Communications Media and the First Amendment: A Viewpoint-Neutral FCC Is Not Too Much to Ask For

I. INTRODUCTION In the "new economy" driven by the telecommunications industry, the Federal Communications Commission ("FCC" or "Commission") is a busy agency. Given the myriad legal issues faced daily by Commission decisionmakers and the lack of perfect clarity in major communications legislation,(1) one might be willing to overlook a few legal missteps here and there by the FCC. In one area of the law, however, the public can and should require a first-rate agency record: regulation of communications media without regard to the viewpoint expressed via that media, as required by basic First Amendment principle. This Article argues that the FCC should actively avoid viewpoint discrimination in its adjudication and rulemaking where the relevant statute does not require it. Part II describes the constitutional disfavor with which courts regard viewpoint distinctions. Part III explains why regulators reasonably can be expected to avoid viewpoint-discriminatory methods. Part IV studies cases in which the FCC adopted policies that turn on the viewpoints of regulated parties. Part V concludes that the FCC can and should avoid such constitutionally suspect classifications in the future. II. THE UNIQUELY DISFAVORED STATUS OF VIEWPOINT-BASED LAWS IN FIRST AMENDMENT JURISPRUDENCE First Amendment jurisprudence is by no means the clearest or least controversial body of law in the land. Some basic tenets, however, are readily ascertainable and generally accepted. Specifically, most courts and commentators consider governmental discrimination on the basis of viewpoint--that is, treating one group differently than another simply because of its particular perspective on a given topic--to be a classic and especially egregious violation of the Free Speech Clause of the First Amendment. As the Supreme Court has explained, "[w]hen the government targets not [just] subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant."(2) Viewpoint-based rules so offend First Amendment values that uniquely stringent constitutional standards govern their use. For example, government cannot censor wholly unprotected and otherwise proscribable speech based on its like or dislike of a particular message expressed by such speech;(3) government may make certain content-based distinctions within categories of unprotected speech, however.(4) Similarly, in nonpublic fora, where government decisionmakers have wide latitude to regulate speech, they still may not bar speakers on the basis of their viewpoints.(5) Finally, although the Court has sanctioned in broad terms governmental judgments on funding when based on content or even a certain philosophy of a given subject,(6) its more recent cases suggest a contrary trend. These cases clearly establish (to the dismay of some Justices) that the ban on viewpoint discrimination fully applies in the context of funding.(7) As these various constitutional standards reflect, viewpoint-based rules occupy the very bottom of the free speech barrel. This uniquely disfavored legal status stands to reason. It is sufficiently problematic for government to declare that no one can talk about a certain topic--that is, to regulate speech based on content or subject matter. To allow some speakers to express an opinion on that topic, however, while quieting those with any other understanding of the matter --to regulate speech by viewpoint--strikes one as even worse. In the first case, although the government suppresses speech, it does so roundly. Accordingly, no single view of the subject is being promoted over another. In the latter situation, however, government itself selects and then protects a particular point of view by permitting its expression while simultaneously prohibiting any contrary ones. Thus, government does not just neutralize discussion, but goes the extra step of affirmatively skewing the discussion in a self-selected direction. …