[**]Doctoral Student, Department of Agricultural & Resource Economics, University of California, Davis.

[1] CONG. REC. S1944, 1953 (1995) (statement of Sen. Exon).

[2]S. 652, 104th Cong., § 402(e)(1) (1995).

[3] CONG. REC. S8460, 8462 (1995).

[4]Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996) (codified as amended in scattered sections of 47 U.S.C.)

[5]See, e.g., Sable Communications of Cal, Inc. v. FCC, 492 U.S. 115, 126 (1989) (holding that "Sexual expression which is indecent but not obscene is protected by the First Amendment); and Carey v. Population Services Int'l, 431 U.S. 678, 701 (stating that "[W]here obscenity is not involved, we have consistently held that the fact that proteted speech may be offensive to some does not justify its suppression").

[6]Miller v. California, 413 U.S. 15, 34 (1973).

[7]Letter from Kent Markus, Acting Assistant Attorney General, to Senator Patrick Leahy, Democrat-Vermont (May 3, 1995) (on file with author).

[8]Steven Levy, No Place for Kids; a Parent's guide to Sex on the NetNO PLACE FOR KIDS?, NEWSWEEK, July 3, 1995, at 47.

[9]The Internet Freedom and Family Empowerment Act, H.R. 1978, 104th Cong., 1st Sess. (1995).

[10]Telecommunications Act of 1996 § 561, 47 U.S.C.A. § 223 (1997).

[11]ACLU v. Reno, 24 Media L. Rep. 1379 (E.D. Pa. 1996).

[12]ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996).

[13]See Letter from Markus to Leahy, supra note 7.

[14]Philip Elmer-Dewitt, On a Screen Near You: It's Popular, Pervasive and Surprisingly Perverse, According to the First Survey of Online EroticaON A SCREEN NEAR YOU, TIME, July 3, 1995, at 38. See: Elmer-DeWitt, Philip, "Fire Storm on the Computer Nets: A New Study of Cyberporn, Reprinted in a TIME Cover Story, Sparks Controversy," TIME, July 24, 1995, at p. 57; Hoffman, Donna L. and Thomas P. Novak, "A Detailed Critique of the TIME Article: 'On a Screen Near You: Cyberporn' (DeWitt, 3 July, 1995)," http://www2000.ogsm.vanderbilt.edu/dewitt.cgi ; Hoffman, Donna L. and Thomas P. Novak, "A Detailed Analysis of the Conceptual, Logical, and Methodological Flaws in the Article 'Marketing Pornography on the Information Superhighway,'" http://www2000.ogsm.vanderbilt.edu/novak/rimm.review.html .

[15]S. 714, 104th Cong., 1st Sess. (1995).

[16]See Letter from Markus to Leahy, supra note 7. Indeed, the DoJ recommended "that a comprehensive review be undertaken of current laws and law enforcement resources for prosecuting online obscenity and child pornography, and the technical means available to enable parents and users to control the commercial and non-commercial communications they receive over interactive telecommunications systems."

[17]See generally Ronald Coase, The Federal Communications CommissionTHE FEDERAL COMMUNICATIONS COMMISSION, 2 J. L. & ECON. 1 (1959).

[18]See generally Thomas W. Hazlett, The Rationality of U.S. Regulation of the Broadcast SpectrumTHE RATIONALITY OF U.S. REGULATION OF THE BROADCAST SPECTRUM, 33 J. L. & ECON. 133 (1990).

[19]See, e.g., Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969); Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994). See David L. Bazelon, FCC Regulation of the Telecommunications Press, 1975 DUKE L.J. 213 (1975) (compelling critiques of the state of the law); LUCAS POWE, AMERICAN BROADCASTING AND THE FIRST AMENDMENT (1987); and Robert Corn-RevereNEW AGE COMSTOCKERY: EXON VS THE INTERNET, 32 POL'Y ANALYSIS 1 (June 28, 1995)}.

[20]Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 393 (1969). Although the Supreme Court did not use the exact phrase "chilling effect," the Court concluded that, "[I]f experience with the administration of these doctrines indicates that they have the net effect of reducing rather than enhancing the volume and quality of coverage, there will be time enough to reconsider the constitutional implications." Id.

[21]Red Lion, 395 U.S. 367.

[22]Id., at 393.

[23]Reno, 24 Media L. Rep at 1379.

[24]FRED W. FRIENDLY, THE GOOD GUYS, THE BAD GUYS, AND THE FIRST AMENDMENT (1976).

[25]In the Matter of Inquiry into Section 73.1910 of the Commission's Rules and Regulations Concerning the General Fairness Doctrine Obligations of Broadcast Licensees, 102 F.C.C. 2d 142 (1985).

[26]It could be argued that this evidence suggests only that FCC broadcast content rules that "chill" speech, such as the Fairness Doctrine, should be illegal, not unconstitutional. We would be quick to point out that the ability of the courts to differentiate "chilling" content controls from innocuous ones is not sufficiently present to warrant such a conclusion.

[27]Richard Knox, Women go online to decry ban on 'breast,' WOMEN GO ONLINE TO DECRY BAN ON 'BREAST BOSTON GLOBE, December 1, 1995, at 12.

[28]Radio Act of 1927, 47 U.S.C. § 81 (1996) (original version at 44 Stat. 1162).

[29]Communications Act of 1934, 47 U.S.C. § 151 (1996).

[30]For a detailed account of the establishment of federal control over broadcasters, see Hazlett, supra note 18.

[31]The 1996 Telecommunications Act left radio and TV station licensing virtually untouched.

[32]AM radio was the only broadcasting service at the time of the 1934 Communications Act, with the FCC allocating spectrum for FM and television in subsequent years.

[33]Editorializing by Broadcast Licensees, 13 F.C.C. Rep. 1246, 1249 (1949).

[34] CFR § 73.1910 (1997).

[35]In the Matter of Inquiry into Section 73.1910 of the Commission's Rules and Regulations Concerning the General Fairness Doctrine Obligations of Broadcast Licensees, 102 F.C.C. Rep. 2d 142, 146 (1985).

[36]Id.

[37]The original directive that broadcasters provide "reasonable opportunity" for the discussion of various viewpoints evolved into the equal access provision in the early 1960s. Equal access required broadcasters to grant respondents free airtime if no one was willing to pay.

[38] F.C.C. Rep. 1246, 1251; Fairness Report, 48 F.C.C. Rep. 2d 1, 33 (1974); 102 F.C.C. 2d 145, 160.

[39] F.R.C. 156 (1928).

[40]Great Lakes Broadcasting Co., 3 F.R.C. 36 (1929).

[41]Powe, supra note 19, at 109.

[42]One of the owners of Mayflower Broadcasting Company was a former employee of the Yankee network who had previously complained to the FCC about WAAB's editorial policy.

[43]In the Matter of Mayflowyer Broadcasting Co., 8 F.C.C. 333 (1940).

[44]Id., at 340.

[45] F.C.C. 1246.

[46]The personal attack rules were an addition to the Fairness Doctrine introduced in the 1960s.

[47] U.S. 367, at 375.

[48]FRED FRIENDLY, THE GOOD GUYS, THE BAD GUYS, AND THE FIRST AMENDMENT (1975).

[49]Id. at 35.

[50]Id. at 39.

[51]Id.

[52]Id. at 42.

[53]Id. at 38.

[54]For the remainder of his career, the Fairness Doctrine made Hargis a potential liability to all broadcasters. In fact, over a decade after the historic broadcast Hargis remarked that "many stations are still afraid to run [my program]."

[55]DANIEL SCHORR, CLEARING THE AIR 48 (1977).

[56]The FCC has licensed broadcast outlets -- radio and television stations -- but not the national networks that supply programming. However, each of the networks owns several TV stations in the largest markets; hence, the government does have some leverage over programmers through station license renewal and transfers. Id.

[57]Until 1981, radio and television licenses were issued for three year periods. When the license expired, the licensee was required to file a renewal application with the FCC. At this point any third party could file a competing application for the license. Although renewals were, as a rule, granted, a competitive application would generally delay the renewal procedure and substantially raise the cost of renewal to the licensee through additional research and legal fees. Id.

[58]John Pastore, chairman of the Senate Communications Subcommittee. (Quoted in SCHORR, supra note 55, at 62).

[59]Roger Mudd wrote a balanced but critical commentary of the network's decision, which was to be aired on CBS Radio the day after the announcement. It too was eliminated. Only after a memo outlining the meeting between White House staffers and Paley was leaked four and a half months later did CBS resume to the practice of instant analysis of presidential speeches. (POWE, supra note 19, at 139).

[60]SCHORR, supra note 55, at 74.

[61]Id. at 42.

[62]In re Complaints of Committee for the Fair Broadcasting of Controversial Issues, 25 F.C.C. 2d 283 (1970), rev'd 454 F.2d 1018 (D.C. Cir 1971).

[63]During his first eighteen months in office Nixon made 14 televised speeches, as many as the total for Eisenhower, Kennedy and Johnson combined over a comparable period. Columbia Broadcasting Sys. Inc. v. Federal Communications Comm'n, 454 F.2d 1018, 1020 (D.C. Cir. 1971).

[64] F.C.C. 2d 283.

[65] F.2d at 1027.

[66]SCHORR, supra note 55, at 52.

[67]The Post's Jacksonville station survived a license challenge in 1970 by the man who became the finance chairman of Nixon's 1972 campaign in Florida. The Miami station survived challenges, in 1970 and 1972, by Nixon allies. POWE, supra note 19, at 131.

[68]General Fairness Doctrine Obligations of Broadcast Licensees, 102 F.C.C.2d 143, 176 (1985).

[69]Banzhaf v. Federal Communications Comm'n, 405 F.2d 1082 (1968).

[70]WILLIAM B. RAY, FCC: THE UPS AND DOWNS OF RADIO-TV REGULATION 100 (1990).

[71]A leading force in this was President Carter's Assistant Secretary of Commerce for Telecommunications, Henry Geller. A former FCC General Counsel who had avidly pursued content controls through licensing, Geller came to the view that, "Behavioral regulation sucks. The one thing that works is competition, and that's what I keep pushing for." Who Are You Gonna Call? Here Are The Bell Ringers, NAT'L L.J., May 1, 1995, at A24.

[72]In Matter of Deregulation of RadioDeregulation of Radio: Report and Order, 84 F.C.C.2d 968 (1981).

[73] F.C.C.2d at 971. The Commission lifted the same rules applying to television station licenses in 1984.

[74]Id. at 1014.

[75]In the Matter of Deregulation of Radio, 73 F.C.C.2d 457, 594 (1979).

[76]Judge David Bazelon argued in 1975 that the Fairness Doctrine was "the most overt form of program regulation in which the FCC engages." Bazelon, supra note 19, at 219.

[77]Fairness Doctrine, 102 F.C.C.2d 142, at 147.

[78]Id. at 171.

[79]Id. at 147.

[80]Id.

[81]Id. at 160. However, because of uncertainty over the Commission's authority to abolish the Fairness Doctrine, the rule remained in effect until August 1987 when it was finally eliminated. Congress later attempted to codify the fairness doctrine, which would have effectively reimposed the FCC's own regulation. H.R. 1934 / S. 749, 100th Cong., (1987).

[82]ERNEST F. HOLLINGS, FAIRNESS IN BROADCASTING ACT OF 1987, S. Rep. 100-34 at 14, (1987).

[83]See also Thomas W. Hazlett and David W. Sosa, Was the Fairness Doctrine a "Chilling Effect"? Evidence for the Post Deregulation Radio MarketWAS THE FAIRNESS DOCTRINE A 'CHILLING EFFECT?': EVIDENCE FROM THE POSTDEREGULATION RADIO MARKET, 26 J. LEGAL STUD. 279 (1997).

[84]The FCC received thousands of comments during its 1979-81 proceedings. For example, the ACLU and the National Organization of Women argued that, "consumer satisfaction is not the appropriate criterion for judging performance of radio markets. Rather... public 'need' as distinguished from public 'want' should be the criterion..." 84 F.C.C. 2d 968, at 1015. Likewise, the 1987 elimination of the Fairness Doctrine sparked a maelstrom of protest from groups as diverse as the ACLU, Mobil Oil and the NAACP, as well as conservative commentator Pat Buchanan.

[85]VINCENT M. DITINGO, THE REMAKING OF RADIO (1995).

[86]Douglas Davidoff, Rock to talk: Indiana AM radio saved by the gift of gab, 37(10) INDIANA BUSINESS 21 (1993).

[87]See generally LAWRENCE LESSIG, A MAN OF HIGH FIDELITY: EDWARD HOWARD ARMSTRONG, 257-292 (1956) (discussing the developmental setbacks suffered by FM stations in the period after World War II).

[88]DITINGO, supra note 85, at 18, 60.

[89]BROADCASTING AND CABLE YEARBOOK (1995). The Yearbook publishes detailed information on broadcasters, including a list of stations by principal format. A principal format (as defined by the Yearbook) is one that the station broadcasts for more than twenty hours per week. Under this definition, it is possible for a station to have more than one principal format. Our data series begins in 1975 because this was the first year the Yearbook compiled comprehensive data on radio stations by format.

[90]Music accounted for 90.8% of AM programming in 1975, falling to 51.7% in 1995. In FM the share of music formats fell from 89.8% to 79.6% over the period. Id.

[91]The "mixed" category consists of formats such as agriculture and drama/literature that neither fit well into another category nor have any clear relationship between one another.

[92]News/talk was introduced as a format in 1990. It appears, logically enough, to have drawn from both news and talk formats.

[93]In Re Deregulation of Radio, 73 F.C.C.2d 457 (1979).

[94]Id. at 491-525.

[95]Id. at 485.

[96]Hazlett and Sosa, supra note 83.

[97]We limited our quantitative analysis to AM radio because of changes in the way formats were reporting for FM during the sample period.

[98]AM will have a comparative advantage over FM for talk formats due to differences in the cost of operations. AM delivers lower sound quality than FM, but this is more acceptable for talk formats as opposed to musical high-fidelity formats.

[99]In 1979 the Commission admitted that "[a]lthough the Fairness Doctrine requires stations to provide coverage of controversial issues of interest to the community, we [FCC] have never defined the term 'community' as it applies to fairness issues." 73 F.C.C.2d at 517.

[100]Steve Russell, The X-On Congress: Indecent Comment on an Indecent Subject, AM. REPORTERFebruary 8, 1996 (reprinted in HARPER'S MAGAZINE, May 1996, at 24). This profanity-filled condemnation of the CDA was originally published in the American Reporter, an online journal, on February 8, 1996 as a deliberate challenge to the CDA. To underscore arguments that the electronic media is treated differently than print, two magazines reprinted the article two months later, and found (obviously) no prosecution in the offing.

[101]Letter from Laura W. Murphy and Donald Haines of the ACLU to the House Conference Committee on Telecommunications Deregulation (Dec. 4, 1995) (available at <http://www.aclu.org/congress/cybrltr.html>, visited April 2, 1997).

[102]Pamela Mendel, AOL May Abandon Chats if Decency Law Stands, N.Y. TIMES CYBERTIMES, April 2, 1996 <http://www.nytimes.com/web/docsroot/library/cyber/week/0402decency.html>.

[103]This view has been thoroughly critiqued by economists and legal experts. See Coase, supra note 17; Hazlett, supra note 18; J. Gregory Sidak, Telecommunications in Jericho, 81 CAL. L. REV. 1209 (1993) (book review).

[104]The Internet Freedom and Family Empowerment Act, H.R. 1978, 104th Cong., 1st Sess. (1995) (codified at 47 U.S.C. §230(a) (1996)).

[105]ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996).

[106]Id. Although the outcome was unanimous, each judge wrote a separate opinion in the case.

[107]Id.

[108]Radio Act of 1927, 47 U.S.C. §81 (1996) (original version at 44 Stat. 1162).

[109]Communications Act of 1934, 47 U.S.C. §§151 (1996).

[110]National Broadcasting Co. v. United States, 319 U.S. 190 (1943).

[111]See, e.g., Coase, supra note 17.

[112]FCC v. Pacifica Foundation, 438 U.S. 726 (1978).

[113]Id. at 748.

[114]See Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, (1994) (cable television), and Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126 (1989) (telephone communications).

[115] F. Supp. at 844.

[116]Print or Broadcast Model?; Judges Pressure Justice Department on Telecom Act Decency, COMM. DAILY, May 13, 1996, at 1.