A memorandum prepared by the Committee for Democratic Communications, National Lawyers Guild
The emergence of the internet as a mass communications medium has profound implications for democratic discourse and First Amendment jurisprudence. This memorandum examines those implications and considers how existing frameworks for broadcast regulation do and do not translate to online communications.
American broadcast regulation has long been justified by the scarcity rationale — the argument accepted by the Supreme Court in Red Lion Broadcasting Co. v. FCC (1969) that the finite nature of the electromagnetic spectrum justifies licensing requirements that would be unconstitutional in print media.
The internet fundamentally undermines this rationale. Internet bandwidth is not subject to the same exclusivity constraints that characterize broadcast spectrum. One speaker's use of an address does not prevent others from communicating simultaneously. The Supreme Court recognized this in Reno v. ACLU (1997), holding that the internet should receive the highest level of First Amendment protection — the same protection as print, not the reduced protection applied to broadcast.
If the internet is to serve as a genuinely democratic communications medium, policy must ensure equitable access to the infrastructure that underlies it. Concentration of ownership in internet service provision and platform services raises structural questions analogous to those the CDC has raised about broadcast licensing.
The emergence of internet radio creates direct parallels with the broadcasting issues at the heart of the CDC's work. An internet broadcaster faces no spectrum scarcity but may face economic barriers and platform dependency that raise their own access concerns.
Community media organizations active in the microradio movement have increasingly moved to internet-based distribution. The same values that animated the fight for LPFM — local control, diverse voices, non-commercial community service — apply in the digital environment.
Legal advocates working at the intersection of communications law and digital rights must bring the lessons of the microradio era to bear on new questions involving platform governance and access to digital infrastructure.
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