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The Electronic Media And The Flight From First Amendment Doctrine: Justice Breyer's New Balancing Approach, Jerome A. Barron

University of Michigan Journal of Law Reform

Contemporary First Amendment issues in cases involving the electronic media transcend traditional conflicts between the government and the speaker. The speaker is not easy to identify. Listeners, programmer and medium operators or distributors all have competing claims to First Amendment protection. To determine whose interests shall prevail, courts increasingly seek a methodology that accounts for these warring interests. Justice Breyer, along with Justice Souter and, in some respects, Justice Stevens, have been instrumental in reviving balancing as a First Amendment approach in these situations.

In two recent First Amendment cable television cases Turner Broadcasting System, Inc. v. FCC (Turner II) …