Charting a New Constitutional Jurisprudence for a Digital Age

By Randolph J. May
November 07, 2008
Communications law and policy would be very different today—and more suited to the now generally competitive and converging communications marketplace—if the Supreme Court’s twentieth century jurisprudence had been diff erent. As it was, the Court took an unduly restrictive view of First Amendment free speech rights and an overly broad view of the nondelegation doctrine. Thus, the Federal Communications Commission’s (FCC) Fairness Doctrine, requiring broadcasters to present both sides of controversial public issues, along with much other program content regulation, was upheld against First Amendment attack. And the FCC, the administrative agency charged under the Communications Act with regulating broadcasters, common carriers, and other communications companies, was given what at times amounted to unbridled discretion to regulate “in the public interest.” Arguably, at times the Court also took a somewhat overly narrow view of Fifth Amendment property rights of communications service providers...