Halfway Home, 13 Law and Social Inquiry 413 (1988).
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Examining the proper role of broadcast regulation remains a central means for
testing our understanding of the First Amendment. This is true not only because
broadcasting plays a uniquely pervasive role in shaping public debate, but because
broadcast regulation has continually presented courts with commentators with real and
pressing issues that force us to give concrete meaning to the lofty exhortation
"Congress shall make no law...." In the past year alone, the Federal Communications
Commission rescinded its controversial but long-standing fairness doctrine; stepped up
enforcement of its decency standards; and may soon force Rupert Murdoch, but the
legislative legerdemain of Senator Kennedy, to divest himself of dual media ownership
in Boston and New York.
With these and other issues of broadcast regulation before the courts, Lucas
Powe offers a powerful and thought-provoking book, American Broadcasting and the First
Amendment, to shed empirical light on the efficacy of government control of the
electronic press. By presenting a rich and detailed account of the actual history of
broadcast regulation in the United States, Powe intends to distinguish among the
competing First Amendment theories which, as he correctly points out in his introduction,
are "contingently based on fact".
This essay suggests that while Powe's attempt is noble, his methodology is
incomplete and the facts he presents are not sufficient to reject any of the competing
First Amendment theories. The first section of this essay describes the theoretical
landscape in which Powe operates. The second and third sections describe the
weaknesses in Powe's factual approach and examine the FCC's fairness doctrine to
suggest what a more complete empirical test would entail. The fourth section relates the
competing theories of broadcast regulation to economic theories of capture.
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