Bollinger, L.C. Jr. Freedom of the Press and Public Access: Toward a Theory of Partial Regulation of the Mass Media, 75 Mich. L. Rev. 1 (1976)

Abstract

In selecting my article, I pivoted at decision time from an article that was influential in my development as a scholar to one that has recently begun to strike me as particularly relevant to ongoing policy debates about social media platforms, despite falling a bit out of favor over the years. With that brief preface, I’ll begin my revisiting of Lee Bollinger’s 1976 article, and attempt to make the case that his defense of the regulatory distinctions that separate print and broadcast media in the United States may be useful in developing a regulatory framework for social media that is distinct from the rest of the Internet. Bollinger starts from the premise that there are both First Amendment benefits and costs associated with government intervention in the media sector. The benefits Bollinger focuses on are derived from the role that the government can play in ensuring “the widespread availability of opportunities for expression within the mass media.” Consequently, the partial regulatory system that emerged (with a regulated broadcast sector and unregulated print sector) is one that “captures the benefits of access regulation yet still minimizes its potential excesses.” Bollinger contends that, in upholding government intervention in the broadcast sector as constitutional, the Supreme Court of the United States “pursued the right path for the wrong reasons.” Specifically, the logic and rationality of this bifurcated regulatory framework did not have to be justified on the basis of any unique characteristics of broadcasting, such as spectrum scarcity (as it has been,