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Tuesday, November 29, 2005

Annals of the First Amendment, Part I

Here's an interesting article from today's LA Times, discussing the position of religious broadcasters in an FCC debate over whether cable subscribers should be forced to purchase their programming in bundles of channels, or whether they ought to be able to purchase channels on an a la carte basis.  Although the a la carte method has been championed by anti-indecency consumer groups, a number of televangelists are opposing their usual bedfellows and arguing for a bundling method.  A public hearing will be held on the issue today by Sen. Ted Stevens.

I'm not a telecom guy and won't offer substantive thoughts on the debate.  What I find interesting about this story, from a First Amendment perspective, is that it so clearly presents two sides of a now-classic debate over how we should view the First Amendment, in which none of the folks lined up on either side of the debate are precisely where they might normally be.  The anti-indecency forces, who might otherwise favor direct content regulation but here see an opportunity for a partial victory and thus are arguing for the a la carte method, here depart from the pro-regulatory tendencies and represent a classic individualistic and libertarian vision of the First Amendment, arguing that this method lets consumers choose what they will watch.  The televangelists, on the other hand, who I think in other instances (but not all instances) might champion a traditional individual rights model of speech, are here favoring a model that can only be described as a communitarian, Owen Fiss/Cass Sunstein style of speech in which people are exposed to different viewpoints they might not otherwise find on their own; says one religious broadcaster, "We don't just want to preach to the choir; we want to reach the unchurched."  I readily admit I never thought I'd have a chance to put Owen Fiss and Pat Robertson in the same sentence.

In any event, a nice stark presentation of competing visions of the First Amendment -- one that is much more likely to occur where the broadcasting/cable media are involved, as this paper discusses.  And one should not be too surprised that some sides are making arguments here that might be unfamiliar to them in other contexts, given both the proselytization imperative for many of the faiths involved and the equally stark fact that religious broadcasting can be big, big business. 

Posted by Paul Horwitz on November 29, 2005 at 12:08 PM in Constitutional thoughts | Permalink

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