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31 U. Mich. J.L. Reform 817 (1997-1998)
The Electronic Media and the Flight from First Amendment Doctrine: Justice Breyer's New Balancing Approach

handle is hein.journals/umijlr31 and id is 829 raw text is: THE ELECTRONIC MEDIA AND THE FLIGHT FROM FIRST AMENDMENT DOCTRINE: JUSTICE BREYER'S NEW BALANCING APPROACH Jerome A. Barron* Contemporary First Amendment issues in cases involving the elec- tronic media transcend traditional conflicts between the government and the speaker. The speaker is not easy to identify. Listeners, pro- grammer and medium operators or distributors all have competing claims to First Amendment protection. To determine whose interests shall prevail, courts increasingly seek a methodology that accounts for these warring interests. Justice Breyer, along with Justice Souter and, in some respects, Justice Stevens, have been instrumental in re- viving balancing as a First Amendment approach in these situations. In two recent First Amendment cable television cases Turner Broad- casting System, Inc. v. FCC (Turner II) (1997), and Denver Area Educational Telecommunications Consortium, Inc. v. FCC (Denver Area) (1996), Justice Breyer has written influential opinions that use this new balancing test. Traditional balancing approaches focused on balancing the interest of government against the interest of the media owner. The new balancing casts a wider net and recognizes that, in the contemporary electronic media context, many speech interests seek access The new balancing analysis does not give primacy to one in- terest over another, but instead seeks to account for the multiplicity of interests and to weigh the relative strength of the competing access interests In short, the new balancing analysis highlights the entire gamut of interests in play. INTRODUCTION The advent of new media necessarily changes the meaning and applicability of the Free Speech and Free Press Clauses. The distribution and audience penetration characteristics of new media have complicated legal responses to problems such as access, indecency, and obscenity. Contemporary First * Lyle T. Alverson Professor of Law, George Washington University Law School; B.A. 1955, Tufts University; J.D. 1958, Yale University Law School; LL.M. 1960, George Washington University Law School. I would like to thank David Barron for his comments on this manuscript and Ryan Wallach for both his comments and his ex- cellent research assistance. Thanks also to Tom Dienes for his counsel on the public forum doctrine. 817

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