Supreme Court Justice Oliver Wendell Holmes coined the term “marketplace of ideas” in his 1919 Abrams v. United States dissent. He compared freedom of information to the economic idea of the “free market,” in which the quality of a product determines consumer demand, and consumer demand determines price. Applying that logic to the freedom of expression, Holmes concluded that regulating speech is unnecessary, because consumers will be able to determine for themselves which ideas are well grounded and which are not. “[T]he ultimate good desired is better reached by free trade in ideas . . . . That, at any rate, is the theory of our Constitution,” Holmes wrote.
It was John Milton who first articulated this concept in 1644, when he declared that censorship had a detrimental effect on society. Members of Parliament had argued that licensing was necessary to stop false or heretical information from entering the public domain. Milton countered that licensing hindered learning and limited society’s ability to distinguish fact from fiction. It is preferable to allow heretical ideas into the marketplace, where society can evaluate them, than to risk censoring truthful information, Milton said.
Cable programmers and cable operators “engage in and transmit speech.” One of the purposes of the 1992 Cable Act was to prevent cable operators from acting as modern-day censors. Through the Cable Act, Congress sought to mitigate the harms that might flow from a cable operator’s “gatekeeper” or “bottleneck monopoly” status—that is, its ability to “control…most (if not all) of the television programming into the [cable] subscriber’s home” simply because it was the only programming provider in town.
Generally a cable company makes more money when it airs its own programming than when it purchases the rights to carry another company’s content. But if a cable operator has a local bottleneck monopoly, then denying program carriage denies the programmer the opportunity to speak. For that reason, federal law prohibits a cable operator from discriminating against unaffiliated programmers for financial reasons.
In December, the FCC and TCR Sports Broadcasting, d/b/a Mid-Atlantic Sports Network (“MASN”) will face off in the Fourth Circuit. MASN challenges an FCC order upholding Time Warner Cable’s decision not to carry Baltimore Orioles games in North Carolina. Time Warner maintains it chose not to carry the Orioles’ games on its least expensive tier in North Carolina, because the games were not of interest to a sufficient number of viewers in that area. The FCC upheld Time Warner’s decision. MASN sued.
I hate paying my cable bill each month, and it’s hard to imagine we’ve reached an era of truly effective competition in the multichannel video programming market. Nevertheless, I lived in North Carolina for 24 years and rarely heard anyone talking about the Orioles. Moreover, the latest statistics strongly suggest that satellite television is giving cable a run for its money. According to March 2011 data from NTIA, Comcast still leads the country with 22.7 million subscribers, but satellite provider DirecTV is close on its heels with 19.4 million subscribers. Dish Network is third with 14.2 million subscribers, and Verizon Fios and AT&T U-verse appear to be gaining market share.
Will the courts keep pace with these changes in the modern marketplace of ideas? Stay tuned.