Lost on the Infobahn Without a Map: The Need for a Coherent First Amendment Approach
In addition to triggering an avalanche of bad metaphors, the popularization of the expression electronic superhighwayl has perpetuated the typical confusion that arises in the First Amendment analysis of new communications technologies. Development of the "Infobahn" promises to bring about new broadband networks and a convergence of media, but it also is leading to a First Amendment identity crisis. Consider the following scenario:
A federal regulator walks into a room and and is confronted with five television sets, each displaying the same program. The show features a steamy sex scene between a man and a woman, complete with nudity, adult language, and lots of sweat. Although transparent to the viewer, each TV is fed via a different transmission source. The first television is receiving a terrestrial broadcast transmission, the second obtains the images by coaxial cable, the third is connected to a fiber optic common carrier network, the fourth is hooked to a VCR, and the fifth TV is receiving a direct broadcast sateIIite (DBS) feed. Leaving aside any questions of federal versus local jurisdiction, and assuming that the images are not ob scene, what is the regulator's constitutional authority to control these images?