Most First Amendment analyses of U.S. media policy have focused predominantly on “behavioral” regulation, which either prohibits the transmission of disfavored content (such as indecent programming) or mandates the dissemination of preferred content (such as children’s educational programming and political speech). In so doing, commentators have largely overlooked how program content is also affected by “structural” regulation, which focuses primarily on increasing the economic competitiveness of media industries. In this Article, Professor Christopher Yoo employs economic analysis to demonstrate how structural regulation can constitute a form of “architectural censorship” that has the unintended consequence of reducing the quantity, quality, and diversity of media content. The specific examples analyzed include (1) efforts to foster and preserve free television and radio, (2) rate regulation of cable television, (3) horizontal restrictions on the number of outlets one entity can own in a local market, and (4) regulations limiting vertical integration in television and radio. Unfortunately, current First Amendment doctrine effectively immunizes architectural censorship from meaningful constitutional scrutiny, and it appears unlikely that existing doctrine will change or that Congress or the Federal Communications Commission will step in to fill the void.

Ever since Mark Fowler’s 1982 article laid down the gauntlet to those who favor structural media regulation, legal academia has produced a host of free market acolytes advancing his views. These young academics increasingly dominate media law teaching and the FCC. Professor Christopher Yoo is one of this group’s best (as well as a personal friend). This short Comment on his article, Architectural Censorship and the FCC, is written not because I consider it uniquely objectionable, but rather because its fundamental errors and characteristic distortions are representative of this influential group of scholars. This Comment will start with observations about Yoo’s policy and economic analyses and then conclude with a critique of his desired constitutional regime.

Thirty-nine states use some form of popular elections to select judges in their appellate courts, general jurisdiction trial courts, or both. In June of 2002, the Supreme Court handed down its first ruling regarding judicial elections. A 5-4 majority in Republican Party of Minnesota v. White held that part of the Minnesota Code of Judicial Conduct was unconstitutional as violating the First Amendment of the U.S. Constitution. The specific clause at issue is known as the “announce clause” and states that “[a] candidate for a judicial office, including an incumbent judge,” shall not “announce his or her views on disputed legal or political issues.” In White, a judicial candidate alleged that he was forced to refrain from announcing his views on disputed issues during a campaign because of this provision, in violation of the First Amendment. A majority of the Supreme Court agreed and struck down Minnesota’s announce clause as unconstitutional.

Eldred v. Ashcroft, as decided by the Supreme Court in January 2003, added another chapter regarding the relationship between copyright law and freedom of speech to the judicial “chain novel” that has been in the writing for the past three decades. The Court affirmed the constitutionality of the Sonny Bono Copyright Term Extension Act of 1998 (“CTEA”), which extended the copyright term by twenty years, both for existing works and for new works. As in previous chapters, the Court reached the conclusion that there is no conflict between the two legal fields. It repeated the judicial sound bite that “the Framers intended copyright itself to be the engine of free expression.” Eldred nicely fits the conflict discourse, which is mostly one of denial. But Eldred also included novel and interesting elements that offer a new direction to the conflict discourse, or at least a potential for redirection.

Eldred raises many intriguing copyright law and constitutional law questions. Here, however, I wish to focus on the possible ramifications the case might have on the conflict discourse with respect to its constitutional level. Surprisingly, Eldred is the first facial constitutional challenge to copyright law in 213 years. As copyright law continues to expand into new territories and in unpredictable ways, and as new bills are introduced at a staggering rate to further the scope of the rights of copyright owners, it is crucial that we study the contours of copyright law. This need is especially acute in light of the Court’s comment that “[w]hen, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.”

The U.S. Constitution is unique even among democratic nations for the guarantees it grants to U.S. citizens. The interpretation of the Constitution further distinguishes American notions of freedom and liberty from every other country in the world. The Internet Age, however, has ushered in a period where national boundaries and guarantees are blurred among the many intersections of the World Wide Web. This uncertainty has raised serious questions relating to the fundamental rights and liberties established by our forefathers: Can the United States maintain its guarantee of freedom of speech for the Internet? Who profits from such a guarantee? What are the implications for other nations if the United States ignores their pleas to rein in such guarantees?