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The Logic Of Scarcity: Idle Spectrum As A First Amendment Violation, Stuart Minor Benjamin

Duke Law Journal

The Supreme Court has distinguished the regulation of radio spectrum from the regulation of printing presses, and applied more lenient scrutiny to the regulation of spectrum, based on its conclusion that the spectrum is unusually scarce. The Court has never confronted an allegation that government actions resulted in unused or underused frequencies, but there is good reason to believe that such government-created idle frequencies exist. Government limits on the number of printing presses almost assuredly would be subject to heightened scrutiny and would not survive such scrutiny. This Article addresses the question whether the scarcity rationale-or any other reasoning-supports distinguishing …