Charting a new constitutional jurisprudence for the digital age

This article is part of a special Supreme Court issue of Engage, a journal published by the Federalist Society. It argues that communications law and policy would be much different today - and more suited to the now generally competitive and converging communications marketplace - if the Supreme Court's twentieth century jurisprudence had been different. While discussing the Court's acceptance of the Communications Act's ubiquitous "public interest" standard against nondelegation doctrine challenges, the article focuses more on the Court's leading First Amendment communications law cases, where jurisprudential change is more likely to come. The essay concludes: "With the revisiting of Red Lion, Pacifica, and Turner along the lines discussed above, the Court can establish a new First Amendment paradigm for the electronic media, one that, I would argue, is much more in keeping with the Founders' First Amendment vision. Perhaps it was predictable, maybe even likely, that the First Amendment's protections would be limited substantially during an analog age that tended towards a monopolistic or oligopolistic communications marketplace. But it should be considered predictable, and, yes, even likely, for the Court now to establish a new First Amendment jurisprudence befitting the media abundance of the digital age.".
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