The Electronic Media and the Flight from First Amendment Doctrine: Justice Breyer’s New Balancing Approach

Contemporary First Amendment issues in cases involving the electronic media transcend traditional conflicts between the government and the speaker. The speaker is not easy to identify. Listeners, programmer 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 reviving balancing as a First Amendment approach in these situations.

In two recent First Amendment cable television cases Turner Broadcasting 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 interest 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.