SPEECH 38–39, 42–48 (2006) [hereinafter
GARRY, REDISCOVERING A LOST FREEDOM]. The purpose of the new challenge under theFirst Amendment may be to safeguard the right of recipient control, just as the purpose of
the challenge under the marketplace model was to safeguard the right of speaker control.
See id. at 22–27. Basically, the purpose of the modern First Amendment challenge may be
to adjust the one-sided approach of the marketplace model.

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only has the Court failed to realistically analyze how feasible it is forparents to ―avert‖ their children‘s eyes from electronic commercial media
entertainment, but the Court has, in some cases, applied the ―avert one‘seyes‖ standard more leniently in political speech matters than in
indecent media entertainment matters. And if the Court applies thatstandard more leniently in political speech matters, it allows for more
speech regulation, thus serving the interests of the unwilling audience.
In Hill v. Colorado, for instance, the Court favored the interests of theunwilling listener—the person going in and out of the abortion clinic—byrestricting the speech of the protesters. In finding that it was difficult forthe patrons or employees of the clinic to ―avert their eyes‖ from theprotesters, the Court significantly limited the protest speech.91
Conversely, in Denver Area, a case involving indecent television
entertainment programming, the Court gave no consideration to theunwilling audience—namely, those parents who did not wish to expose
their children to such programming.92
IV. THE COURTS‘ ISOLATED-MEDIA VIEW
The courts must make certain that regulations of nonpoliticalspeech do not amount to a total ban on that speech. But as long as thatspeech remains accessible through other avenues or in other formats,courts can avoid such a ban.
Current free speech doctrines ignore the realities of the modern
media world by refusing to recognize the plethora of media channels thatexist for any one type of speech.93 In this respect, First Amendment
jurisprudence is stuck in the early twentieth century when, due to thefew media venues available, a burden or ban in one venue essentiallymeant a complete censorship of the subject speech. When First
Amendment doctrines were born, there was effectively only one mass
media outlet—the print media.94 But now, in the twenty-first century,
there are many different media venues. Thus, in a multiple media world,
the question arises as to whether a speech burden in one venue amounts
to an unconstitutional censorship, even if the particular speech remains
plentiful in other venues—in other words, the speech is still available

91

Hill v. Colorado, 530 U.S. 703, 723, 726 (2000).
See Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 753–54(1996) (describing only the statute‘s restrictive effects upon the willing audience).
93 Strict scrutiny not only fails to consider whether a content-based regulation
imposes only a slight or narrowly confined burden on speech, but it also does not consider
whether this burden only exists in just one of many communication channels.
94 Aside from the fact that there were very few different media venues, there wasalso, in the early twentieth century, very little sexually explicit or graphically violent
media speech due to social customs as well as technological restraints.
92

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and remains not banned.
Violent and sexually explicit speech is in great supply in today‘ssociety. Thus, courts should view restrictions on such speech in light of
the total supply of that speech in the entire media, rather than throughthe effects of those restrictions on just one media avenue. Because there
is an abundance of so many different communications mediums, courts
should view speech regulations in terms of the total media spectrum.
Thus, a regulation of speech in one media venue may be permissible ifthat speech remains available through other media venues. Courts, inanalyzing measures to help those wishing to avoid their children‘s
exposure to harmful speech—measures aimed at facilitating freedom of
choice on behalf of the avoider—should consider the media as a whole,
instead of just considering individual media venues in isolation.95
Before the modern growth of new ―communications technologies, thecensorship of a particular medium (or of a particular way of conveying
an idea or information) amounted more or less to a complete censorshipof that idea or information.‖96 But now, that is not the case. For thatreason, courts should look at the media in its entirety to determine

95 The problem with courts treating each single media venue as if it constituted the
media as a whole is not only that ideas are expressed in all the different media venues, butthat each different media venue may have some unique influences on children. For
instance, the idea of violence is expressed in all the different media venues; however, theway that violence is depicted in graphically violent video games, for instance, has beenshown to have particular and long-ranging negative effects on children‘s behavior. Garry,
Defining Speech, supra note 62, at 139. Therefore, a restriction that applies only tographically violent video games—for example, a restriction on very young children buying
certain games without parental knowledge—may serve to accomplish a valuable childprotection interest, while at the same time not causing a ban on the message or idea of
violence. The distinctions between various media venues have been recognized by Professor
Frederick Schauer:
When we are compelled to treat mass distribution of detailed instructions forcausing harm in the same way that we treat an individual speaking to a live
audience, we face a different kind of problem: too much protection rather than
too little. And when First Amendment doctrine insists that the Internet, cable
television, telephone, newspapers, magazines, and books are for many purposes
indistinguishable, serious questions arise as to whether courts have overlooked
important historical, structural, economic, and cultural differences among thevarious channels and institutions of communication.
Frederick Schauer, Towards an Institutional First Amendment, 89 MINN. L. REV. 1256,
1271 (2005) (citing Rice v. Paladin Enters., 128 F.3d 233, 239 (4th Cir. 1997)). According toProfessor Schauer, the Court‘s First Amendment jurisprudence rests on the basis ofcontent of the speech or communication; the Court has paid relatively little regard to theinstitutional environment or media venue in which the speech occurs. Id. at 1256. Thus,
the Supreme Court has been reluctant to draw any lines around communicative
institutions or media venues; it has instead focused almost exclusively on looking at what
type of speech is at issue. Id. at 1263.
96 See GARRY, REDISCOVERING A LOST FREEDOM, supra note 90, at 96–97.

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whether restrictions on a particular kind of output or imagery of one
communications medium do in fact preclude such speech from altogether
entering the social marketplace of ideas through anothercommunications medium.97 Because our current society is swelling withmedia content, courts should examine whether a specific regulation of
speech in one venue is equivalent to a total censorship of that idea orpiece of information in society at large.98 It appears absurd to only
examine one media venue in hopes of discovering whether an
unconstitutional censorship has occurred while ignoring the abundanceof speech that is still in the media system as a whole.
The accessibility of alternative venues for regulated speech played asignificant part in Action for Children’s Television v. FCC, where the
D.C. Circuit Court of Appeals upheld the ―safe harbor‖ provisions of the
Public Telecommunications Act of 1992, which restricted indecent
programming to the hours between midnight and 6 a.m.99 The courtcame to the conclusion that the time-channeling rule for indecent
transmissions did not ―unnecessarily interfere with the ability of adults
to watch or listen to such materials both because [adults] are active after
midnight and . . . have so many alternative ways of satisfying theirtastes at other times.‖100 Likewise, the Second and Ninth Circuits upheld
restrictions on access to dial-a-porn services—such as requiring
telephone companies to block all access to dial-a-porn services unlesstelephone subscribers submit written requests to unblock them—findingthat such restrictions merely shifted the burdens of accessing theindecent speech, rather than amounting to a total ban of such speech.101
A constitutional model that recognizes the reality of the modern

97 See, e.g., Cohen v. California, 403 U.S. 15, 19 (1971) (stating that the First
Amendment has ―never been thought to give absolute protection to every individual to
speak whenever or wherever he pleases, or to use any form of address in any circumstancesthat he chooses‖).
98 Courts are able to differentiate between laws that suppress actual ideas and lawsthat suppress only individual expressions of those ideas. Id. For example, do we really need
the expression of violence in a video game—and in a way that has a particularly harmful
effect on children—when we have lots of books and movies that express the same thing?
99 58 F.3d 654, 667 (D.C. Cir. 1995) (citing Public Telecommunications Act of 1992,
Pub. L. No. 102-356, § 16(a), 106 Stat. 949, 954 (codified at 47 U.S.C. § 303 (2006))). The
court in Action for Children’s Television recognized the harm of pornography to children,and yet First Amendment doctrines allow for regulation of pornography only on the
broadcast medium, which in today‘s media world is a diminishing medium.
100 Id.
101 In Dial Information Services Corp. v. Thornburgh, 938 F.2d 1535, 1537 (2d Cir.
1991), and Information Providers’ Coalition for Defense of the First Amendment v. FCC, 928
F.2d 866, 879 (9th Cir. 1991), the Second and Ninth Circuits, respectively, ruled that the
restrictions in the so-called ―Helms Amendment,‖ 47 U.S.C. § 223(b)–(c) (2006), did not
infringe on the First Amendment.

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mass media would look at the media marketplace in its entirety todetermine whether a requirement in one venue equates to a total ban of
the speech. The key is to not look at each medium in a vacuum or as if
each single medium has to carry a complete supply of speech on its own;rather, the issue is to look at all mediums together when considering theimpact on speech.102
By upholding statutes that restrict speech in one venue whileleaving open other venues for that speech, courts have implicitly
approved this approach—and explicitly for so-called content-neutral
regulations.103 Because advertising in other media venues was stillavailable, the court in Capital Broadcasting Co. v. Mitchell held that astatute restricting advertising in certain media venues did not infringe
upon the First Amendment.104 In Hill v. Colorado, the Court upheld a―buffer zone‖ regulation that restricted the speech rights of abortion
protesters, reasoning that the statute merely restricted face-to-facedialogue while still leaving open other channels of communication.105 The
Court also observed in Schenck v. Pro-Choice Network of Western New
York that speakers remained ―free to espouse their message‖ in various
ways, even though they were required to keep a distance from theirintended audience.106 Through cases like Hill and Schenck, the Court
seems to suggest that it is essential to preserve the potential ofcommunicative interchange between speakers and willing listeners.
What is important is that willing listeners still be able to seek out andobtain the speech through an alternative channel.107

102 This is a derivative of the acknowledgment that the ―unique characteristics‖ and―distinct attributes‖ of ―each mode of expression‖ should direct First Amendment analysis,
Ashcroft v. ACLU, 535 U.S. 564, 594–95 (2002) (Kennedy, J., concurring) (citing Se.
Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975)), and that ―differences in thecharacteristics of new media justify differences in the First Amendment standards applied
to them.‖ Red Lion Broad. Co. v. FCC, 395 U.S. 367, 386 (1969) (citing Joseph Burstyn, Inc.
v. Wilson, 343 U.S. 495, 503 (1952)).
103 Frisby v. Schultz, 487 U.S. 474, 484 (1988); see also Moser v. FCC, 46 F.3d 970,
975 (9th Cir. 1995) (noting that a ban on auto-dialing machines still left abundant
alternatives open to advertisers).
104 333 F. Supp. 582, 584 (D.D.C. 1971) (citing Public Health Cigarette Smoking Act
of 1969 § 6, Pub. L. No. 91-222, 84 Stat. 87, 89 (1970) (codified at 15 U.S.C. § 1335 (2006)).
105 530 U.S. 703, 727 & n.33 (2000) (citing id. at 780 (Kennedy, J., dissenting)).
106 519 U.S. 357, 385 (1997).
107 In Urofsky v. Gilmore, where a group of university professors challenged theconstitutionality of a statute restricting state employees from accessing sexually explicit
material on computers owned by the state, the court noted that the statute did not prohibit
all access to such materials because an employee could always get permission from his or
her agency head to access the material. 167 F.3d 191, 194 (4th Cir. 1999).

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CONCLUSION: CHOICE FACILITATION VS. CENSORSHIP
Freedom of speech is, in reality, part of a larger freedom to control
certain basic aspects relating to one‘s role within the communicative
process. Indeed, speech is a component of something beyond just theindividual; it is a component of the communicative process, and as suchis both a social act as well as an individual act.108 Seen in this light, afree individual should have not only the right to speak what he or she
wishes to speak, but also the right to avoid or reject whatever offensiveor harmful speech he or she wishes to reject.
Similar to this freedom, parents also have a right to control theirchildren‘s upbringing. Part of the parental child-raising function relates
to the kind of speech or images to which the parent wishes to expose thechild. Constructing speech freedoms in such a way as to leave parents
with little effective control over what nonpolitical media entertainment
programming confronts their children severely erodes the right to control
their children‘s upbringing. In that case, parents must choose between
two equally objectionable options: acquiesce in their children‘s media
exposure or remove their children entirely from the modern media
society.
So often, opponents of any measures aimed at helping parents
prevent their children‘s exposure to unwanted nonpolitical media
entertainment cast those measures in terms of ―censorship.‖ And indeed,history has proven that censorship is a futile exercise and almost neveraccomplishes what its advocates hope to accomplish.109 But not all speech
regulations amount to censorship. Censorship tries to achieve a complete
repression of a particular idea. This type of ban—the banishment of an
idea from social discourse—is quite different from measures whichsimply help unwilling recipients avoid exposure to certain kinds ofoffensive, nonpolitical speech.
There is a middle ground between complete, unrestricted freedom ofspeech and censorship. That middle ground lies in regulatory measures,
which strive to achieve choice facilitation. Choice facilitation is different
from censorship. It still allows ideas or images to remain in the social
discourse but provides greater power to those wishing to avoid certain
offensive or harmful media programming. In a way, choice facilitation
enhances freedom by giving more effective choice rights to the unwillingrecipient. For instance, poor families need to have Internet access intheir home for educational purposes. But why should they then have to108

See Garry, Right to Reject, supra note 58, at 151.
See generally PATRICK GARRY, AN AMERICAN PARADOX: CENSORSHIP IN A NATIONOF FREE SPEECH (1993) (arguing that censorship in America has historically proven futile).
109

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bear even more economic burdens through installing various filtering
devices or software just to keep out all harmful material to which they do
not wish to expose their children? Why should poor families have to bearsuch a burden or why should they be subjected to the difficult choice ofeither getting the Internet and accepting all the harmful material or
rejecting the Internet and denying their children educational
opportunities? Through narrowly drawn measures aimed at choicefacilitation, poor families may be able both to have the Internet andavoid their children‘s exposure to certain harmful material.
Choice facilitation measures do not amount to a ban on speech
because, given all the different media venues, whatever speech isregulated to provide choice facilitation in one venue should be in ample
supply in other venues—otherwise, such measures would be struck down
as unconstitutional. Thus, what occurs is not censorship but a balancingof rights between speakers and those wishing to avoid the speech. The
goal of the choice facilitation measure is not to censor speech but to allow
parents to prevent their children‘s exposure to certain kinds of
nonpolitical media entertainment. One example of a choice facilitation
measure that should be allowable under the First Amendment is the onethat was at issue in Denver Area, where the segregate-and-block scheme
strove to give parents the ability to avoid certain speech while also
allowing willing adults to obtain that speech.110 An analogy can be seenin the alcohol-free sections provided at major league ballparks across thecountry. Owners carve out one small section of a ballpark as alcohol-free
while allowing adults to obtain alcohol in every other section of thepark.111 Clearly, such measures do not amount to a ban on alcohol but
are merely an attempt to give parents the ability to choose theenvironment in which their children live.
Censorship has become a discredited endeavor, and arguably thegreat majority of society now believes in freedom of speech. The nature ofthat freedom, however, must extend to parents wishing to control the
media environment of their children, at least as much as it extends tothose media companies that wish to profit off of sexually explicit andgraphically violent speech. By striving to effectuate the freedom of thoseparents wishing to exercise their right to control their children‘s
upbringing, choice facilitation measures such as those at issue in Denver
Area essentially seek to achieve a greater level of freedom in society.

110

See supra notes 46–48 and accompanying text.
See, e.g., Fenway Park A-to-Z Guide, http://boston.redsox.mlb.com/bos/ballpark/
guide.jsp (follow ―Non-Alcohol Sections‖ hyperlink) (last visited Apr. 14, 2010); Yankee
Stadium A-to-Z Guide, http://newyork.yankees.mlb.com/nyy/ballpark/guide.jsp (follow―Alcohol-Free Seating‖ hyperlink) (last visited Apr. 14, 2010).
111