Document Type

Article

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Presented at the 5th Inter-University Graduate Student Conference at Cornell Law School, March 2009.

Abstract

Few areas of law raise the question as to the delimitation of the public vis-à-vis the private sphere as forcefully as broadcasting does. And few businesses display the dual nature inherent in nature radio and TV broadcasting: economic versus cultural good. In Continental Europe, until the 1980s, broadcasting was subject to State monopolies that ought to ensure media pluralism. Likewise, the U.S. Supreme Court, embracing a scarcity rationale, qualified the First Amendment in the realm of broadcasting primarily as a right of the listeners and viewers to receive a wide array of information and opinions. In Red Lion, the Court justified large-scale FCC regulation as enhancing rather than infringing the First Amendment right of free expression.

This poses the question as to the theory that underlies the protection of free speech. Is it an individual right that has been granted to everyone to its own benefit and emotional or commercial self-fulfillment, in short: a “right of selfishness?” Or is it rather a functional concept to the benefit of viewers and listeners, and, ultimately, in the service of democracy, aimed at upholding a functioning marketplace of ideas? A private right for the public benefit? My presentation will compare First Amendment jurisprudence in the U.S. and in Europe that have gone opposite ways, relying on case law of Supreme Courts in the U.S., in the EU member states, the European Court of Justice as well as the European Court of Human Rights. This shall elucidate the interrelations between personal liberty and the exigencies of democratic society in a field that genuinely affects the relationship between public and private spheres, and between economics and culture

Date of Authorship for this Version

April 2009

Keywords

Broadcasting, Freedom of speech

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