Harvard Law Review March, 1994 Note THE MESSAGE IN THE MEDIUM: THE FIRST AMENDMENT ON THE INFORMATION SUPERHIGHWAY Copyright (c) 1994 by The Harvard Law Review Association Technological advances have repeatedly spawned new forms of media, from broadcasting to cable television to computer networks. In its treatment of these new media, the Supreme Court has typically reasoned that "differences in the characteristics of new media justify differences in the First Amendment standards applied to them." [FN1] In practice, this approach has resulted in a hierarchy of protections for the media. Although the print medium reigns supreme in the First Amendment universe, new electronic media have been relegated to subordinate positions and subjected to greater government regulation. [FN2] In the meantime, the electronic word has supplanted the printed word as the most prevalent form of communication in our society. The development of the "information superhighway" [FN3] will pose a bold challenge to the First Amendment. Newspapers, television programs, movies, phone calls, computer data, commercial services such as banking and shopping, and a host of other forms of information and communication all will be reduced to the same format--digital bits--and all will be sent along the same medium- - fiber optic cables. What once were separate fixtures in our households-- television, telephone, and computer--will converge, in function if not in form. Although the ultimate fruition of these technologies may still be years away, the technological distinctions from which the Court has drawn different First Amendment implications have already begun to dissolve. The First Amendment challenge is to develop a regulatory scheme that is sensitive to the speech rights of both operators and users of the information superhighway, without being distracted by the dazzling technologies employed. Courts often succumb to the temptation to analogize new electronic media to existing technologies for which they have already developed First Amendment models. [FN4] Indeed, sometimes the First Amendment treatment of the new medium hinges on which analogy the court adopts. [FN5] Often, the process of analogizing has focused on the technological similarities of the different media. [FN6] Technological characteristics, however, should not be the crucial factor in determining the protection a message receives under the First Amendment. A political editorial is still a political editorial whether it is printed in a newspaper, broadcast as teletext on a television screen, downloaded from a computer network, or faxed over a phone line. To the extent that technology is relevant at all, the Court should focus not on the medium of transmission, but on the relationship between technological characteristics of the medium and the underlying First Amendment values at issue. Rather than resting upon ever-changing technologies to justify government regulation of the electronic media, First Amendment analysis should strip away the technological characteristics of the media. The Court should ground its analysis in essential First Amendment interests and draw upon salient technological characteristics only as the factual background against which the real First Amendment concerns must be applied. [FN7] A reexamination of the role of technology in First Amendment treatment of the media is particularly important today, because a technological revolution unprecedented in the history of telecommunications is at hand. As Ithiel de Sola Pool has stated: "Technical laymen, such as judges, perceive the new technology in that early, clumsy form, which then becomes their image of its nature, possibilities, and use. This perception is an incubus on later understanding." [FN8] To help ward off such an incubus, this Note seeks to distill the significance of changes in electronic media technology and to demarcate the constitutional foundations on which regulations of the emerging electronic media should rest. Part I provides a brief overview of the technological revolution under way due to the development of the information superhighway. Part II examines the technology-based rationales that currently justify government regulation of the electronic media and identifies the First Amendment interests that underlie these rationales. Part III isolates two major technological evolutions inherent in the new electronic media that will have a special impact on the First Amendment. Finally, Part IV outlines the types of regulation that may be both appropriate and constitutionally permissible on the information superhighway. I. THE NEW MEDIA TECHNOLOGIES AND THE INFORMATION SUPERHIGHWAY The new deals and strange alliances found almost weekly in the business section of any newspaper signal that something is afoot in the telecommunications world. Structural shifts in the industry, due in large measure to the rapid evolution and convergence of telecommunications technologies, promise to alter significantly the foundations upon which government regulation of the electronic media is premised. Although visions of a brave new telecommunications world are premature, the broad outlines of the new media technologies are clear enough to set forth a useful description. A. Telecommunications Today The telecommunications world roughly breaks down into four categories: broadcasting, cable television, telephone, and computer networks. This categorization is already artificial--phone companies can deliver video programming, and cable companies can provide phone service--but breaking down the pieces makes it easier to see how they will fit together in the future. Broadcasting delivers video and audio programming over the airwaves to televisions and radios within range of its signal. Broadcasting is a point to multi-point technology; that is, transmission is one-way and travels from a single broadcaster to a large number of receivers. Because of the physical capacity of the usable electromagnetic spectrum, a limited number of frequencies are available to broadcasters. In order to provide for the orderly allocation of these scarce frequencies, the Federal Communications Commission (FCC) has the authority under the Communications Act of 1934 to license broadcasters based on "public interest, convenience, and necessity." [FN9] Cable television sends video programming as analog signals-- measurable impulses of voltage--over coaxial cables. [FN10] Like broadcasting, cable allows for primarily one-way transmission. But whereas viewers of broadcasting receive only what the broadcaster chooses to offer, cable subscribers select from a basic package of programming that may be supplemented with premium channels for additional monthly fees. Cable systems currently carry approximately seventy-five channels of programming, but the technology exists, and is now being deployed, to carry over five hundred channels. [FN11] Under the Cable Communications Act of 1984, franchising authorities, such as municipalities, may require cable operators to devote a minimum number of channels to public, educational, and governmental uses and to reserve channels for leased commercial access. [FN12] More recent legislation imposes "must- carry" rules that require cable operators to carry certain local commercial broadcast stations and non-commercial educational stations. [FN13] Telephone technology has traditionally sent voice conversations by analog signals over networks of copper wires that link individual homes. Switching technology enables telephone companies to route millions of phone calls to the individual numbers dialed. Thus, unlike cable or broadcasting, telephones are designed for point-to-point, interactive communication. Telephone networks are divided into local and long-distance carriers. [FN14] The regional telephone companies, commonly called "telcos," operate local telephone networks within cities and between cities and suburbs. Although these networks still consist largely of copper wires, many telcos have upgraded their networks to use fiber- optic cables as well. Fiber-optic cables carry streams of digital information--bits of I's and o's--at the speed of light, hundreds of thousands of times faster than copper wire. The long-distance phone companies operate the cross-country fiber-optic cables that run between cities. Under the Communications Act of 1934 [FN15] and FCC regulations, [FN16] most phone network operators are regulated as "common carriers." As the Supreme Court has explained: "A common-carrier service in the communications context is one that 'makes a public offering to provide [communications facilities] whereby all members of the public who choose to employ such facilities may communicate or transmit intelligence of their own design and choosing....' " [FN17] A related regulatory policy of "universal service" aims at providing access to all households at "just and reasonable" prices, generally by subsidizing local phone service by charging premiums on business and long-distance services. [FN18] Recent technological developments have propelled the telcos beyond their traditional sphere by enabling them to send video programming over their wires, whether copper or fiber-optic. [FN19] The video programming provided by telcos differs, however, from that provided by cable or broadcasting. The video signal sent over a phone line goes to a single home and not to every television in the area, just as a voice conversation goes only to the number dialed and not to everyone in the phone book. The same technology that allows telcos to switch millions of calls to the correct homes also will allow them to switch video programming to whomever requests it. Because a telco can send out as many different video signals as it has lines, a switched video network has as many "channels" as it has users. The final category of communications technologies encompasses computer networks and electronic information services. Accessing computer networks requires a computer, a modem, and a phone line. The user dials the "host" computer of the network or service. Once connected, the user can communicate over the network through the modem, which translates digital data from the sending computer into analog signals appropriate for phone lines. The best known example of a computer network is Internet, a noncommercial information highway that connects universities, laboratories, government bodies, and individuals and has over ten million users in 102 countries. [FN20] Such networks and affiliated electronic information services provide a multitude of functions. Many computer networks operate as electronic post offices and, like common carriers, allow users to communicate with one another via electronic mail (E-mail). Networks also provide access to electronic bulletin boards that allow users to read and post messages on particular topics. Large commercial networks provide innumerable electronic information services, such as sports scores, news, computer games, and a host of other data bases, some of which even permit users to download data onto their own computers. [FN21] In this sense, computer networks are similar to secondary distributors of information, such as bookstores. B. Telecommunications Tomorrow To attempt to specify the exact characteristics of the information superhighway would be premature, because the limits of this technology are not yet evident. For the near future, electronic information services and advanced television programming technologies may continue to develop on two separate tracks before a truly integrated network emerges. [FN22] In addition, instead of one superhighway, it may be more accurate to speak of multiple information highways and thoroughfares. But for simplicity's sake, this Note will use the term "information superhighway" to encompass the entire gamut of emerging media technologies. The information superhighway will consist of a fiber-optic network (or a network of networks) that will carry virtually limitless television channels, home shopping and banking, interactive entertainment and video games, computer data bases, and commercial transactions. Technically termed a broadband communications network, the information superhighway will link households, businesses, and schools to virtually all available information resources. [FN23] Rather than transmitting information in different forms, such as analog signals and electromagnetic waves, the superhighway will carry all information, from voice to video, in the form of digital bits. [FN24] Development of the information superhighway will require a massive upgrade of existing networks, including increased use of fiber-optic technology, interconnection of existing networks, linking of individual households to the network, and deployment of complex hardware and software to manage and direct the flow of information. Economic factors will be an additional hurdle to the construction of the information superhighway. Although cable companies may have a competitive edge over the telcos because of lower rewiring costs, [FN25] cable companies have been subjected to increased rate regulation since passage of the Cable Consumer Protection and Competition Act of 1992. [FN26] The telcos, on the other hand, have steady streams of revenue and huge sums of capital because of their local phone monopolies. In the end, cooperation between the cable and phone companies, as foreshadowed by recent alliances, [FN27] may be the most likely scenario for construction of the information superhighway. In addition to the technological hurdles and economic constraints, government regulation will have significant influence on the construction of the information superhighway. The telecommunications world is riddled with cross-ownership bans, quantitative ownership limitations, and direct prohibitions on competition in certain services. [FN28] However, the foundations of telecommunications regulation have begun to shift as rapidly as the technology employed. The government has begun to focus on goals such as promoting private industry competition. [FN29] The private sector will apparently have the primary responsibility for constructing the network, particularly the development of consumer-oriented services, such as movies- on- demand. This focus on private competition is also apparent in changing regulatory policies. For example, although a provision of the Cable Communications Act of 1984 bars telcos from providing "video programming" in their service areas, [FN30] the FCC recently allowed telcos to send video dialtone, including pay-per-view movies, to customers. [FN31] The government is not prepared to abandon the regulatory field entirely, however. The Clinton administration has pressed for a redefinition of "universal service" to provide a higher standard for the minimum level of communications services that virtually every household should be able to afford. [FN32] It has also advocated "open access," which would give all providers of programming and information access to the information superhighway at a fair price in order to distribute their services. [FN33] Given the crucial role government regulation will play in the development and character of the information superhighway, it is imperative to reexamine First Amendment principles that may compel or limit such regulation. II. REGULATION OF THE ELECTRONIC MEDIA: TECHNOLOGY-BASED RATIONALES AND THE FIRST AMENDMENT The level of First Amendment protection afforded to speech usually depends on the content of the speech involved. [FN34] In the context of the electronic media, however, the permissible extent of government regulation often hinges on the medium of communication. This emphasis on the medium has created a fragmented First Amendment with a trifurcated communications regulatory structure that has traditionally consisted of print, common carriage, and broadcasting. [FN35] In the past decade, new branches have begun to sprout for cable television and computer networks as well. In general, this fragmentation has resulted in a lower level of protection for electronic media than for print media. Although this reduced protection stems from several concerns, [FN36] courts have often relied on conceptions of the technological characteristics of the electronic media to justify government regulations. This Part analyzes the two major technology-based rationales used to justify regulation of the electronic media--frequency scarcity and "pervasiveness." It will also attempt to strip away the technological aspects of these rationales to reveal the more important underlying First Amendment interests they serve. A. Frequency Scarcity The most prevalent vision of the First Amendment is rooted in the metaphor of a marketplace of ideas free from government suppression. [FN37] This laissez-faire vision has resulted in a First Amendment jurisprudence that places great weight on freedom from government regulation of speech; competition in the marketplace of ideas is best promoted when speakers are unfettered even in "the expression of opinions that we loathe and believe to be fraught with death." [FN38] As a corollary, because the ability to speak effectively often requires economic resources, speakers are generally given First Amendment protection for the choice to "plac[e] [their] property at the service of some ideologies and not others." [FN39] For example, the government cannot limit the amount of money candidates may spend from their personal finances on their own political campaigns. [FN40] The ability of a speaker to use resources to disseminate speech links the marketplace of ideas with the economic marketplace. The more wealth a speaker has, the greater the speaker's ability to disseminate her own ideas, whether by buying space in newspapers or on the air, or by buying the newspapers or broadcasting stations themselves. At the same time, the amount of money used to promote an idea may have little correlation with its merit. Thus, the combination of an unregulated marketplace of ideas and the ability to use property acquired in the economic marketplace to promote those ideas may create distortions in the truth-finding process. [FN41] Yet under the Supreme Court's jurisprudence, the government generally cannot suppress speech even if resource disparities between speakers threaten to drown out other voices. [FN42] In the context of the media, the emphasis on the speaker's First Amendment rights has been most evident with regard to the print medium, which enjoys virtually absolute protection from government restriction. Even when a newspaper possesses an economic monopoly and therefore has the power to exclude particular speech from its pages, the Court has recognized the primacy of publishers' First Amendment rights over others' claims of access. [FN43] In particular, courts have identified a number of distinct First Amendment interests threatened by government regulation of the print press. First, regulation may interfere with publishers' "editorial control and judgment" in deciding what to report and what not to report. [FN44] Second, because economic and other factors may limit the total number of pages printed, forcing the publisher to print certain speech may in effect substitute the compelled speech for material the publisher would rather include. [FN45] Third, regulations such as a right of reply penalize controversial speech by triggering a duty on the publisher to afford space for a response. [FN46] In addition, the publisher may be forced to associate with speech that she finds disagreeable, because the compelled speech may be seen as carrying the publisher's imprimatur. [FN47] Despite the seeming similarity between the First Amendment interests of broadcasters and those of print publishers, the Court has not extended the two groups similar First Amendment protection. For example, although the print media cannot be licensed, [FN48] a broadcaster may be denied a required license by the FCC on the grounds of "public interest, convenience, or necessity." [FN49] Similarly, although newspapers can exercise editorial control over everything that appears on their pages, [FN50] common carriers must transmit all messages regardless of their content. [FN51] The current legal regime permits significant broadcast regulation on the grounds that the electromagnetic spectrum is a scarce public resource. As a result of this scarcity, broadcasters receive the exclusive right to use a frequency only in exchange for accepting regulations to ensure that they operate in the public interest. Justice Frankfurter first enshrined the so- called scarcity rationale in National Broadcasting Co. v. United States, [FN52] noting that "[radio broadcasting] facilities are limited; they are not available to all who may wish to use them; the radio spectrum simply is not large enough to accommodate everybody." [FN53] The Court held that, due to these limitations, the FCC could not only allocate scarce broadcasting frequencies in order to prevent interference, but also take the content of broadcasters' transmissions into account in its licensing decisions. [FN54] The scarcity rationale has been used to support regulation of broadcasting in the form of both affirmative duties, such as requiring children's educational programming, [FN55] and negative prohibitions, such as restrictions on indecent language. [FN56] Perhaps the best known application of the rationale was Red Lion Broadcasting Co. v. FCC, [FN57] in which the Court upheld the "fairness doctrine," which required broadcasters to cover issues of public interest and to do so in a way that offered a reasonable opportunity to air contrasting views. [FN58] Commentators have subjected the frequency scarcity rationale to a barrage of criticism along two general lines. [FN59] First, scarcity is a characteristic of all economic goods, not just slices of the electromagnetic spectrum, and yet the government is prohibited from infringing upon the First Amendment rights of owners of these other economic goods. [FN60] Nor does broadcasting's use of a scarce public resource justify content-based regulation. Newspapers use newsracks on public property, and cable services use limited public utility pole space, yet courts have not countenanced such regulation for these media. [FN61] Second, as a factual matter, "there is not and never has been a true lack of broadcast frequencies." [FN62] Technological innovations have steadily increased the capacity of the spectrum. [FN63] In addition, the total number of channels available for programming has vastly increased due to greater competition from other video providers, especially cable television. [FN64] Thus, at least in terms of available channels, scarcity is no longer--if it ever was--descriptively accurate. Although frequency scarcity continues to be a touchstone for the analysis of broadcasters' First Amendment rights, [FN65] these criticisms have to a large degree undermined the rationale's strength, and the Court has recently expressed uneasiness about its continuing validity. [FN66] The FCC, for its part, determined that the rationale was obsolete and abandoned the fairness doctrine in 1987. [FN67] Even if it was at one time viable, the frequency scarcity rationale is technologically outmoded, and judicial recognition of this fact appears inevitable. The imminent demise of the frequency scarcity rationale raises the question of how the inconsistency between regulation of print and broadcast media ought to be resolved. One temptation is to extend the print model of little or no regulation to the electronic media. [FN68] However, a number of First Amendment policy considerations that underlie the technology-based rationale of frequency scarcity remain worthy of attention regardless of technological changes. As the courts face new communication technologies, the focus ought to be on the extent, if any, to which these underlying First Amendment policies justify regulation. Ultimately, as courts have recognized, the frequency scarcity rationale and the regulatory edifice built upon it were aimed at minimizing viewpoint scarcity. [FN69] The apparently limited number of broadcast channels threatened to restrict the number of viewpoints that would be expressed. [FN70] This danger, in turn, imperiled the First Amendment rights of viewers and listeners to receive the broad range of ideas necessary to create a well- functioning marketplace of ideas. [FN71] This link between frequency scarcity and the public's right to receive diverse views was apparent in Columbia Broadcasting System v. Democratic National Committee. [FN72] In that case, the Court rejected the claim that CBS's refusal to air paid advertisements placed by two groups violated the fairness doctrine and the groups' First Amendment rights. [FN73] The Court distinguished the right of the public to hear diverse points of view from the right of any particular speaker to have access to the medium. [FN74] Although fulfilling their obligation to present public issues fairly may require broadcasters to carry speakers with a range of viewpoints, it does not mean that any particular speaker has a right of access. Thus, although the Court was willing to use scarcity as the basis for protecting viewers' and listeners' rights to receive diverse viewpoints in Red Lion, it has not used the rationale to protect speakers' rights of access to the medium. The concern with viewpoint scarcity is reflected in both the types of regulations imposed on broadcasting under the frequency scarcity rationale and in the rhetoric used to justify those regulations. For example, the fairness doctrine increased the probability that the public would hear the views of those attacked in advertisements or criticized in editorials. [FN75] In upholding the doctrine, the Red Lion Court stated that "[i]t is the right of the viewers and listeners, not the right of the broadcasters, which is paramount," and that "monopolization" of the market of ideas by one speaker iculated by the FCC and accepted by the Court was that increased diversity in ownership might increase the diversity of expressed viewpoints. [FN78] In effect, the FCC used regulations designed to increase competition in the economic marketplace in order to maximize viewpoint competition in the marketplace of ideas. That the motivating force of the underlying First Amendment interest is viewpoint diversity, as opposed to any inherent technological characteristics of broadcasting, is evident in the attempt to transform the frequency scarcity rationale into physical and economic scarcity arguments for the regulation of cable television. [FN79] According to the physical scarcity argument, cable television operators should be subject to regulation because of the physical limits inherent in the use of the public rights of way: space for stringing cables along public utility poles or through underground conduits is limited. [FN80] The economic scarcity argument focuses on the existing monopoly status of most cable systems: [FN81] because of the high costs of wiring communities with cables, many consider cable markets to be natural monopolies and argue that regulation of cable operators is therefore a constitutionally permissible substitute for market competition. Although the economic scarcity rationale has been rejected for the print media--despite its empirical applicability [FN82]--some courts have used economic scarcity to justify the affirmative duties placed on cable systems. [FN83] The attempt to apply different forms of the scarcity argument to cable again reflects a concern with viewpoint scarcity that is present whenever the number of speakers with access to the means of communication is limited--whether the root cause be technological, physical, or economic. The interest in viewpoint diversity that underlies the frequency scarcity rationale suggests that an unregulated marketplace is not the appropriate metaphor for the First Amendment. Inequalities in the economic marketplace are one reason why "[t]here is inequality in the power to communicate ideas." [FN84] As a result of this power imbalance, reliance on the unregulated marketplace of ideas may result in a lack of viewpoint diversity. In the economic sphere, market defects and inequalities often lead to remedial government regulation. Frequency scarcity has served as one rationale for similar government intervention to remedy defects in the marketplace of ideas. Even if frequency scarcity is no longer a valid rationale, the underlying inequalities persist. Thus, regulation of the media may still be necessary to promote wide exposure to a variety of views. [FN85] The Court's mistake in regulating electronic media has not been in recognizing the First Amendment interests of viewers and the potential defects in the marketplace of ideas; rather, it has been in grounding those timeless concerns in the transient nature of the technologies involved. Early on, the Court seized upon frequency scarcity as a justification for regulating the electronic media in order to increase viewpoint diversity. The ensuing debate about the regulation of new communications technologies has too often focused on a comparison of technologies instead of on the underlying question of how a regulatory regime can assure that First Amendment values--which involve the interests of both speakers and listeners--can best be served. B. "Pervasiveness" Giving certain speakers access to a medium does not always advance the First Amendment interests of viewers and listeners by increasing viewpoint diversity. One person's speech may be another person's obscenity, insult, or even harm. [FN86] When interests clash, the privacy rights of viewers and listeners may place certain limits on a speaker's First Amendment rights. [FN87] In public, speakers' rights generally prevail. Viewers and listeners are expected to protect their own privacy by averting their eyes or covering their ears. [FN88] The government may limit speakers' rights only in the limited instances in which viewers and listeners are a "captive audience" and unable to avoid the undesired speech. [FN89] By contrast, in the home, the speaker must usually avoid intruding upon viewers' and listeners' privacy. [FN90] However, when individuals can exercise control over whether and how speech is received, the government may not make individuals' viewing and listening decisions for them. [FN91] In the context of the electronic media, the tension between the unfettered speech rights of some individuals and the legitimate privacy concerns of others has been most evident with regard to the broadcasting of "indecent" speech. The Supreme Court has upheld content-based regulations of broadcasters' transmissions on the rationale that, because the medium is "pervasive," government may regulate it to protect individuals' privacy interests. In FCC v. Pacific Foundation, [FN92] the Court held that the FCC had the authority to sanction a radio station that had aired an indecent monologue at two o'clock in the afternoon. [FN93] Because of the broadcast media's "uniquely pervasive presence in the lives of all Americans," [FN94] the Court found that the FCC's action did not violate the licensee's First Amendment rights. Although the term "pervasive" is vague, it appears to reflect at least two concerns. First, "[p]atently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder." [FN95] Second, broadcasting reaches a mass audience: "During most of the broadcast hours, both adults and unsupervised children are likely to be in the broadcast audience, and the broadcaster cannot reach willing adults without also reaching children." [FN96] Thus, restrictions on the content of broadcasters' speech may be necessary to protect citizens' privacy interests in their homes or to further the government's interest in reserving to parents control over the moral development of children. Both aspects of pervasiveness are technology-based in that broadcasting technology makes the medium an "intruder"--a signal is broadcast through the air directly into everyone's home without significant choice on the individual's part. Critics of the pervasiveness rationale have pointed out that the radio or television can simply be turned off, [FN97] or alternatively, need not be turned on in the first place. [FN98] In addition, prohibiting speech that is inappropriate for younger viewers threatens to restrict adults to receiving only programming that is suitable for children. [FN99] Finally, the Court has traditionally allowed parents, not the government, to be the guardians of their children's upbringing. [FN100] The vagueness of the pervasiveness rationale makes it difficult to divine the Pacifica Court's underlying concerns. Although the Court noted the "relevance" of individuals' privacy interests in the home, [FN101] it did not squarely rest its decision on a general privacy interest in being free from exposure to "indecent" speech. Indeed, some subsequent cases have suggested that Pacifica's holding rests primarily on the concern for children's well- being. [FN102] In addition, Pacifica's narrow holding did not bar "indecent" speech completely from the airwaves, and courts have subsequently held that some "safe harbor" must be provided for such programming. [FN103] The application of the pervasiveness rationale in the context of other electronic media helps to clarify the Court's underlying concerns to some extent. Although anyone can receive broadcasting, the cable television viewer must choose to subscribe to cable, must pay monthly fees in order to receive it, and may discontinue the subscription at any time. Cable is thus much more like an "invited guest" than the "intruder" that broadcasting is perceived to be. In addition, the concern about accessibility to children has less force. Access to inappropriate channels or certain types of programming can be controlled by parents through the use of "lockboxes" or "parental keys." [FN104] Courts have thus been reluctant to extend Pacifica's pervasiveness rationale to cable television, and cable has received a greater degree of First Amendment protection. [FN105] As a result, a program with identical content shown on the same television screen receives different First Amendment protection depending on whether it was transmitted over the airwaves or through a cable. [FN106] Courts have applied the pervasiveness rationale even more narrowly in the case of telephones. In Sable Communications, Inc. v. FCC, [FN107] the Court struck down a prohibition of indecent interstate telephone messages that tried to restrict children's access to "dial-a-porn" services. The Court reasoned that "[i]n contrast to ... means of expression which the recipient has no meaningful opportunity to avoid, the dial-it medium requires the listener to take affirmative steps to receive the communication." [FN108] This requirement distinguished Pacifica in the Court's view: "Placing a telephone call is not the same as turning on a radio and being taken by surprise by an indecent message." [FN109] The treatment of cable television and telephones reveals that the Court's pervasiveness rationale is an expression of the underlying First Amendment interest in viewers' and listeners' ability to control the receipt of programming and information in order both to protect their own sensibilities and those of their children. [FN110] The less control the individual has over the receipt of speech, the greater room government has to make some of the individual's choices for her. In such cases, content-based regulations may be necessary, although the preferable method of regulation would be to restore control to the viewer or listener. Conversely, the greater control the individual has over the receipt of speech, the less leeway government has--no matter how well-intentioned--to regulate the speech. The locus of control should remain "where it belongs--with the homeowner himself." [FN111] Under the Court's approach, a spectrum of control may thus be set out for the electronic media. [FN112] Broadcasting seems to lie at one extreme: because broadcasting comes directly into the home, unsolicited and uninvited, the viewer does not have enough control to eliminate the need for government regulation. Further along the spectrum of control lies cable television. A viewer must initially subscribe to and periodically pay for cable, but the programming is then readily available to anyone, including a child, who switches on the television. At the other extreme lies the telephone, for which listeners must affirmatively act to receive a transmission and which thus merits the least amount of protective government regulation. Unsolicited phone calls, however, such as obscene calls or telemarketing, may, like broadcasting, deprive the listener of control. [FN113] In these cases, government has responded to protect individuals' privacy interests. [FN114] In the context of the electronic media, the Court's treatment of the tension between speakers' rights to speak and listeners' rights not to hear has properly used the technologies involved as the backdrop to its First Amendment analysis. However, because the pervasiveness rationale is so vague, the Court may have created the appearance that it was protecting the diffuse privacy interests of viewers and listeners. The Court thus opened the door to paternalistic regulations that may remove decisions about what to listen to or watch from individuals and place them in the hands of government. Instead, the emphasis should be on the amount of control that individuals exercise over the medium. This inquiry will, by necessity, take technology into account. It will also keep government from making viewers' decisions for them, except when viewer control is impracticable. III. THE INFORMATION SUPERHIGHWAY'S IMPLICATIONS FOR THE FIRST AMENDMENT Technological change often outpaces the law. Examining the legal implications of emerging technologies can help narrow this gap. Although the precise contours of the new media technologies are not yet known, certain radical evolutions in the way we receive, transmit, and utilize information have already become apparent. This Part will set forth two evolutions-- infinite choices and interactivity--that will have a profound impact on First Amendment analysis of the electronic media. A. Infinite Choices--"The 500-Channel Future" The most immediate change evident in the new media technologies will be the exponential increase in the number of channels available on the information superhighway. These channels will not be devoted merely to traditional television programming, but will be used for everything from home banking to interactive communciation and access to computer data bases. In fact, the technology is already being put in place to provide 500 channels on some cable systems--more than even the most adroit "channel surfer" can navigate. The vast expansion of available channels will ensure a wide variety of programming. [FN115] The superhighway will be like cable television, which targets narrow audiences and often devotes entire channels to specific types of programming. Cable operators maximize subscriptions revenue by offering as diverse a set of channels as possible in order to attract every segment of the viewing public to at least some of its channels. [FN116] Similarly, a switched video network will expand the possibilities for diversification of programming ad infinitum. Telcos will be able to offer individual viewers a potentially infinite choice of programming that can be ordered at any time. The viewer will simply dial a computer data bank, and the program will be delivered over the network to the viewer's home. Infinity will replace scarcity. B. Interactivity--the Changing Locus of Editorial Control In today's telecommunications world, the originator of programming or information holds the reins of editorial control. With the construction of the information superhighway, the locus of editorial control will shift in the direction of users. Except in the case of telephones, regulation is currently premised on one-way transmission technology, not on interactive technology. Viewed this way, the speaker transmits to a mass audience that, although not captive, is generally passive; the audience hears only what the speaker chooses to tell it. The existing legal regime contemplates one speaker--the owner of the medium--whose communication is the battleground between government regulation and First Amendment protection. The information superhighway will allow for two or more speakers to exchange information interactively. In addition, unlike the telephone, the information superhighway will allow individuals to communicate with large groups of people, turning more users into publishers by magnifying the reach of their message. These technological evolutions will shift the locus of editorial control from broadcasters and publishers toward viewers and users. [FN117] Rather than having their choices made by a broadcaster or publisher, users of video and print data bases will select most of the information they receive. In addition, users will have access to much of the raw information itself, without the filter of a newspaper or television news program. These changes will give individuals the power to edit the information they receive and the programming they watch. In effect, individuals will create their own custom channels. [FN118] Individuals using interactive communications networks will also become their own publishers with relative ease. Individuals will no longer simply be "viewers" or "receivers" of the electronic media; they will become "users" of it, capable not only of creating their own video, voice, and text messages, but also of communicating them to a large number of others. The convergence of technologies will engender a convergence of roles between system owners, programmers, and users. The communications hierarchy will be replaced with interactivity. IV. THE FUTURE OF GOVERNMENT REGULATION ON THE INFORMATION SUPERHIGHWAY The Supreme Court does not have a particularly strong record of grasping the First Amendment implications of new media technologies. [FN119] In addition, courts sometimes have a disturbing tendency to treat regulations of the electronic media as principally structural economic regulations without recognizing the effects on First Amendment values. [FN120] Because the technological, economic, and regulatory issues bound up with the information superhighway are especially intricate, there is a danger that initially courts will be insufficiently sensitive to the important First Amendment interests at stake, and that these early missteps will be "an incubus on later understanding." [FN121] Missteps are particularly likely if courts rely too heavily on a medium's technology as an indication of the appropriate level of First Amendment protection instead of as simply the factual background against which the real First Amendment concerns must be viewed. Ultimately, regulation of the information superhighway should be premised on the fundamental principle that the First Amendment protects messages, not media. [FN122] This Part examines how the two technology-driven evolutions discussed above--infinity and interactivity--will reshape the interests served by the First Amendment in the context of the electronic media. This Part then explores the types of regulations that may be constitutionally permissible in light of these changing interests. A. The Changing Balance of First Amendment Interests Speakers' First Amendment rights will change in character from those typically asserted by the media today. The information superhighway will allow for at least three different types of speakers: network operators, programmers/service providers, and users. [FN123] Network operators will be the owners of the thoroughfares along which users will travel and to which all smaller networks, programmers, and service providers will be connected. For network operators, every strand of the First Amendment rights typically asserted by today's media will be altered. [FN124] Network operators will have less claim to a right of editorial discretion because, much like telephone companies today, operators will resemble conduits more than editors. Like cable companies, operators may exercise a form of general editorial discretion by determining the options from which the user may choose through controlling access to the network. [FN125] However, both interactivity and infinite capacity will reduce the editorial control of network operators. Interactivity will enable users to perform many typical editorial functions, such as selecting the particular program or information they wish to receive and the time at which programming enters their homes. In addition, infinite capacity will eliminate an operator's need to allocate limited space. In the absence of regulation, information highway operators will still be able to decline to carry a program or service. Unlike cable companies today, however, they will not be forced to make editorial decisions about which of two services they would rather include: they can simply carry both. Furthermore, to the extent reduced editorial discretion makes the information superhighway more of a conduit and less of an editorial product, programming and services carried as a result of compelled access will be less likely to carry the imprimatur of the network operator. Thus, the network operator's First Amendment interest in being free from association with disagreeble speech will carry less weight. Finally, infinite capacity also reduces the danger that government access requirements will substitute an operator's speech with speech it would not have chosen; [FN126] there will always be extra room for the operator's speech. [FN127] For programmers/service providers, government control over the content of programming will generally implicate the same First Amendment concerns as under current technologies. Howard Stern's First Amendment interests as a speaker are the same whether his indecent talk show enters homes via broadcast, cable, or the information superhighway. [FN128] However, the relative weight of programmers' First Amendment interests may be altered because of the changing weight of users' competing rights on the information superhighway. The fulcrum upon which these competing interests must be balanced will be the degree of control exercised by users of the specific technology employed. For example, if changes in technology increase users' ability to control the receipt of programming, the balance may shift in favor of programmers' First Amendment rights and restrict government regulation. Programmers' provision of services, such as banking or home shopping, may pose different First Amendment problems. As commercial activities and transactions are transplanted onto a medium that is at root focused on communication, the question will arise whether the medium imbues commercial activities with First Amendment protection. That is, if a non-First Amendment activity such as a bank transaction occurs over a communications medium, is the First Amendment implicated? Commercial speech receives First Amendment protection, albeit at a lower level than non-commercial speech. [FN129] But commercial speech is expression about goods and services, as distinct from the actual transactions. [FN130] The information superhighway is likely to blur this distinction. [FN131] Interactivity will make it difficult to differentiate the transaction from speech that concerns the transaction. [FN132] To the extent that these two activities become indistinguishable, courts may have to apply at least a minimal First Amendment standard to activities that were previously clearly outside the ambit of the First Amendment. [FN133] The speech/conduct distinction may therefore blur for economic activities as well as for expressive ones. The last type of speaker, the user, will experience the greatest change in First Amendment interests on the information superhighway. With current technology, the user is largely a passive recipient of information; except when using the telephone, she is actually not a speaker at all, but a viewer or listener. Interactivity will soon characterize all future media, however. Courts have already recognized that the First Amendment protects telephone callers' speech. [FN134] Presumably, such protection would also extend to other forms of interactive communications over the superhighway. Indeed, the ability to communicate interactively with a large segment of the public through point-to-multipoint transmissions will reinforce users' First Amendment interests, in part because the speech will contribute to public discourse rather than to a merely private conversation. [FN135] The heightened First Amendment interests of the user will have implications in two directions. First, because the user's expression will be protected by the First Amendment, any regulation by the government will be subject to normal First Amendment standards. In other words, the First Amendment will serve as a shield against government suppression. In addition, the user's interest in disseminating her message to other members of the public over the superhighway may be the first step in constructing a constitutional argument to prevent the network operator from excluding a user. In this way, the First Amendment will also act as a sword to ensure access. For all types of speakers on the information superhighway, interactivity will also alter the balance of constitutional interests under the pervasiveness rationale. The balance between speakers' rights and listeners' privacy depends largely on the forum in which the speech takes place. [FN136] The Pacifica Court pictured broadcasting as an activity that occurs inside the home, a carefully protected sphere within which the burden is on the speaker to avoid giving offense. However, the dissent in Pacifica noted that, "because the radio is undeniably a public medium, [turning on a radio is] more properly viewed as a decision to take part, if only as a listener, in an ongoing public discourse." [FN137] Thus, unlike the majority, the dissent accepted that public discourse can take place outside a physical public space. The relevance of physical space to public discourse will continue to decrease with the emergency of the information superhighway. [FN138] Turning on a computer and logging onto a communications network will be akin to turning on the radio in Pacifica. Indeed, the interactive element of the medium may make logging on the electronic equivalent of throwing on a coat and walking to the town square. Although public discourse will shift from physical spaces to cyberspace, [FN139] its protection under the First Amendment will be equally vital. Even if the information superhighway is not understood as a cyberspace forum for public discourse, it will make possible a functional distinction between active and passive receipt of programming and information. Users of the information superhighway who actively attempt to obtain information from data banks, electronic networks, and programming menus will have a high level of control. However, users will have little control if they are bombarded with unsolicited information, such as the electronic equivalent of junk mail or obscene phone calls. Government regulation is more supportable in the latter case. With broadcasting, the prohibition of a certain type of speech makes it unavailable to all viewers. [FN140] However, with the information superhighway, a "win-win" situation is possible. The government can protect users' privacy by regulating the transmission of information over which the recipient has no control, and yet allow other users actively to obtain such information over the same medium. B. Regulation on the Information Superhighway The possibilities for regulation of the information superhighway will depend to some degree on the structural and technological characteristics of the new media technologies. For example, if a monopoly were to develop, more regulation might be justified to protect against the threat of private censorship. [FN141] Despite such uncertainties, the changes in technology and resulting shifts in First Amendment interests outlined above foreshadow at least some of the likely regulatory issues and the framework in which those issues should be addressed. Most regulations will fall under one of three broad categories: access regulations, content regulations, and ownership regulations. [FN142] I. Access Regulations.--Regardless of whether frequency scarcity was ever a valid rationale for regulating broadcasting, the advent of infinite channel capacity will put this concern to rest. The problem of viewpoint scarcity could, in theory, be eliminated--there will be plenty of space to air all views. [FN143] Indeed, the potentially enormous number of users, each of whom is capable of interactive communication with the public, increases the likelihood that a wide variety of viewpoints will be aired. [FN144] These beneficial attributes, however, depend upon freedom of access to the information superhighway. If only certain classes of users have access, then particular viewpoints may in practice remain scarce. Alternatively, if network owners exclude certain types of communications, either due to their viewpoint or content, the First Amendment rights of viewers and listeners might be impaired. Thus, although frequency scarcity would no longer prevent the dissemination of diverse views, access scarcity might. The government has consistently taken the position that the information superhighway should be universally accessible. [FN145] This policy would advance First Amendment values such as fostering diversity of viewpoints and ensuring users a forum in which to engage in public discourse. If the government continues to promote this goal, as it should, one of the primary battlegrounds over regulation of the information superhighway will be issues relating to access. [FN146] In general, information superhighway operators will have an incentive to carry as many programmers and service providers as are available. Increasing the number of people on the network will presumably argument revenues from access charges and transmission fees. Nevertheless, in some cases, such as if an operator has a financial interest in a programmer, the operator may have an economic or ideological incentive to deny access. [FN147] The Court is already facing the access issue in at least a limited form in Turner Broadcasting System, Inc. v. FCC, [FN148] a case concerning must-carry regulations that require cable operators to carry particular programmers, such as local broadcasters. However, as the lower court opinion upholding these restrictions illustrates, [FN149] limited channel capacity has distorted some of the First Amendment values at issue with such regulations. First, cable operators argue that compelled access substitutes the compelled speech for their own. [FN150] Second, the specification of a limited group of broadcasters to receive preferred treatment under must-carry provisions may be found to be content-based. [FN151] The advent of infinite capacity will eliminate both of these arguments. A network operator can include as much of its own speech as it desires. Moreover, infinite capacity would allow the government to require universal access and thereby avoid the charge of content- based regulation. [FN152] In Red Lion Broadcasting Co. v. FCC, [FN153] the Court noted that it would be idle to posit a right to broadcast; because of scarcity, such a right could not be exercised by all. [FN154] With infinite capacity, however, positing such a right is no longer so idle a speculation. Nonetheless, a network operator will still have plausible First Amendment arguments--such as the editorial right to choose what programming to offer [FN155]--that might stand as a barrier to access requirements. One potential avenue for creating a right to universal access on the information superhighway would be to treat operators as common carriers. As a common carrier, an information superhighway operator would have to make transmission services available to the public on a nondiscriminatory basis. [FN156] This approach has some appeal, especially to the extent that an information superhighway operator will exercise fewer editorial functions than current media operators. [FN157] However, both the FCC and the courts have viewed as fundamental to common carriage the characteristic that the "choice of the specific intelligence to be transmitted is ... the sole responsibility or prerogative of the subscriber and not the carrier." [FN158] Thus, common carriage may not be a comfortable fit unless the government chooses to treat the operator entirely as a conduit and refuses to allow any editorial control over content. [FN159] Yet some degree of editorial discretion is probably necessary. For example, network operators will presumably need to exercise some control over the channel through which a particular program is transmitted. Suppose the superhighway has a number of channels, such as a public affairs channel and another channel devoted to a particular type of ideological programming. The decision about which channel is appropriate necessarily entails some editorial discretion that implicates content; indeed, the program is in effect labelled as having a particular type of content. In addition, it is unclear whether the government may constitutionally require an entity to operate as a common carrier. [FN160] The issue becomes particularly difficult to the extent that common carrier status entails forced diminution of the carrier's First Amendment rights, as some courts and commentators have suggested. [FN161] An alternative to imposing common carrier status would be direct regulation that requires the network operator to provide universal access. Although the government usually cannot force property owners to furnish their property as a forum for others' speech, [FN162] such regulation is not unprecedented. In PruneYard Shopping Center v. Robins, [FN163] the Court held that states have the authority to require public shopping center owners to grant access to picketers. [FN164] The Court rested its ruling on the characteristics of a shopping mall. It noted that the state was not dictating a specific message, that the mall owner could disavow connection with the speech by posting signs, and that a shopping mall is not limited to personal use but open to the public. [FN165] The information superhighway appears to share the same features in relevant respects. Two of the factors clearly apply. First, a requirement of universal access would not involve the state dictating a specific message. Second, the operator could post electronic notices to make clear that it did not necessarily endorse the speech it was compelled to carry. Indeed, a universal access requirement would tend to reduce any expectation that the operator agreed with all the speech on the information superhighway, much like common carrier status insulates telephone companies from the expectation that they endorse all speech in phone conversations. [FN166] As for the third factor, the information superhighway will not be for the personal use of the owner: like the owner of a shopping mall, the operator will have compromised its exclusionary privilege by opening the network to a large number of people. In fact, in one sense, required access is more compatible with the superhighway owner's choice to open its property than with the shopping mall owner's. The shopping mall owner chooses to give almost everyone access primarily for the purpose of shopping; in Pruneyard, the state determined that speech rights were bundled into the general grant of access. The information superhighway owner, by contrast, has opened the network for the very purpose of communication, and the state's action merely extends that purpose. On the other hand, the information superhighway owner will be a more credible claimant of First Amendment rights than the mall owner. To guarantee access to others for the purpose of communication would potentially interfere with the superhighway owner's ability to get its message across, whereas allowing speakers into a mall does not directly encroach on the mall owner's business of selling goods. In this respect, Pruneyard may appear to be less apt than Miami Herald Publishing Co. v. Tornillo, [FN167] in which the Court invalidated a statutory right of access to a newspaper because such a right was an "intrusion into the function of editors." [FN168] However, the editorial functions identified as worthy of First Amendment protection in Miami Herald are less significant in the case of the information superhighway. The access right overturned in Miami Herald was triggered due to the content of the original speech; as a result, the Court feared the statute might chill controversial speech on the part of the newspaper. [FN169] A requirement of universal access on the information superhighway would not have such an effect, because no additional access would be triggered by the content of any speech. In addition, because a newspaper is essentially a speaker, anything printed in the paper carries the publisher's imprimatur. Although the information superhighway operator may have a right to speak over the network, the operator will be more of a conduit than an editor and is unlikely to be identified with the speech it is compelled to carry. Unlike a newspaper publisher, the superhighway owner will be carrying the voices of a wide range of speakers--its own message will be merely one of many. Thus, compelled access will be less of an intrusion into the communicative functions of the information superhighway owner than the newspaper publisher, and Miami Herald should not bar application of Pruneyard to uphold access regulations. Even if the state has the authority to guarantee access, a further question remains about whether such access is constitutionally required as a consequence of the prospective speakers' First Amendment rights. Hudgens v. NLRB [FN170] established that even for entities such as shopping malls individuals do not have a First Amendment right of access in the absence of state action. [FN171] Because the information superhighway will probably be privately built and owned, [FN172] finding state action will depend on being able to fit the information superhighway owners' actions into one of the doctrines under which courts sometimes attribute private action to the state. Neither of the two most plausible theories--public function [FN173] and government entanglement [FN174]--are likely to succeed. Nevertheless, Pruneyard-style access regulations are likely to advance First Amendment values like viewpoint diversity, without infringing heavily on the First Amendment rights of the operator. As a result, universal access for speakers would certainly appear to be a desirable and achievable goal of government regulation. 2. Content-Based Regulations.--The appropriateness of content-based regulations in the future will depend on how the First Amendment interests that underlie the technology-based rationales play out against the backdrop of the technological characteristics of the new media. Regulations that have been justified on the basis of frequency scarcity, such as the fairness doctrine, will be necessary only to the extent access is restricted; if access is universal, concerns about viewpoint scarcity will be largely moot. The need for regulations that have been justified on the basis of pervasiveness, such as those on indecent speech, will turn on the conceptual transition from physical space to cyberspace and on the effect that changes in how users obtain, manipulate, and send information will have on the underlying interest in user control. The balance between speakers' rights and listeners' privacy interests depends largely on how courts conceptualize the forum in which the speech takes place. If the cyberspace in which the information superhighway operates is regarded as analogous to public space, [FN175] then First Amendment principles evident outside of the electronic media suggest that the burden may be on users of the information superhighway to avoid unwanted messages by electronically averting their eyes. [FN176] In other words, accessing the information superhighway may be like walking onto a city street, and users should be expected to cope with the wide array of entertainment, annoyance, and offense that normally takes place there. Even if cyberspace is not treated as public space, the distinction between active and passive receipt of information [FN177]--that is, the distinction between control and lack of control--will still alter the role of content- based regulation. First, content-based restraints on the active receipt of information will have little justification. When users control what information they choose to receive and what programming they wish to watch, government regulation will not be necessary to protect their privacy interests; indeed, government restrictions on what types of programming and information may be offered would interfere with the autonomy of users' choices. [FN178] Content-based regulations would still seem appropriate for the classes of speech that receive no First Amendment protection at all, such as child pornography. However, even the case for placing restrictions on some classes of unprotected speech may be weakened to some extent. In Stanley v. Georgia, [FN179] the Court upheld the right of an individual to possess obscene material within the privacy of his home. [FN180] The information superhighway will shift the distribution of pornography from the physical public sphere to the cyberspace sphere; the distinction between home and other places will have less significance. As a result, traditional concerns about pornography, such as accessibility to children, sensibilities of the general public, and secondary effects on the neighborhood surrounding the point of distribution, will be eliminated on the information superhighway. [FN181] Second, in the case of passive receipt of information, government will need a careful approach to determine when content-based regulations are appropriate. If the user cannot exercise meaningful control to block the receipt of undesired or offensive speech, government regulation may be suitable. Ideally, such regulation should attempt to restore control to the user. For example, regulations allowing users to give notice to certain classes of programmers, such as those with "adult" messages, that they do not wish to receive information from them--analogous to the law regarding mail solicitation upheld in Rowan [FN182]--would be apt. Similarly, the electronic equivalent of caller-identification technology would allow users to make informed decisions about what to receive and what not to receive. In general, regulations that protect users if they do not have the ability to control the receipt of information need not deprive every user of the ability to obtain such information. Because such information will still be available on the same medium to users who wish actively to obtain it, such regulations are less offensive to the First Amendment. The programming tastes of the many need not be held hostage to the particular sensibilities of the few, or vice versa. Regardless of the appropriateness of content-based regulations, significant problems will arise in their actual implementation. Speech with the potential to offend will not only come from a wide variety of programmers, it will also originate with diffuse and innumerable users. Users of the information superhighway may subject other users to everything from hate E-mail and obscene video phone calls to computer viruses. The government cannot censor the speech of multiple diffuse speakers as easily as it can censor the speech of a few concentrated speakers. [FN183] In the end, the role of content-based regulations in theory may be irrelevant if such regulations will be unenforceable in practice. In sum, with regard to content-based regulations, the information superhighway should neither force the electronic media into the fold of the highly-protected print media, nor should it leave them exposed to the same types of regulations as broadcasting. Rather, careful attention to the underlying interests in viewpoint diversity and user control requires a balanced approach that, at its best, may serve the First Amendment better than any of the existing models for the electronic media. 3. Ownership Regulations.--A common media ownership regulation is a restriction on cross-ownership of different forms of media and the provision of multiple services by a single entity. For example, for many years telephone companies have been forbidden from providing cable television service in their own service areas. [FN184] Similarly, one of the original terms of the AT & T consent decree prohibited AT & T from entering the field of electronic publishing. [FN185] As communication technologies converge on the information superhighway, cross-ownership regulations become less relevant. It makes little sense to prohibit a company from offering both cable and electronic publishing services when the two technologies become effectively indistinguishable. Indeed, to require each service to be provided by different companies would impede the impulse toward convergence that is driving the creation of the information superhighway. Despite the incongruity of applying many of these regulations to the information superhighway, one viable regulation would be to restrict or even prohibit the information superhighway owner from providing programming or services over the network or having a significant financial interest in other entities that do so. Such "cross-interest" restrictions would remove financial incentives for an operator to deny access [FN186] and thereby provide a potential alternative route to increasing access if the government did not, or could not, require universal access directly. Even if cross-interest restrictions would promote desirable policies, it is unclear whether such regulations would survive First Amendment scrutiny. The FCC and the courts have shown increasing sympathy to the argument that ownership regulations infringe on the First Amendment rights of those regulated. In the closely-watched case Chesapeake & Potomac Telephone Co. v. United States, [FN187] a federal district court invalidated a provision of the 1984 Cable Act that barred telephone companies and their affiliates from providing "video programming" on the grounds that the ban violated the telephone company's First Amendment rights. [FN188] The court held that the regulation must be subject to intermediate scrutiny under Ward v. Rock Against Racism, [FN189] because it directly abridged the right to speak by means of a significant mode of communication. [FN190] According to the court, a blanket ban on entering the industry failed the Ward test, because it was not narrowly tailored to serve the government's purported interest in diversity of ownership. [FN191] Although the courts are still divided on the First Amendment issues, [FN192] the trend seems to be toward invalidating these forms of regulation. This trend will only be accelerated by upcoming technological changes. For example, the Chesapeake & Potomac court stated that the cross-ownership ban satisfied the Ward test requirement that the subject of regulation have ample access to alternative channels of communication. [FN193] But denial of the information superhighway operator's right to speak via its own facilities would probably fail this component. Current restrictions only prevent an entity from communicating through multiple types of channels. For example, even if a broadcaster cannot publish, it can still effectively speak by broadcasting. To deny the information superhighway owner the right to speak over its own facilities, on the other hand, might effectively deprive it of any viable means of mass communication; the convergence of media technologies will mean that all such communication will travel over the same fiber-optic cables. In addition, other First Amendment policies that currently support structural regulations will probably be weaker on the information superhighway. One of the rationales for current regulation depends on a form of scarcity: the FCC's decision to restrict telephone-cable cross-ownership was premised in part on the belief that if a telephone company used cable facilities to send its own programming, there would be little room for anyone else to send programming. [FN194] Similarly, "the Commission's willingness to allow a carrier to be its own customer is inversely related to the likelihood that the carrier's use of its facilities will make the facility less available to others." [FN195] In both instances, the underlying fear is viewpoint scarcity. With the advent of infinite capacity, the owner's use of the information superhighway will not make "the facility less available to others," and thus, there may be less reason for such restrictions. V. CONCLUSION The Constitution sometimes evolves gradually, sometimes imperceptibly, and sometimes not at all. The Constitution may also evolve in quick and radical jumps, however, as a result of changes in the nature of society, in the political and legal landscape, or even in the Court's personnel. Technological developments can also drive the Constitution to move by first and starts. The convergence of the electronic media and the consequent development of the information superhighway may be just such a technological change. And the characteristics accompanying this new technology--infinity and interactivity- - may give the First Amendment a swift kick. The purpose of this Note has been both to clarify the current status of First Amendment jurisprudence in the context of the electronic media and to describe the direction in which it should head. By most accounts, the current First Amendment treatment of the electronic media is flawed, or at the very least, poorly rationalized. In particular, by misconceiving the relationship between technology and First Amendment interests such as viewpoint diversity and user control, the Court has cut the electronic media loose from their First Amendment moorings. Although it may be premature to pinpoint the precise direction in which the First Amendment should move, it is important to begin developing a road map. A change in First Amendment jurisprudence holds out the promise that the inconsistent treatment of the existing electronic media will be rectified. But such a change simultaneously poses the danger that the confusion will be extended and become further entrenched in free speech law. The transient nature of communications technologies requires that the evolution of the First Amendment be grounded in the underlying interests that the First Amendment seeks to protect. Focusing on such guideposts makes the prospect of a rapid change in the First Amendment less threatening and the hope for a regulatory regime that advances free speech more realizable. FN1. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 386 (1969). FN2. See, e.g., FCC v. Pacifica Found., 438 U.S. 726, 748 (1978) ("[O]f all forms of communication, it is broadcasting that has received the most limited First Amendment protection."). FN3. "Information superhighway" is a term initially popularized by then- Senator Al Gore. See Al Gore, Networking the Future: We Need a National "Superhighway" for Computer Information, WASH. POST, July 15, 1990, at B3. FN4. See, e.g., City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 496 (1986) (Blackmun, J., concurring) ("In assessing First Amendment claims concerning cable access, the Court must determine whether the characteristics of cable television make it sufficiently analogous to another medium to warrant application of an already existing standard or whether those characteristics require a new analysis."). Academic commentary also often sets out the existing regulatory models-- print, broadcasting, and common carrier--and then tries by analogy to fit a new media technology into one or more of the old models. See, e.g., Philip H. Miller, Note, New Technology, Old Problem: Determining the First Amendment Status of Electronic Information Services, 61 FORDHAM L.REV. 1147, 1190-91 (1993) (arguing, in a section entitled "Coming Up With the Correct Analogy," that computer electronic information services are analogous to print publishers). FN5. Compare Midwest Video Corp. v. FCC, 571 F.2d 1025, 1056 (8th Cir.1978), aff'd, 440 U.S. 689 (1979) (overturning access regulations in part because cable television is indistinguishable from newspapers) with Berkshire Cablevision, Inc. v. Burke, 571 F.Supp. 976, 986 (D.R.I.1983), vacated, 773 F.2d 382 (1st Cir.1985) (upholding access regulations in part because cable service is analogous to broadcasting). FN6. For example, in Telecommunications Research & Action Center v. FCC, 801 F.2d 501 (D.C.Cir.1986), cert. denied, 482 U.S. 919 (1987), the D.C. Circuit held that the FCC could not refuse to apply regulations that are constitutionally permissible for broadcasting to teletext. See id. at 509. Teletext is the functional equivalent of print, except that the text appears on a television screen instead of a sheet of paper. The court, however, found the technological analogy to broadcasting to be dispositive: "Teletext, whatever its similarities to print media, uses broadcast frequencies, and that, given Red Lion, would seem to be that." Id. FN7. Cf. Laurence H. Tribe, The Constitution in Cyberspace: Law and Liberty Beyond the Electronic Frontier, Keynote Address at the First Conference on Computers, Freedom and Privacy (Mar. 26, 1991) (on file with the Harvard Law School Library) ("[T]he Constitution's norms, at their deepest level, must be invariant under merely technological transformations."). FN8. ITHIEL DE SOLA POOL, TECHNOLOGIES OF FREEDOM 7 (1983). FN9. 47 U.S.C. s 309(a) (1988). FN10. Cable television currently serves approximately 62% of the nation's households. See John Markoff, Cable TV Chimes in with Some High-Tech Plans, N.Y. TIMES, June 8, 1993, at D23. FN11. See Richard Ernsberger, Jr., The Patron Saint of Channel Surfing, NEWSWEEK, May 31, 1993, at 46. FN12. See 47 U.S.C. ss 531-532 (1988 & Supp. IV 1992). After the 1992 Amendments to the Act, franchising authorities may no longer grant monopoly franchises to cable companies. See id. at s 541. FN13. See The Cable Television Consumer Protection and Competitiveness Act of 1992, 47 U.S.C. ss 534-535 (Supp. IV 1992). The Act also bars cable operators from retransmitting the programming of any commercial broadcast station without the station's permission. See id. FN14. The Modified Final Judgment entered in United States v. American Tel. & Tel. Co., 552 F.Supp. 131, 226-27 (D.D.C.1982), aff'd sub nom. Maryland v. United States, 460 U.S. 1001 (1983), resulted in AT & T's divestiture of the seven regional Bell operating companies, which operate most of the nation's local phone networks. FN15. See 47 U.S.C. s 153(h) (1988). FN16. See 47 C.F.R. s 21.2 (1992). FN17. FCC v. Midwest Video Corp., 440 U.S. 689, 701 (1979) (footnote omitted). FN18. See MICHAEL K. KELLOGG, JOHN THORNE & PETER W. HUBER, FEDERAL TELECOMMUNICATIONS LAW 20-22 (1992). FN19. For example, Integrated Services Data Network (I.S.D.N.) enhances the capabilities of copper wire and allows telcos to send video of a higher quality while simultaneously routing phone calls. See James Gleick, The Telephone Transformed--Into Almost Everything, N.Y. TIMES, May 16, 1993, s 6 (Magazine), at 26, 54. FN20. See John Markoff, Building the Electronic Superhighway, N.Y. TIMES, Jan. 24, 1993, s 3, at 1, 6. FN21. See William Grimes, Computer as a Cultural Tool: Chatter Mounts on Every Topic, N.Y. TIMES, Dec. 1, 1992, at C13. FN22. See Anthony Ramirez, A War Within a Single Wire, N.Y. TIMES, Oct. 27, 1993, at D1. FN23. See John Markoff, Here Comes the Fiber-Optic Home, N.Y. TIMES, Nov. 5, 1989, s 3, at 1. FN24. Broadband technology explodes the communications spectrum by vastly increasing the quantity of data and the speed at which it can be sent. On the technological characteristics of broadband communications networks, see generally Robert Mercer, The Technology of Broadband Networks, 87, 87-99, in INTEGRATED BROADBAND NETWORKS (Martin Elton et al. eds., 1991). FN25. Cable companies would have to invest an estimated $26 billion to upgrade their lines to the capacity required for the information superhighway, and telcos might require a staggering $276 billion. See Anthony Ramirez, Head Start on Data Superhighway, N.Y. TIMES, Sep. 8, 1993, at D1, D13. But see George Gilder, Into the Telecosm, HARV.BUS.REV., Mar.-Apr. 1991, at 150, 156- 57 (contending that rewiring costs will not be so high). FN26. See 47 U.S.C. s 543 (Supp. IV 1992). The practical effect of these regulations, however, has been heavily debated. See Edmund L. Andrews, Enforcement Problems May Help Cable Systems Sidestep Rate Rules, N.Y. TIMES, Nov. 11, 1993, at A1. FN27. See Anthony Ramirez, Cable and Phone Companies: Foes or Allies?, N.Y. TIMES, Aug. 26, 1993, at D1. For example, US West and Time Warner plan to collaborate on an interactive television network experiment. See Geraldine Fabrikant, Merger Talks Halt on $33 Billion Deal in Communications, N.Y. TIMES, Feb. 24, 1994, at A1, D6. FN28. See, e.g., 47 U.S.C. s 533(a) (1988 & Supp. IV 1992) (prohibiting any entity from owning a television station and a cable system that serve the same market); 47 C.F.R. s 63.54 (1992) (prohibiting telcos from owning cable systems within their service areas). FN29. See Edmund L. Andrews, Policy Blueprint Ready for Data Superhighway, N.Y. TIMES, Sep. 15, 1993, at D7. FN30. 47 U.S.C. s 533(b) (1988). The ban on telco provision of video programming may soon be removed. The recent district court decision in Chesapeake & Potomac Tel. Co. v. United States, 830 F.Supp. 909 (E.D.Va.1993), appeal docketed, No. 93-2340 (4th Cir. Oct. 15, 1993) overturned this provision of the 1984 Cable Act on First Amendment grounds. See id. at 932. In addition, legislation currently pending in the House would lift the ban that prevents telcos from providing "video programming." See H.R. 1504, 103d Cong., 1st Sess. (1993); see also Daniel Pearl, Gore Says Telecommunications Laws Need Easing, but 'Safety Net' to Stay, WALL ST.J., Dec. 22, 1993, at B6 (noting the Clinton Administration's support for the legislation). FN31. See Telephone Company-Cable Television Cross-Ownership Rules, 7 F.C.C.R. 5781, 5847 (proposed July 16, 1992). FN32. See Pearl, supra note 30, at B6. FN33. See Bill Carter, Gore Outlines Data Highway Policy, N.Y. TIMES, Jan. 12, 1994, at D5. For a description of some of the Administration's other general goals, see, for example, CLINTON TECHNOLOGY REPORT 42-43 (1993). FN34. Thus, commercial speech, obscenity, non-obscene child pornography, and defamatory speech all receive lesser (or no) First Amendment protection because of their content, regardless of the media through which they are communicated. See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 930 (2d ed. 1988). FN35. See id. at 1003. FN36. For instance, regulation of the electronic media's speech has often been justified out of concern over the media's natural monopoly characteristics and the concentration of control of media outlets in one or a few hands. See, e.g., FCC v. National Citizens Comm. for Broadcasting, 436 U.S. 775, 795 (1978). Although arguments based on the economics of the telecommunications market are beyond the scope of this Note, they will be addressed insofar as they relate to the First Amendment interest in viewpoint diversity. See infra pp. 1071, 1076. FN37. In the well-known words of Justice Holmes, "the ultimate good desired is better reached by free trade in ideas [and] the best test of truth is the power of the thought to get itself accepted in the competition of the market." Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting). FN38. Id. FN39. Frederick Schauer, Hudgens v. NLRB and the Problem of State Action in First Amendment Adjudication, 61 MINN.L.REV. 433, 449 (1977). But cf. PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 85-88 (1980) (finding constitutional a state statute that forces the owner of a private shopping mall to permit individuals to exercise their free speech rights on the shopping mall's property). FN40. See Buckley v. Valeo, 424 U.S. 1, 54 (1976). FN41. See Stanley Ingber, The Marketplace of Ideas: A Legitimizing Myth, 1984 DUKE L.J. I, 38 ("Restriction of entry [into the business of mass communications] to the economically advantaged quells voices today that might have been heard in the time of the town meeting and the pamphleteer." (footnotes omitted)). FN42. See Buckley, 424 U.S. at 48-49 (stating that government may not "restrict the speech of some elements of our society in order to enhance the relative voice of others"). FN43. See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 247-58 (1974) (holding that Florida's "right of reply" statute, which guaranteed political candidates space to respond to criticism in newspapers, violated the First Amendment). FN44. Id. at 258. FN45. See id. at 256-57. FN46. See id. FN47. See Pacific Gas & Elec. Co. v. Public Utilities Comm'n, 475 U.S. I, 10- 17 (1986). But cf. PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 87 (1980) (stating that forced association with disagreeable speech is less problematic if the owner can "disclaim any sponsorship of the message"). FN48. See City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 772 (1988) (striking down a city newsrack ordinance that gave the mayor unlimited discretion to deny permits for placement of newsracks on city property). FN49. Communications Act of 1934, 47 U.S.C. s 309(a) (1988). FN50. See Miami Herald, 418 U.S. at 258. FN51. See FCC v. Midwest Video Corp., 440 U.S. 689, 701 (1979). FN52. 319 U.S. 190 (1943). FN53. Id. at 213. FN54. See id. at 215-17. FN55. See Children's Television Act of 1990, 47 U.S.C. s 303a (Supp. II 1990). FN56. See 18 U.S.C. s 1464 (1988). FN57. 395 U.S. 367 (1969). FN58. See id. at 378, 390-91. In particular, the Court upheld two component rules of the fairness doctrine that required broadcasters to air replies to personal attacks and political editorials as a means of ensuring fair coverage. See 47 C.F.R. ss 73.1920, 73.1930 (1992). FN59. For examples of this criticism, see MATTHEW L. SPITZER, SEVEN DIRTY WORDS AND SIX OTHER STORIES 7-42 (1986); Donald E. Lively, Modern Media and the First Amendment: Rediscovering Freedom of the Press, 67 WASH.L.REV. 599, 601-04 (1992). FN60. See Telecommunications Research & Action Ctr. v. FCC, 801 F.2d 501, 508 (D.C.Cir.1986) ("All economic goods are scarce, not least the newsprint, ink, delivery trucks, computers, and other resources that go into the production and dissemination of print journalism."), cert. denied, 482 U.S. 919 (1987). Indeed, some commentators have argued that it is the broadcasting regulatory system itself that creates the characteristics upon which reduced First Amendment protection is premised. See Ronald H. Coase, The Federal Communications Commission, 2 J.L. & ECON. I, 14-17 (1959) (arguing that broadcast licensing is only necessary because the government gives frequencies away instead of selling them). FN61. See, e.g., Preferred Communications, Inc. v. City of Los Angeles, 754 F.2d 1396, 1404 (9th Cir.1985), aff'd, 476 U.S. 488 (1986). FN62. Laurence H. Winer, The Signal Cable Sends--Part I: Why Can't Cable be More Like Broadcasting?, 46 MD.L.REV. 212, 215 (1987). FN63. See Inquiry into Section 73.1910 of the Commission's Rules and Regulations Concerning the General Fairness Obligations of Broadcast Licensees, 102 F.C.C.2d 142, 147-53 (1985). FN64. Video programming is also provided by a host of other video services, such as direct broadcast satellites, Satellite Master Antenna Television Service, and Multichannel Multipoint Distribution Service. See DANIEL L. BRENNER, MONROE E. PRICE & MICHAEL I. MEYERSON, CABLE TELEVISION AND OTHER NON-BROADCAST VIDEO, ss 13-I to 16-37 (1986 & Supp.1993). FN65. See Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 566-68 (1990) (stating that frequency scarcity justifies regulatory efforts-- including racially preferential licensing policies--to promote diversity). FN66. In FCC v. League of Women Voters, 468 U.S. 364 (1984), the Court noted that "[t]he prevailing rationale for broadcast regulation based on spectrum scarcity has come under increasing criticism...." Id. at 376 n. II. However, the Court also stated that it was "not prepared ... to reconsider [its] longstanding approach without some signal from Congress or the FCC that technological developments have advanced so far that some revision of the system of broadcast regulation may be required." Id. at 377 n. II. FN67. See Syracuse Peace Council v. FCC, 867 F.2d 654, 659 (D.C.Cir.1989), cert. denied, 493 U.S. 1019 (1990). Despite abandoning the fairness doctrine, the FCC did not specifically address some of its component regulations, such as those that govern access for replies to personal attacks, see 47 C.F.R. s 73.1920 (1992), and political editorials, see 47 C.F.R. s 73.1930 (1992). Legislation currently pending in Congress would resurrect the fairness doctrine. See Fairness in Broadcasting Act of 1993, H.R. 1985, 103d Cong., 1st Sess. (1993). Passage of the Act would force the courts to decide whether changes since Red Lion have rendered the doctrine unconstitutional. FN68. Some commentators have in fact made this leap. See, e.g., Jonathan W. Emord, The First Amendment Invalidity of FCC Ownership Regulations, 38 CATH.U.L.REV. 401, 449 (1989). FN69. See, e.g., Metro Broadcasting, 497 U.S. at 566-68; Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969). FN70. The concern with viewpoint scarcity is apparent in other areas of First Amendment jurisprudence as well. See, e.g., Schneider v. New Jersey, 308 U.S. 147, 160-65 (1939) (striking down a ban on leafletting in part because leafletting is one of few available methods for expressing marginal points of view). FN71. See Red Lion, 395 U.S. at 390. FN72. 412 U.S. 94 (1973). FN73. See id. at 114-21. FN74. See id. at 112-13, 125. FN75. But see SPITZER, supra note 59, at 57 (arguing that in practice the fairness doctrine served to chill the types of speech that triggered duties to provide response time). FN76. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969); see also CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH 49 (1993) (arguing that Red Lion's vision of the First Amendment is based on the need to ensure a "broad diversity of views"). FN77. See FCC v. National Citizens Comm. for Broadcasting, 436 U.S. 775, 794-95 (1978). FN78. See id. at 786. Diversity of ownership also promotes public economic interests in terms of antitrust policy, but for First Amendment purposes, the link to diversity of viewpoints is the central policy concern. FN79. The frequency scarcity rationale itself has been rejected for cable television. See Home Box Office, Inc. v. FCC, 567 F.2d 9, 44-45 (D.C.Cir.), cert. denied, 434 U.S. 829 (1977). However, cable has still been subjected to access requirements. See supra p. 1065. FN80. See Preferred Communications, Inc. v. City of Los Angeles, 754 F.2d 1396, 1404-05 (9th Cir.1985), aff'd, 476 U.S. 488 (1986). FN81. Less than 1% of cable operators face competition from other operators. See Must-Carry: Hearings Before the Subcomm. on Communications of the Senate Comm. on Commerce, Science, and Transportation, 101st Cong., 1st Sess. 40 (1989). But see Thomas W. Hazlett, Private Monopoly and the Public Interest: An Economic Analysis of the Cable Television Franchise, 134 U.PA.L.REV. 1335, 1364-75 (1986) (questioning whether cable is a natural monopoly). FN82. See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 251-58 (1974) (acknowledging that economic conditions make entry into newspaper markets difficult but rejecting this argument as irrelevant for First Amendment purposes). But cf. Andrew A. Bernstein, Note, Access to Cable, Natural Monopoly, and the First Amendment, 86 COLUM.L.REV. 1663, 1678-79 (1986) (arguing that the type of natural monopoly in cable differs sufficiently from that in print media to justify regulation for cable). FN83. See Berkshire Cablevision, Inc. v. Burke, 571 F.Supp. 976, 985-87 (D.R.I.1983), vacated, 773 F.2d 382 (1st Cir.1985); see also Community Communications Co. v. City of Boulder, 660 F.2d 1370, 1375-80 (10th Cir.1981) (arguing that the nature of cable broadcasting necessarily subjects it to less stringent First Amendment requirements), cert. denied, 456 U.S. 1001 (1982). Other lower courts have acted on the assumption that Miami Herald forecloses using scarcity to justify regulation. See, e.g., Preferred Communications, 754 F.2d at 1404-05. FN84. Jerome A. Barron, Access to the Press--A New First Amendment Right, 80 HARV.L.REV. 1641, 1647 (1967). FN85. See SUNSTEIN, supra note 76, at xvi-xx; cf. Associated Press v. United States, 326 U.S. 1, 20 (1944) (noting "that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public"). FN86. As Justice Harlan put it: "[O]ne man's vulgarity is another's lyric." Cohen v. California, 403 U.S. 15, 25 (1971). FN87. Privacy rights in this sense have been seen as a negative implication of the First Amendment and have been referred to as a right not to listen or a right not to know. See TRIBE, supra note 34, at 944-55. However, privacy in this context is also related to those rights that generally arise out of the common law of torts, see RESTATEMENT (SECOND) OF TORTS ss 652A, 652B (1977) (describing the tort of unreasonable intrusion upon the seclusion of another), as well as many state and federal statutes covering such issues as eavesdropping, wiretapping, and unsolicited phone calls, see, e.g., 47 U.S.C. s 223(a) (1988) (prohibiting the making of obscene or harassing phone calls in interstate or foreign communications). FN88. See Cohen, 403 U.S. at 21. FN89. See Lehman v. Shaker Heights, 418 U.S. 298, 304 (1974) (plurality opinion) (upholding municipal policy that barred the display of political advertisements in the city transit system within which commuters are a "captive audience"). FN90. See Rowan v. United States Post Office Dep't, 397 U.S. 728, 738 (1970) (upholding a statute that allowed individuals to require a mailer to remove an individual's name from a mailing list and to stop all mailings of erotic materials to the individual); Kovacs v. Cooper, 336 U.S. 77, 86-87 (1949) (upholding a conviction for noise disturbance from a sound truck on the grounds that "[i]n his home or on the street [the individual] is practically helpless to escape this interference with his privacy by loud speakers except through the protection of the municipality"). FN91. See Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 75 (1983). FN92. 438 U.S. 726 (1978). FN93. See id. at 729-30, 750-51. In so holding, the Court afforded broadcasters significantly less First Amendment protection than other speakers: "indecent" speech includes vulgar or tasteless speech, categories that generally fall outside of the definition of "obscene" speech under the Court's test in Miller v. California, 413 U.S. 15, 24-26 (1973). FN94. Pacifica, 438 U.S. at 748. FN95. Id. FN96. Id. at 758-59 (Powell, J., concurring in part and concurring in the judgment). FN97. See id. at 765-66 (Brennan, J., dissenting). FN98. In a society in which families spend an average of 7.5 hours per day in front of the television set, however, this expectation may be unrealistic. See Susan Antilla, Bringing Up a TV Wise Child, N.Y. TIMES, Jan. 10, 1993, s 4A, at 34. FN99. Cf. Butler v. Michigan, 352 U.S. 380, 381-84 (1957) (reversing a conviction under a statute that banned the sale of books with obscene language "tending to the corruption of the morals of youth" on the ground that the statute "reduce[d] the adult population ... to reading only what is fit for the children"). FN100. See Laurence H. Winer, The Signal Cable Sends, Part II--Interference from the Indecency Cases?, 55 FORDHAM L.REV. 459, 522 (1987). Of course, in some instances, such as ratings for movies or warnings on record albums, government regulation may actually assist parents in fulfilling this role. FN101. See Pacifica, 438 U.S. at 748-50. FN102. See New York v. Ferber, 458 U.S. 747, 757 (1982). FN103. See Action for Children's Television v. FCC, 11 F.3d 170, 181-82 (1993) (striking down the FCC's order banning the broadcasting of "indecent" material from 6 a.m. to midnight), reh'g granted, No. 93-1092, 1994 WL 50415, (D.C.Cir. Feb. 16, 1994). FN104. See Edmund L. Andrews, Cable Industry Endorses Ratings and Devices to Lock out Violence, N.Y. TIMES, Jan. 22, 1994, at A1, B45. FN105. See Cruz v. Ferre, 755 F.2d 1415, 1420 (11th Cir.1985) (noting that "[c]ablevision ... does not 'intrude' into the home"). But cf. Omega Satellite Prods. Co. v. City of Indianapolis, 694 F.2d 119, 128 (7th Cir.1982) (noting that "the universal access to the home that television enjoys and a resulting need to protect children ... is independent of whether the television signal comes into the home over the air or through a coaxial cable" (citation omitted)). FN106. See Chesapeake & Potomac Tel. Co. v. United States, 830 F.Supp. 909, 919 (E.D.Va.1993), appeal docketed, No. 93-2340 (4th Cir. Oct. 15, 1993). FN107. 492 U.S. 115 (1989). FN108. Id. at 127-28 (emphasis added). FN109. Id. at 128. FN110. Cf. KELLOGG, THORNE & HUBER, supra note 18, at 795-98 (arguing that the linchpin of privacy issues and the First Amendment in the context of telephones is "consent"). FN111. Martin v. City of Struthers, 319 U.S. 141, 148 (1943). FN112. See Miller, supra note 4, at 1153-54. FN113. See, e.g., Mark S. Nadel, Rings of Privacy: Unsolicited Telephone Calls and the Right of Privacy, 4 YALE J. ON REG. 99, 99-100 (1986). FN114. Nearly every state has a statute barring telephone harassment in the form of obscene, anonymous, repeated, or nonconsensual calls. The Communications Act of 1934, 47 U.S.C. s 223(a) (1988), also bars such calls in interstate or foreign communications. In addition, the Telephone Consumer Protection Act of 1991, 47 U.S.C. s 227(b), bars automatically dialed or prerecorded telephone calls. FN115. Broadcasters, because they control only one channel, have strong incentives to provide programming that appeals to the broadest segment of the viewing public and, consequently, attracts the most advertising dollars. As a result, broadcast programming ignores the unique tastes of individuals. It often avoids controversial issues that may alienate viewers and public affairs programming that may bore them. FN116. See Winer, supra note 62, at 252. FN117. See Allen S. Hammond, IV, Regulating Broadband Communications Networks, 9 YALE J. ON REG. 181, 228-29 (1992). FN118. See id. at 190-91 ("Consumers within a particular group, class, race, industry or religious sect can have their own programs, mini networks, and data bases specifically designed to meet their needs, beliefs, and interests."). FN119. Compare Mutual Film Corp. v. Industrial Comm'n, 236 U.S. 230, 244 (1915) (stating that motion pictures "[are] not to be regarded ... as part of the press of the country") with United States v. Paramount Pictures, Inc., 334 U.S. 131, 166 (1948) (observing that "moving pictures ... are included in the press whose freedom is guaranteed by the First Amendment"). FN120. Most recently, in Turner Broadcasting Sys., Inc. v. FCC, 819 F.Supp. 32 (D.D.C.), prob. juris. noted, 114 S.Ct. 38 (1993), the district court, in considering the constitutionality of the must-carry provisions of the 1992 Cable Act, see supra note 13, held that "the must-carry provisions are essentially economic regulation designed to create competitive balance in the video industry as a whole." Id. at 40. The court went on to uphold the provisions under the First Amendment using the O'Brien test as well. See id. at 45-47. FN121. POOL, supra note 8, at 7. FN122. Cf. Katz v. United States, 389 U.S. 347, 351 (1967) (announcing that "the Fourth Amendment protects people, not places"). FN123. These three classes will not always be distinct from one another. Just as the information superhighway will break down the distinctions among types of media, it will also break down the distinct roles that speakers currently occupy. Network owners may also be service providers; users may also be programmers. FN124. See supra p. 1071. FN125. This assumes that a policy of universal access is not in place. See infra Part IV.B.1. Even with universal access, some editorial discretion may be necessary. See infra p. 1091. FN126. Cf. Turner Broadcasting Sys., Inc. v. FCC, 819 F.Supp. 32, 61 (D.D.C.), prob. juris. noted, 114 S.Ct. 38 (1993) (Williams, J., dissenting) (stating that "must-carry rules ... replace the mix chosen by cablecasters ... with a mix derived from congressional dictate"). FN127. An operator's right to speak, on the other hand, may well be stronger on the information superhighway than with the current media. See infra p. 1097. FN128. The F.C.C. has fined the company that employs Howard Stern, a radio talk show host infamous for his scatological humor, a total of $1.2 million for Stern's indecent speech. See Edmund L. Andrews, F.C.C. Officials See Hurdles in Curbing Stern's Employer, N.Y. TIMES, Jan. 7, 1994, at D1. FN129. See Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 564 (1980). FN130. The Court currently appears to look to the proposal of a commercial transaction as " 'the test' for identifying commercial speech." Board of Trustees v. Fox, 492 U.S. 469, 473-74 (1989). FN131. Other changes in the economy are likely to put added pressure on the distinction between speech and economic transactions. In particular, the growing importance of information as a commodity that is bought and sold may raise First Amendment concerns in the context of economic transactions. FN132. Although home shopping channels exist today, the degree of intermingling of commercial speech and activity is considerably different. These channels in effect advertise the product and allow the consumer to buy almost immediately. The transaction itself, however, occurs through another medium--the telephone. This provides at least an initial dividing line between the commercial speech and the actual transaction. FN133. See Charles Fried, Constitutional Doctrine, 107 HARV.L.REV. 1140, 1154 (1994) ("In recent years, it has become evident that information is becoming one of the most important items of commerce (or more broadly, of production, exchange, and consumption), so that constitutional protection for liberty of expression and information may be the route by which once again the Constitution is invoked to protect broad lines of economic activity from government regulation."). On the other hand, given that the Court already provides only limited protection to commercial speech, it could decide simply to remove commercial speech from the ambit of the First Amendment. FN134. See Sable Communications, Inc. v. FCC, 492 U.S. 115, 126 (1989). FN135. Cf. Carlin Communications, Inc. v. Mountain States Tel. & Tel. Co., 827 F.2d 1291, 1294 (9th Cir.1987) ("Once the telephone company becomes a medium for public rather than private communication, the fit of traditional common carrier law becomes much less snug."), cert. denied, 485 U.S. 1029 (1988). FN136. See supra p. 1077. FN137. FCC v. Pacifica Found., 438 U.S. 726, 765 (1978) (Brennan, J., dissenting). FN138. Cf. JOSHUA MEYROWITZ, NO SENSE OF PLACE: THE IMPACT OF ELECTRONIC MEDIA ON SOCIAL BEHAVIOR 115-25 (1985) (describing how existing electronic media decrease the importance of physical space for discourse). FN139. "Cyberspace" is a term that has entered the popular lexicon to refer to the invisible, dimensionless space in which electronic communication takes place. See Edward J. Naughton, Is Cyberspace a Public Forum? Computer Bulletin Boards, Free Speech, and State Action, 81 GEO.L.J. 409, 409 n92). FN140. Of course, viewers may still be able to obtain the speech via a different medium, such as a videotape. FN141. Although a number of companies are positioning themselves to create information highways, ultimately only one network owner may serve each household. As with cable television, a household will not need more than one point of access. See Angela J. Campbell, Publish or Carriage: Approaches to Analyzing the First Amendment Rights of Telephone Companies, 70 N.C.L.REV. 1071, 1083 (1992). FN142. A fourth type of regulation involves the standard of liability applicable to speakers and network operators for obscene and defamatory messages. See, e.g., Cubby, Inc. v. CompuServe Inc., 776 F.Supp. 135, 139- 41 (S.D.N.Y.1991) (holding that computer bulletin board operators, like secondary distributors, may not be held liable for users' defamatory statements unless they have "actual knowledge" of their content). See generally Henry H. Perritt, Jr., Tort Liability, the First Amendment, and Equal Access to Electronic Networks, 5 HARV.J.L. & TECH. 65, 95-108 (1992) (discussing tort liability principles, with particular reference to defamation liability, as applied to electronic networks). Such regulations are not discussed in this Note. FN143. Cf. Angela J. Campbell, Political Campaigning in the Information Age, 38 VILL.L.REV. 517, 552-53 (1993) (arguing that denial of access to political candidates will generally be less frequent for on-line computer services than for broadcasting, because on-line services can always add capacity). FN144. Access for any viewpoint does not guarantee that free-ranging discourse about public affairs will flourish on the information superhighway. Important issues will never make it onto the electronic medium if nobody bothers to bring them up. See SUNSTEIN, supra note 76, at 68-69 (arguing that the "dazzling array of options made available by modern technology" does not eliminate the problem that information about public affairs has some of the characteristics of a public good, which, like the provision of a national defense, presents a free rider problem). FN145. See supra p. 1069. FN146. This section explores access issues in relation to whether network operators may prevent individuals or entities who want to get on the information superhighway from doing so. But, as a practical matter, access is also affected by complexity; information is less accessible to the extent that the qualities of the medium make it difficult to retrieve and understand. See Ethan Katsh, Law in a Digital World: Computer Networks and Cyberspace, 38 VILL.L.REV. 403, 450 (1993). Even if all people have cables running to their homes so they can get on the information superhighway, they may not have the education to make use of it. As a policy matter, assuring effective access will require not only regulation to protect the right to use the information superhighway, but also greater investment in areas such as education. FN147. Such problems are already evident in proposed transactions in the communications industry. For example, consider Tele-Communications, Inc. (TCI), which owns a share of CNN, the all-news station. See Peter Passell, A Satisfactory Marriage, N.Y. TIMES, Nov. 9, 1993, at D1, D14. Had TCI merged with Bell Atlantic to exploit the potential of the information superhighway, see Fabrikant, supra note 27, at A1 (announcing the companies' decision to discontinue merger plans), the resulting service provider would have had a financial incentive to exclude other programmers who wished to offer a similar twenty-four-hour news service. The government could deal with this particular problem in ways other than imposing access regulations. Structural and ownership bans such as preventing the network owner from carrying its own programming might remove an incentive to deny access. In fact, the government has used just this reasoning to justify cross-ownership restrictions for both cable and video dialtone. See Campbell, supra note 141, at 1079-80. Alternatively, the government might use antitrust laws regarding vertical integration to help assure access. Such regulations, however, would not eliminate other reasons for denying access. The network owner might strongly disapprove of the message of a particular group and refuse access on that basis. The threat of adverse consumer reactions to particular speakers might coerce the owner into denying access, particularly if the owner has interests in other businesses that consumers might easily boycott. FN148. 114 S.Ct. 38 (1993) (noting probable jurisdiction). FN149. See Turner Broadcasting Sys., Inc. v. FCC, 819 F.Supp. 32, 40 (D.D.C.), prob. juris. noted, 114 S.Ct. 38 (1993). FN150. See id. at 38. FN151. See id. at 58 (Williams, J., dissenting). FN152. Cf. Campbell, supra note 141, at 1100 (noting that, unlike cable must- carry rules, the telephone companies' common carrier obligation to carry for all persons is not subject to attack as content-based regulation). FN153. 395 U.S. 367 (1969). FN154. See id. at 388. FN155. See Turner Broadcasting, 819 F.Supp. at 38. FN156. See 47 U.S.C. s 202(a) (1988). Current regulations of telephone companies include not only a prohibition against discrimination but also an affirmative duty to provide "universal service" at reasonable prices to all. See supra p. 1066. Such a policy may be more desirable on the information superhighway. If this medium becomes the primary means of public communication, as well as an important medium for commercial transactions, the absence of some form of universal service policy may well create a gaping inequality between information "haves" and "have-nots." FN157. See supra pp. 1084-85. FN158. Frontier Broadcasting Co., 24 F.C.C. 251, 254 (1958) (emphasis added) (rejecting a petition to exercise common-carrier jurisdiction over cable television). FN159. Cf. FCC v. Midwest Video Corp., 440 U.S. 689, 700-02 (1979) (holding that public access requirements for cable television systems imposed common carrier obligations because they deprived the operator of any control over the content transmitted and the identity of users). FN160. See Campbell, supra note 141, at 1138. Of course, the information superhighway owner could voluntarily agree to be treated as a common carrier in exchange for certain benefits, such as a monopoly license. FN161. See id. at 1128-31. FN162. See supra p. 1070. FN163. 447 U.S. 74 (1980). FN164. See id. at 88. FN165. See id. at 87. FN166. But cf. Carlin Communications, Inc. v. Mountain States Tel. & Tel., 827 F.2d 1291, 1293-95 (9th Cir.1987) (upholding phone company's refusal to carry dial-a-porn messages as an exercise of "business discretion" related to public pressure on the phone company), cert. denied, 485 U.S. 1029 (1988). FN167. 418 U.S. 241 (1974). FN168. Id. at 258. FN169. See id. at 256-57. FN170. 424 U.S. 507 (1976). FN171. See id. at 517-21. FN172. See supra pp. 1068-69. FN173. See, e.g., Marsh v. Alabama, 326 U.S. 501, 502 (1946) (holding that a company that owns a town is a state actor); Evans v. Newton, 382 U.S. 296, 297 (1966) (finding that the operator of a public park is a state actor). However, the action of a private company can only be attributed to the state if it exercises powers traditionally reserved exclusively to the government. See Jackson v. Metropolitan Edison Co., 419 U.S. 345, 353 (1974) (rejecting the contention that a licensed, monopolistic public utility was a state actor due to its function). Given that the current provision of communication services is largely the province of private actors, courts are unlikely to find that the information superhighway satisfies the public function test. FN174. See, e.g., Burton v. Wilmington Parking Authority, 365 U.S. 715, 721- 26 (1961) (finding that a private restauranteur and a municipal parking authority were so entangled and interdependent that the restaurant owner's decision not to serve blacks was attributable to the state). Whether such entanglement will exist between the government and an information superhighway operator is as yet uncertain, but evidently the threshold to find state action is high. See, e.g., Columbia Broadcasting Sys., Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 115-19 (1973) (holding that licensing of broadcasting stations did not entail state action). Moreover, subsequent cases appear to suggest that the government must be involved in the specific decisions being challenged. See TRIBE, supra note 34, at 1716. That is, a particular party denied access would have to show some government responsibility for the operator's decision to deny that party access. Presumably, most who are denied access will be unable to make that showing. FN175. "Public space" here is not meant to be synonymous with public forum. "Public space" merely refers to space in which the public is relatively free to move about and interact, such as the courthouse in Cohen v. California, 403 U.S. 15 (1971). In order to be a public forum, public space must also have been traditionally open to all for expressive activities. See Naughton, supra note 139, at 419-28. FN176. See supra p. 1077. FN177. See supra pp. 1087-88. FN178. However, government regulation analogous to "truth-in-labelling" requirements may still be required to ensure that users have adequate and accurate information about programming and services. FN179. 394 U.S. 557 (1969). FN180. See id. at 564-66. FN181. However, other concerns, such as the harm to children who are photographed for child pornography, see New York v. Ferber, 458 U.S. 747, 757 (1982), will remain, or even become more serious, see Despite U.S. Campaign, a Boom in Pornography, N.Y. TIMES, July 4, 1993, s 1, at 20 (noting the difficulty of apprehending child pornographers who are using computer networks as a means of distribution). FN182. See supra note 90. FN183. See M. ETHAN KATSH, THE ELECTRONIC MEDIA AND THE TRANSFORMATION OF LAW 115 (1989). This observation also holds true for ex post liabilities, such as private tort actions for libel and slander, if it is difficult to trace the origin of the offending speech. FN184. See 47 C.F.R. s 63.54 (1992). FN185. See United States v. American Tel. & Tel. Co., 552 F.Supp. 131, 180- 86 (D.D.C. 1982), aff'd sub nom. Maryland v. United States, 460 U.S. 1001 (1983). FN186. See supra note 147 and accompanying text. FN187. 830 F.Supp. 909 (E.D.Va.1993), appeal docketed, No. 93-2340 (4th Cir. Oct. 15, 1993). FN188. See id. at 931-32. FN189. 491 U.S. 781 (1989). The Ward test is a modification of the Court's intermediate scrutiny test announced in United States v. O'Brien, 391 U.S. 367, 377 (1968). It requires that a regulation be narrowly tailored to serve a significant government interest, and that it leave open ample alternative channels of communication. See Ward, 491 U.S. at 791. FN190. See Chesapeake & Potomac, 830 F.Supp. at 926. FN191. See id. at 926-32. FN192. One court, for example, found that a prohibition against AT & T entering electronic publishing actually served First Amendment interests. See United States v. American Tel. & Tel. Co., 552 F.Supp. 131, 180-86 (D.D.C. 1982), aff'd sub nom. Maryland v. United States, 460 U.S. 1001 (1983). Even this restriction, however, has since been lifted. See United States v. Western Elec. Co., 1989-2 Trade Cas. (CCH) P 68,673, at 61,542-43 (D.D.C. July 28, 1989). FN193. See Chesapeake & Potomac, 830 F.Supp. at 926; see also Henry H. Perritt, Jr., The Congress, the Courts, and Computer Based Communications Networks: Answering Questions About Access and Content Control, 38 VILL.L.REV. 319, 335 (1993) (stressing the importance of the availability of alternative channels for First Amendment analysis). FN194. See Campbell, supra note 141, at 1135-36. FN195. Id. at 1135.