CENSORSHIP AND THE REGULATION OF EXPRESSIONmany local restrictions have been declared uncon-
stitutional. Obscenity lies at the lowest rung of
speech and receives no protection under the First
Amendment. Although the requirements for dem-
onstrating that speech is obscene have become
progressively more demanding, Congress and the
states are permitted to ban the public dissemina-
tion of speech that meets these criteria (see be-
low). Depending upon how they are classified in
terms of value to society, other forms of speech
receive greater or lesser protection. For example,
unlicensed medical advice and misleading adver-
tising can be restricted through a ‘‘balancing test’’
which shows that the harm that stems from sup-
pressing them are fewer than the harm they cause.
A ‘‘balancing test’’ which shows that the harm that
stems from suppressing them are less than the
harm they cause.
Current First Amendment doctrine also re-
flects a second, cross-cutting mode of classification
according to which proposed regulations are cate-
gorized as content neutral, content based, or view-
point based. Of the three, content neutral regula-
tions must pass the lowest constitutional hurdle
whereas viewpoint-based regulations must pass
the highest. An example of content-neutral regula-
tions might include rules that designate sound-
level restrictions on expressive activities, such as
music in Central Park. Examples of viewpoint-
based restrictions might include a ban on a gay
parade or on either Democrat or Republican bill-
boards. Regulations on expression that are con-
tent based, but viewpoint neutral face a high, but
not insurmountable, constitutional hurdle. For
example, in their contractual relations with cable
companies, municipalities have been allowed to
require the companies to provide local news and
sports, and the federal government has been al-
lowed to prohibit all partisan political campaign-
ing on army bases.
The application of First Amendment law is
also a function of the technological environment,
or medium, in which expression is conveyed. Ex-
cept through the sporadic use of antitrust laws, the
Court has been least likely to permit regulations of
print-based news and most likely to allow regula-
tions of broadcast media. Cable television has
fallen somewhere in between, with regulations
reflecting the monopolistic control that compa-
nies exert over cable access to individual house-
holds and the fact that municipalities own the
property through which television cables are dis-
tributed. Telephone companies are classified as
‘‘common carriers,’’ which interdicts their editori-
al control over the information that passes through
their wires. The newest form of communication,
the Internet, has so far been granted the highest
rung of protection from government regulation.
The willingness of the Court to allow govern-
ment regulation of broadcast media lies largely
on three rationales: public ownership of the air-
waves, scarcity of the broadcast spectrum, and
‘‘pervasiveness’’ of the broadcast signal. First, the
airwaves through which broadcast signals are trans-
mitted are owned by the public and licensed on a
renewable basis to radio and television broadcast-
ers. Second, only a limited number of broadcast
signals can coexist in any given segment of air-
space (scarcity principle). In other words, the broad-
cast spectrum is a scarce resource, one that has
historically required some regulatory body to de-
cide which of the many interested broadcasters
will be allotted the frequencies that exist. The
management of these tasks is the function of the
FCC, which was authorized to regulate broadcast-
ers in the ‘‘public convenience, interest, or necessi-
ty.’’ In interpreting the ‘‘public-interest’’ clause,
the FCC has issued a number of requirements,
including, for example, a modicum of public-inter-
est programming such as local news, rights of reply
to those attacked in political editorials, and re-
quirements to air political advertisements. Regula-
tions governing the latter are governed by a ‘‘no
censorship’’ clause, whereby the FCC deprives
stations of editorial rights over political advertise-
ments. Although most of these regulations are
aimed to increase viewpoint diversity, broadcast-
ers often argue that FCC rules infringe upon their
rights to free speech. Finally, the Supreme Court’s
judgment that radio and television broadcasts are
‘‘pervasive’’ refers to the assumed inability of view-
ers and listeners to fully control their own access,
or that of their children, to unexpected program
content. The susceptibility of audience members
to be caught unawares by programming that of-
fends them, or that they deem harmful to their
children, has led the court to characterize such
broadcasts as an ‘‘uninvited intruder’’ into the
privacy of a viewer’s abode. Primarily to provide a
‘‘safe haven,’’ for children, the Court has allowed
time restrictions on the broadcast of ‘‘indecent’’ or
‘‘patently offensive’’ programming.