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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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February 03, 2004

Issue Ads and Responsibility

Posted by Ernest Miller

John Palfrey takes an interesting and brief look at CBS's decision to air non-controversial issue ads, but not controversial ones, such as the anti-Bush contest winner (Is anti-smoking not an issue?). Palfrey's intutition seems to be that there is something wrong with CBS's decision, though under existing law it is clearly constitutional. For example, Palfrey points to Marsh v. Alabama, a company-town case. Although it isn't legally on point, Palfrey seems to be making an analogy to the Super Bowl because of the game's incredible popularity. Just as it is bad policy for a company-town to restrict the pamphleteer, so it is bad policy for CBS to restrict its television commercial sales for the extremely popular Super Bowl (though Palfrey is not claiming it is unconstitutional).

I agree with Palfrey's intutition that what CBS is doing is wrong. However, I don't think the problem has anything to do with the Super Bowl (should speech be more subject to regulation because it is popular?), but with our telecommunications regulatory scheme in general. Broadcasters, cable and satellite networks have the power to discriminate because the government has given them that power. Speakers, of course, should have the right to discriminate, that is what freedom of expression is all about. However, broadcasters, cable and satellite networks are not merely speakers but distributors as well. Of critical importance is that these networks are the creation of government regulation.

As I've argued previously, creating and maintaining such distribution monopolies is precisely one of the things the First Amendment was meant to prohibit (It's Freedom of the Press, Stupid). Letting broadcasters descriminate in what they will broadcast is like letting Chevrolet build a bridge on public land and then decide what cars get to cross it, or having railroads built using eminent (I almost wrote, "public") domain and then deciding who gets to transport goods via train. Interestingly, a similar analogy is used in Marsh v. Alabama, noted above:

Thus, the owners of privately held bridges, ferries, turnpikes and railroads may not operate them as freely as a farmer does his farm. Since these facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation. And, though the issue is not directly analogous to the one before us we do want to point out by way of illustration that such regulation may not result in an operation of these facilities, even by privately owned companies, which unconstitutionally interferes with and discriminates against interstate commerce. [emphasis added]

Palfrey ends his post with this:

But, leaving the Constitutionality question aside, and thinking hard about the relevant policy questions, I'm still unconvinced that CBS is wholly in the right on this one.

Palfrey is right. CBS is wrong. However, CBS is not simply wrong on "this one" but the very existence of government telecomm-regulation-created CBS is wrong in general (not to mention unconstitutional).

Comments (6) | Category: Freedom of Expression | Open Source | Telecomm


1. Brett Bellmore on February 4, 2004 10:19 AM writes...

The problem, IMO, is that while the networks are like a private bridge built on public land, the "land" is only public because the government seized all of it in the first place. And I'm really dubious about granting the government the power to regulate a communications medium, simply because it decided to up and confiscate all of something that was necessary to use that medium.

Rather like thinking that censorship of the press would be ok, if it came about because the government nationalized all the trees in the country, and thus was able to license the use of paper.

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2. Ernest Miller on February 4, 2004 03:18 PM writes...

We should have just let individuals seize spectrum based on who built the first transmitters?

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3. Brett Bellmore on February 4, 2004 09:23 PM writes...

Sure. Lockean aquisition works for land, why not for spectrum? It might have it's drawbacks, but letting the government own everything is scarcely an improvement.

Of course, the confiscation has already taken place, so that's not feasible anymore. What WOULD be feasible would be to auction off transferable property rights in spectrum, instead of maintaining government ownership of it all, and handing the free use of it out to people who agree to forfiet their 1st amendment rights in using it.

Imagine how few real rights we'd have today, if the government had treated land the way it treats spectrum, retaining ownership of the Louisiana purchase, and only letting people who agreed to give up their rights live there...

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4. Ernest Miller on February 4, 2004 11:44 PM writes...

Imagine how many railroads, highways and bridges would have been built without eminent domain. Imagine how many telephone polls would be around without government provided rights-of-way.

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5. Brett Bellmore on February 5, 2004 02:30 AM writes...

But the government doesn't retain ownership of all the land in the country, and condition it's use on forfieting your constitutional rights. That IS how it treats spectrum.

If the government wanted to retain a few percent of the available bandwidth for it's own uses, like it owns a few percent of the land area, that would be fine. But 100 percent? Gimme a break!

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6. Cypherpunk on February 5, 2004 07:01 AM writes...

I can't help noting how strange it sounds to be saying that "CBS's decision... is clearly constitutional". That's not an adjective normally applied to private actions.

More generally, how different would the issues be if, say, ESPN had won the bidding to show the Super Bowl? They don't broadcast over the airwaves. Would it be "bad policy" for ESPN to make its own decisions about what commercials to show during this incredibly popular program? ESPN is a private actor and should be under no obligation to show anyone else's ads.

And I don't agree that such networks have this power to discriminate only because government has given them that power. ESPN is not a government-established monopoly. It's a private company.

Ultimately the source of this particular discriminatory power is the uniqueness of the Super Bowl, and the decision by its managers to sell the television rights only to one network, a decision which they presumably take in their best interests. Those are the facts which directly translate into power on the part of that network to control what commercials people see during this popular spectacle.

I certainly understand why interlopers and meddlers would like to have a share of this power, but that doesn't make it right. And if it would be OK for ESPN to censor commercials, then it seems reasonable that CBS has the same power.

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