Cato Policy Analysis No. 270 March 19, 1997

Policy Analysis

Chilling The Internet?
Lessons from FCC Regulation of Radio Broadcasting

by Thomas W. Hazlett and David W. Sosa

Thomas W. Hazlett is a professor of agricultural and resource economics and director of the Program on Telecommunications Policy, University of California, Davis. David W. Sosa is a doctoral student in the Department of Agricultural and Resource Economics, University of California, Davis. This article originally appeared in the Michigan Telecommunications and Technology Law Review, an online journal, and is reprinted with permission.


Executive Summary

Congress included the Communications Decency Act in the Telecommunications Act, which was signed into law on February 8, 1996. The CDA sought to outlaw the use of computers and phone lines to transmit "indecent" material and provided jail terms and heavy fines for violators. Proponents of the act argue that it is necessary to protect minors from undesirable speech on the burgeoning Internet. The CDA was immediately challenged in court by the American Civil Liberties Union, and the special three-judge federal panel established to hear the case recently declared the act unconstitutional. Yet its ultimate adjudication remains in doubt.

Ominously, the federal government has long experimented with regulations designed to improve the content of "electronic" speech. For example, the Fairness Doctrine, imposed on radio and television stations until 1987, was an attempt to establish a standard of "fair" coverage of important public issues. The deregulation of content controls on AM and FM radio programming, first under the Carter Federal Communications Commission in early 1981 and then under the Reagan FCC (which abolished the Fairness Doctrine in 1987), led to profound changes in radio markets. Specifically, the volume of informational programming increased dramatically immediately after controls were ended--powerful evidence of the potential for regulation to have a "chilling effect" on free speech.

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