Changing Circumstances, Contexts, and Concepts: Analyzing the
Supreme Court's Use of Public Through a Half-Century of Rulings on Electronic
Media
A Paper Submitted
on April 1, 1999
to the Law Division of AEJMC
By Susan Dente Ross
and Julie Andsager
Edward R. Murrow School of Communication
234 Murrow East
Washington State University
Pullman, WA 99164
509/335-5842
FAX: 509/335-1555
[log in to unmask]
ABSTRACT
Changing Circumstances, Contexts, and Concepts: Analyzing the
Supreme Court's Use of Public Through a Half-Century of Rulings on Electronic
Media
Communication policy rests upon the concept of a public whose interests can be,
should be, and are served by government. Yet the concept of public has been
criticized as vague, poorly understood, and inconsistently applied by the
Supreme Court. This study used a computer-assisted content analysis program to
analyze the use of the term public within the text of Supreme Court rulings.
This method illustrates the highly contextual meaning of public as applied by
the Court in its electronic media rulings since the mid-1900s.
The axiom that American democracy is government of, by, and for the people
has been widely challenged by scholars from an array of fields and a variety of
theoretical perspectives. The myth of public self-governance is undermined by
infinitesimal voter turn-out in national elections, by ignorance of policy
issues by a majority of American adults (as measured by numerous public opinion
polls), and by policy processes that exclude, marginalize, or render powerless
entire subgroups of the population.
Despite sometimes withering attacks on the functioning of public
self-governance, government officials, policy analysts, and scholars cling
tenaciously to the notion of a public whose interests can, should be, and are
served by government. Policy, regulation, and jurisprudence consistently
distinguish between public and private, and rest upon the advancement of public
interests.
Yet policy rests upon various and erratic definitions of both public and
private. At times, the two are envisioned as mutually exclusive terminal points
on a scale of interests, as in the common conception of public versus private
property.[1] At other times, public is conceptualized as the aggregate of
individual (private) desires. Or public may refer to some diffuse (and
transient) set of communal ideals and objectives that are both different from
and greater than the sum of the parts. Thus, while the public interest remains a
cornerstone of public policy, its meaning long has been questioned and
debated.[2]
Even in analyses of the notion of public as inherent in "public opinion" -
rather than policy - public is vaguely defined as an interacting group focused
on matters of common interest.[3] This public is not formally organized but "has
voluntary, indigenous, 'organic' form, and is conscious of trying to have an
impact on policy through rational discourse."[4]
Clearly, throughout its uses, the concept of public has been criticized as vague
and poorly understood.[5] Indeed, there exists "confusion among even its
strongest proponents about its essential character and [the] ultimate
implications [of its application to] communication policy."[6] Still, the
contemporary concept of public, which dictates much communication policy, finds
its roots in legislation and Supreme Court jurisprudence as early as the
1800s.[7]
This study offers a new perspective on the continuing debate about the legal
meaning(s) and implications of the concept of public b
Changing Contexts and Concepts
y examining when and how the Supreme Court has conceptualized the public and its
interest within the Court's electronic media opinions. Like the work of Willard
Rowland, this study is not primarily a "formalistic [legal] analysis" of these
cases but is instead an effort to explore the Court rulings as texts whose
meanings may both reflect and shed light on communication theories of public
opinion.[8] Additionally, this work attempts to determine whether the Court has
endorsed any dominant philosophy of public through time.[9]
Communication Context of Legal Theory
Because legal theory and practice develop within a society, disciplines outside
of the law - such as communication theory - may inform our understanding of the
law. In examining conceptualizations of the term public, one discovers that
communication scholars lack consensus during the 20th century.[10] At the turn
of the century, communication researchers viewed public as the unstable product
of transient sociological influences, an ever-changing loosely formed collective
of a significant number of people that existed only through attention to and
discussion of key issues.[11] The public was the unique product of communal
influences, a mass or crowd phenomenon that produced unique values, needs, and
priorities.[12] Park distinguished crowd and public, identifying both as a
collective will in the process of establishing a social norm or group, but
defining a crowd by its emotional unanimity and a public by its oppositional
discourse about a particular issue[13]
Some theorists, including Allport, argued from democratic theory that the public
must include every individual within a defined geographic area[14] For others,
the public was neither monolithic nor uniform. Lippman suggested that a public
required focused, interactive collective behavior of most, but not all, group
members[15] Lippmann divided the public between participant interest groups and
more detached observers. Blumer advanced the vision of the public as "a group of
people (a) who are confronted by an issue, (b) who are divided in their ideas as
to how to meet the issue, and (c ) who engage in discussion over the issue."[16]
Another group viewed public as impermanent. Foote and Hart outlined the stages
through which publics develop and dissolve[17] Others have relied increasingly
on public opinion polling to view public as a statistical construct rather than
a discrete entity with unique traits.[18] Key suggested a contextual, elitist
definition in which the public changed in response to a series of specific
conditions and tended to equate with active voters and attentive, engaged
citizens.[19] Price turned theory on its head and argued that the unanimity and
inclusiveness of a crowd was a "counterconcept against which the public is
defined."[20]
Judicial Reach and Review
As communication theory about publics was shifting, the Supreme Court was
expanding the right of government to regulate industry to benefit the public. In
1877, the Supreme Court evoked the concept of "public interest" to sustain
Illinois state regulation of rates charged by private grain elevator operators
although the operators did not enjoy monopoly control.[21] A majority of the
Court found that, even absent monopolization, when a private citizen dedicates
"property to a use in which the public has an interest, he, in effect, grants to
the public an interest in that use, and must submit to be controlled by the
public for the common good, to the extent of the interest he has thus created."
(emphasis added)[22]
Having opened the doors to regulation of private, non-monopoly businesses, the
Court in 1931 applied the concept of public concerns and interests to the media
when it struck down a Minnesota statute that permitted prior restraint.[23] In
Near v. Minnesota, the Court acknowledged the public character of newspapers
when it struck down a 1925 law that permitted "abatement [of defamatory
periodicals] as a public nuisance" but endorsed "punishment for the abuse of the
liberty accorded to the press [as] essential to the protection of the public."
In the 60-plus years following Near, the goals, interests, and needs of the
public have been pivotal to numerous Supreme Court rulings related to the media,
particularly the electronic media. Some observers criticize the Supreme Court's
application of public interest doctrine as inconsistent.[24] Yet consistency may
be neither desirable nor possible in the context of statutory review. Judicial
review demands that attempts to define fundamental but ambiguous terms such as
public or public interest be resolved through reference to the broad principles
of any specific act as expressed, for example, in the law's preamble. But if the
law's expressed purpose is the enhancement of the public interest, then courts
have no means of independent, objective evaluation of what constitutes the
public interest. Definitions devolve into tautologies. Particularly at such
times, the Court may conduct independent analysis and review to develop a
discrete concept of the public interest.
Foundations of Legal Conceptions of Public
In a search for the legal distinction between public and private, one must go
back to the two intertwining anti-federalist and federalist strands of American
constitutional law. The anti-federalist strand protected the right of private
contract from governmental action as essential to the promotion of commerce and
as vital to the protection of individual freedom. Anti-federalism, or classic
liberalism, counterpoised the individual and society and argued that any
distinct notion of public (i.e., any definition of public that did not equal the
sum of individual desires) violated individual freedom.[25]
In contrast, federalists believed the government should promote and protect the
public good precisely because and to the degree that this public interest
differed from the aggregate of individual preferences.[26] They viewed
individualism as antithetical to any communal public good.[27] Government's
primary role then was to assert the interests and protect the rights of an
organic, communal public that could not be expected to arise from the struggle
of competing narrow, personal perspectives.[28] Thus, federalists circumscribed
the exercise of corporations because corporations had a public nature, and the
characteristics that led corporations to be public (most notably,
monopolization) were the origins of the legal concept of public versus private.
The anti-federalist/federalist dichotomy parallels other fundamental divisions
in legal theory relevant to the Court's use of the term public. First, legal
theory divides between classical natural law theory and legal positivism.
Natural law theorists, including Ronald Dworkin, view inalienable human rights
and individual (private) liberties as the moral source of law.[29] In contrast,
legal positivists view laws and rights as the product of collective (public)
deliberation and institutional or political action. While natural law accepts
that higher moral principles should direct the law, legal positivism maintains
that "good" law is the necessary product of a valid legal process.
Another fundamental schism exists between positive and negative interpretations
of liberty. Closely related to the positions of political liberals and
conservatives, and also to theories of social responsibility or libertarianism,
the distinction between positive and negative liberty theory rests on a
different understanding of the role of government. To oversimplify, liberals,
positive liberty theorists, and social responsibility advocates believe in
government action to promote individual opportunity. [30] In contrast,
conservatives, negative liberty theorists, and libertarians believe that the
government role must be limited to implementing the express directives of the
collective voice of the people.[31] These theories alternately view the law as
the social mechanism either to assure an individual's government-assisted
"freedom to" participate equally or her "freedom from" government interference
with collective goals as expressed through the marketplace.
Some scholars suggest that these dichotomous legal positions are merely the
"recapitulations of a set of insoluble dilemmas inherent in our [conflicting]
notions of rights, individuals, and government."[32] Streeter, for example,
rejects mutually exclusive definitions of public/private and asserts that "the
public interest ... necessarily involves private interest, and vice versa."[33]
Both terms have meaning only in a specific context and as "a reification of
concrete circumstances." [34] Accordingly, public and private constitute each
other and exist only in relation to their complement. "The apparently noble task
of protecting the freedoms of individuals against group constraints ... makes
sense only if freedom, constraint, individuals, and groups are manifestly
distinct categories. And manifestly, they are not." [35]
Method
Despite these conflicts and confusion, the Supreme Court has consistently
evoked the public and its concerns and interests as a fundamental consideration.
This study culled 46 rulings on the electronic media that use the term public
from the more than 300 Supreme Court communications opinions issued between 1933
and 1998.[36] To analyze the text of the court decisions, the authors employed
a computer-assisted content analysis program called VBPro[37] that forms
concept clusters based on selected terms' co-occurrence within cases. The VBPro
program has been successfully used in previous studies to analyze themes in news
stories over time.[38] Key terms were selected by the authors based on their
frequency and meaning, as determined by reading the cases.
A content analysis search list of 110 frequently occurring, meaningful terms was
created by the authors. Synonyms were grouped together in the search list, such
that the content analysis program recognized each as being the same term - for
example, "voices," "views," and "viewpoints." Variations of the same word were
also grouped to be coded by VBPro as one term (e.g., "balance," "balanced,"
"balancing"). The computer-assisted content analysis program then coded the
responses for occurrence of these terms within cases (where "case" is one
Supreme Court decision) and generated 10 unstandardized eigenvectors for each
term in the search list. Those eigenvectors were used in SPSS to group the
terms into 15 co-occurring concept clusters, using hierarchical cluster
analysis, using the agglomerative algorithm with the cosine method of
similarity.
The grouping of the terms by the hierarchical analysis indicates their pattern
of co- occurrence together in the text. For instance, the cluster analysis
connected the terms freedom, robust, First Amendment, and ideas. As shown in
Table 1, these clusters largely reflect the content of Supreme Court decisions.
TABLE 1 ABOUT HERE
The search list was then reconstituted to group all terms into those 15
clusters, and a groups of terms representing Public was added to the new search
list. The concept clusters, along with Public, were coded by VBPro to generate
three unstandardized eigenvectors for each, or coordinate values derived
mathematically from the cosine coefficient similarity measure. The matrix of
values may be used to construct multidimensional maps showing the relative
proximity of term co-occurrence. This matrix was then used to map the 16 total
clusters in three-dimensional space to illustrate co-occurrence among clusters
emerging from the text of the Court cases.
To fully examine the concept clusters, it is useful to study the concept map
shown in Figure 1. A brief explanation of how to interpret the concept map will
assist discussion of the clusters. The clusters are intended to be represented
in three-dimensional space, such that the axes in the center of the figure
indicate dimensions on a plane. When clusters project upward from that plane,
they share the same value (positive) on the third dimension, while those
projecting downward have the opposite value on the third dimension. Thus, in
Figure 1, although the Public cluster is located about equidistantly from FCC
and Candidates on the first two dimensions, the map shows that Public is much
more closely associated with FCC because they both have positive third
dimensions, unlike Candidates. The closer the clusters, the more they were
associated with each other in the Court decisions.
Findings and Discussion
The 15 co-occurring concept clusters suggest some interesting associations and
disassociations. As shown in Table 1, for example, four clusters seem to focus
on terms related to common carriage, cable operators, and access. Yet the four
are most frequent in two major Court rulings on cable and are differently
associated with the term public. Cable TV has its own cluster that includes the
words local, community, television, technology, business, cable, available,
benefits and harm. Obligations includes all forms of obligate, require and duty,
as well as interest and statute. The Access cluster includes the words access,
property and content, and terms associated with common carriers, public forum
doctrine and leased-access channels. The Operate cluster includes variants of
that word.
To analyze how the concept clusers fluctuated over time, the frequency of
occurrence of terms in the clusters was examined on a case-by-case basis.
Terms representing the Cable TV and the Obligations clusters are most common in
the 1972 ruling United States v. Midwest Video Corp.,[39] which upheld the FCC
requirement that cable operators originate programming. Operate and Access
peaked together in the 1996 ruling Denver Area Educational Telecommunications
Consortium v. FCC,[40] in which the Court refused to apply public forum doctrine
to leased-access channels. Further, Obligations and Cable TV are much more
closely associated with Public than is either Operate or Access, which has the
weakest association of the three terms.
This may suggest that the Court's use of the term public in Midwest Video
differs in a substantial and meaningful way from the use of the same term in its
more recent cable ruling. The grouping of terms may even suggest that the
Court's ruling on origination of programming rested upon analysis of the duty of
relatively new cable technology to serve and not to harm the local community. In
contrast, the term clusters that appear in Denver Area Educational
Telecommunications Consortium suggest that a quarter century later the Court
viewed public concerns with leased-access largely from the perspective of the
operator.
Further support for the assertion of a longitudinal shift away from a public
service approach by the Court is provided by the fact that the Serve cluster,
which includes forms of serve, service and programming, also peaked in Midwest
Video.[41] This orientation may have extended beyond the cable rulings, however.
For example, the Obligations cluster also peaked in two other cases decided at
approximately the same time as Midwest Video.[42] The first, Red Lion
Broadcasting v. FCC, upheld content regulations of broadcasting on the premise
that spectrum scarcity permitted government regulation to advance the public's
interests.[43] CBS v. Democratic National Committee, in contrast, rejected the
notion that broadcasters had a duty to broadcast advertisements on issues of
public interest.[44]
Another quartet of concept clusters relates to FCC authority, policies and
restrictions. The Authority Cluster includes the terms authority, forms of
compel, impose and rule. The FCC cluster includes terms related to applications,
competition, diversity, policies, renewals and the marketplace. The terms
commercial, educational, noncommercial, narrow, broad and restrictions form the
Restrictions cluster. Finally, terms related to politics, laws and candidates
cluster to form Candidates. While Authority and FCC are very closely associated
with each other and equally closely related to public, they are quite distinct
from both Candidates and Restrictions. Candidates, however, is one of the most
closely related clusters to the term Public.
All four concept clusters peak between 1981 and 1984, with FCC and Authority
most frequent in FCC v. WNCN Listeners Guild,[45] Candidates being dominant in
CBS v. FCC[46] and Restrictions appearing most in FCC v. League of Women Voters
of California.[47] All three decisions deal with FCC regulation of broadcast
programming, and all three essentially defer to the industry position. In WNCN
Listeners Guild, the Court allows the FCC to relax its regulation of program
format in favor of industry response to market demand.[48] The CBS Court
established a "reasonable" access requirement for campaign materials,[49] and
League of Women Voters permitted the broadcast of political debates as news
content without triggering equal time access provisions.[50]
These clusters may indicate that during the early 1980s, as the FCC adopted a
more deregulatory approach, the Court also viewed Restrictions (the most distant
of the four concepts from Public) as unrelated -- or even contrary -- to the
concerns of the public. Correspondingly, the Court saw the FCC and its Authority
as distant from the public's interests. Yet because market and marketplace also
fall within the FCC cluster, it is unreasonable to suggest that the Court was
adopting a marketplace conception of the public interest in these opinions.
Indeed, the proximity of Candidates to Public indicates that, in the early '80s,
the Court endorsed the notion that "reasonable" steps would advance the public
interest in politics and candidates. It is noteworthy, however, that none of
these clusters has appeared frequently in any subsequent Court opinions.
Three key free speech concepts cluster close to Public. The term Dissent stands
alone as a concept cluster and is the single term most closely associated with
the term Public. The Speech cluster, which incorporates terms related to
constitutionality, government, provision, risk, speech and speakers, limits,
bans, doctrines, risks and expression, lies extremely close to Public on the
cluster map. Interestingly the Fairness Doctrine falls within the Speech
cluster rather than within any of the FCC-related clusters, suggesting a strong
speech rather than regulatory perspective on the part of the Court when
discussing that doctrine. Finally, the large First Amendment cluster rounds out
the trio. This large and diverse cluster incorporates both terms related to
fundamental freedoms and rights, and terms that distinguish among media or
invoke responsibilities, restrictions or censorship.
The analysis further indicates that all three free speech clusters peaked in
the same Supreme Court opinion: the 1973 case of CBS v. Democratic National
Committee.[51] The opinion offers a particularly rich source of information on
the Court's use of the term Public because it is also the case in which the
Publish cluster, which incorporates terms related to the press, newspapers,
publishing, performance and ownership, peaked. As noted earlier, the Obligations
cluster also peaked in CBS v. Democratic National Committee. This case, then, is
the nexus of several free speech, publishing and responsibilities clusters,
which indicates that the Court framed its rejection of an advertisers' right of
access to broadcasting in terms of both the broadcasters' Obligations to the
public and the Speech interests of the public.
The Publish cluster, which is quite closely associated with Public, was also
dominant in two other rulings in the 1970s: FCC v. National Citizens Committee
for Broadcasting in 1978 and Zacchini v. Scripps Howard Broadcasting in
1977.[52] The two rulings limited the cross-media ownership and the editorial
immunity of broadcasters through counterpoising broadcasters and the print
press.
The Words cluster actually includes terms that tend to characterize less
protected forms of expression. Thus, communication, conduct, indecent, privacy
and offensive are part of this cluster, which peaked in the 1978 FCC v. Pacifica
decision holding that the FCC could regulate the broadcast of indecent
programming without running afoul of the First Amendment.[53] The proximity of
this cluster to Public suggests that the Court's interpretations of "marginal"
forms of speech relate closely to the Court's understanding of what the public
wants and does not want in broadcast programming. Indeed, Pacifica stood upon
the Court's interpretation of public "standards of morality."[54]
The final cluster, Protect, is the most distant cluster from Public. It peaked
early in the Court's electronic media rulings, in the 1943 decision in NBC v.
United States,[55] in which the Court established the FCC's broad regulatory
powers of broadcasting under the public interest doctrine. It is significant
that the Protect cluster is greatly removed from the FCC and Authority clusters
with which one might normally associate it. This distance and the fact that
Protect peaked in 1943 and FCC and Authority peaked in 1981 may suggest that the
Court changed its view of what FCC role would best serve the public. The Protect
cluster in 1943 may reflect the Court's support of regulatory protectionism of a
nascent industry, while the FCC and Authority clusters in 1981 indicate a shift
to a more deregulatory stance.
Conclusion
Analysis of the text of Supreme Court rulings on the rights and responsibilities
of the electronic media suggests a highly complex and nuanced use of the term
Public that may have shifted through time. This analysis suggests that the
Court's use of Public may have changed as industries matured and competitive
pressures shifted. For example, between 1943 and the early 1980s, the Court's
use of the Term public in broadcast cases shifted away from a concern with
Protection of the emerging medium toward consideration of the FCC's Authority
and, possibly, the need to Protect the industry from cable competition.
Similarly, the analysis indicates that between 1972 and 1996 the Court appears
to have moved away from a focus on the cable industry's Obligations to the
public toward an emphasis on Operators.
Another interesting result of this study is that Dissent is the term used in
electronic media cases that the Court associated most closely with Public. Thus,
in 46 cases from the mid-1900s to the present, the Court expressed its interests
and concerns about the Public in terms of Dissent. This finding supports
fundamental First Amendment theory that suggests that a primary value of free
speech is to protect non-majoritarian ideas.
Finally, this research supports findings from a number of other studies using a
variety of methods that indicate that the meaning of legal terms of art is
highly contextual. Moreover, the tendency for certain concept clusters to peak
in a specific time period suggests that -- beyond the fact- and
question-specific context of each case -- the meanings of significant legal
terms may be affected by the circumstances of judicial rulings. Additional study
and correlation of this research with historiographic data may support the
preliminary indication that the era, the individual justices sitting at the
bench, and the social issues that surround a ruling (to name a few possible
influences) provide the circumstances that not only help determine rulings but
that actually give meaning to judicial language.
Unique to this analysis is the employment of the cluster analysis procedure to
develop concept clusters. The use of the computer-assisted content analysis
program, while not rigorously objective due to its reliance upon the author's
selection of key terms and interpretation of the clusters and cluster
distribution, adds to the richness of the study because it associates the term
public with other key terms regardless of our preconceptions of their
relationships.
While such analysis does little to resolve the fundamental ambiguity of the
legal concept of the public, it enriches our understanding of the contextual
nature of the Court's meaning.
[1] See, e.g., Thomas v. Union Carbide Agric. Products Co., 473 U.S. 568, 585
(1985).
[2] See, e.g., Willard D. Rowland Jr., The Meaning of 'The Public Interest' in
Communications Policy, Part I: Its Origins in State and Federal Regulation, 2
Comm. L. & Pol'y. 309 (1997); Willard D. Rowland Jr., U.S. Broadcasting and the
Public Interest in the Multichannel Era, 33 Stud. Of Broadcasting 89 (1997);
Newton N. Minow & Craig Lamay, Abandoned in the Wasteland 58-104 (1995); Denis
McQuail, Media Performance: Mass Communication and the Public Interest 20-33
(1992).
[3] See, e.g., Herbert Blumer, Public Opinion and Public Opinion Polling, 13
Amer. Soc. Rev. 542-544 (1948); Jurgen Habermas, The Structural Transformation
of the Public Sphere: An Inquiry into a Category of Bourgeois Society (1989).
[4] Peter V. Miller, The Industry of Public Opinion, in Theodore L. glasser and
Charles T. Salmon., eds., Public Opinion and the Communication of Consent
105-131 (1995).
[5] See, e.g., Robert W. McChesney, Telecommunications, Mass Media, and
Democracy: The Battle for the Control of U.S. Broadcasting, 1928-1935 18 (1994);
Erwin G. Drasnow et al., The Politics of Broadcast Regulation 16 (3rd 1982).
[6] Willard D. Rowland Jr., The Meaning of 'The Public Interest' in
Communications Policy, Part I: Its Origins in State and Federal Regulation, 2
Comm. L. & Pol'y. 309, 313 (1997).
[7] See, e.g., Willard D. Rowland Jr., The Meaning of 'The Public Interest' in
Communications Policy, Part I: Its Origins in State and Federal Regulation, 2
Comm. L. & Pol'y. 309 (1997) (arguing that the public interest "standard had
been in public statutory use for nearly a century and it had demonstrated a
remarkable capacity for subsuming seriously conflicting definitions." @ 315).
[8] See, e.g., C.H. Cooley, Social Organization: A Study of the Larger Mind
(1909); K. Young, Comments on the Nature of Public Opinion, 1 J. of Opinion and
Attitude Res. 385 (1948); V. Price, On the Public Aspects of Opinion: Linking
Levels of Analysis in Public Opinion Research, 15 Comm. Res. 659 (1988).
[9] See generally Elizabeth Blanks Hindman, Rights vs. Responsibilities, The
Supreme Court and the Media (1997) (an excellent and inspirational analysis of
the Court's conceptions of responsibility).
[10] See, e.g., C.H. Cooley, Social Organization: A Study of the Larger Mind
(1909). See also K. Young, Comments on the Nature of Public Opinion, 2 Int'l J.
of Opinion and Attitude Res. 385 (1948); V. Price, On the Public Aspects of
Opinion: Linking Levels of Analysis in Public Opinion Research, 15 Comm. Res.
659 (1988).
[11] See, e.g., C.H. Cooley, Social Organization: A Study of the Larger Mind
(1909).
[12] K. Young, Comments on the Nature of Public Opinion, 2 Int'l J. of Opinion
and Attitude Res. 385 (1948); V. Price, On the Public Aspects of Opinion:
Linking Levels of Analysis in Public Opinion Research, 15 Comm. Res. 659 (1988).
S. Moscovici, Social Influence and Conformity, in 2 Handbook of Social Psych.
347, G. Lindzey & E. Aronson, eds. (3d: 1985) (arguing that the roots of modern
psychology are found in fear of harmful effects of 'massification' of society in
late 19th and early 20th centuries).
[13] R.E. Park, The Crowd and The Public and Other Essays 79-80 (H. Elsner
Jr., ed., C. Elsner, trans.: 1972/1904).
[14] F. Allport, Toward a Science of Public Opinion, 1 Pub. Opinion Qt'ly 7
(1937).
[15] W. Lippmann, The Phantom Public (1925).
[16] H. Blumer, Collective Behavior, in New Outlines of the Principles of
Sociology 167, A.M. Lee, ed. (1946).
[17] N. Foote and C.W. Hart, Public Opinion and Collective Behavior in Group
Relations at the Crossroads, M. Sherif & M.O. Wilson (eds.) (1953) (identifying
the stages of development of a public as: 1) a problem identification phase, 2)
an explorative proposal phase 3) an evaluative and consensus-building policy
phase, 4) a policy adoption and implementation phase, and 5) an appraisal
phase).
[18] D.W. Minar, Public Opinion in the Perspective of Political Theory, 23 The
W. Political Qt'ly. 31 (1960); P.E. Converse, Changing Conceptions of Public
Opinion in the Political Process, 51 Pub. Opinion Qt'ly. S12 (1987).
[19] V.O. Key Jr., Public Opinion and American Democracy 15 (1961).
[20] V. Price, Public Opinion 26 (1992).
[21] Munn v. Illinois, 94 U.S. (4 Otto) 113 (1877) (sustaining legislative
policy on rates for grain elevators and introducing the leitmotif of the "public
interest").
[22] Id. at 126.
[23] Near v. Minnesota, 51 S.Ct. 625, 283 U.S. 697 (1931).
[24] See, e.g., Steven L. Winter, Indeterminacy and Incommensurability in
Constitutional Law, 78 Calif. L. Rev. 1441, 1449 (1990); Cynthia L. Estlund,
Speech on Matters of Public Concern: The Perils of an Emerging First Amendment
Category, 59 Geo. Wash. L. Rev. 1 (1990); Robert E. Drechsel, Defining "Public
Concern" in defamation cases Since Dun & Bradstreet v. Greenmoss Builders, 43
Fed. Com L.J. (1990). See also William T. Mayton, The Illegitimacy of the Public
Interest Standard at the FCC, 38 Emory L.J. 715 (1989).
[25] . See, e.g., Laurence Tribe, American Constitutional Law @15-1, 1302 (2d
ed. 1988); Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale. L.J.
943, 946 (1987); John S. Mill, On Liberty 13 (A. Castell ed. 1947) (noting that
mankind gains more by "suffering each other to live as seems good to themselves,
than by compelling each to live as seems good to the rest.").
[26] Stanley Ingber, Rediscovering the Communal Worth of Individual Rights: The
First Amendment in Institutional Contexts, 69 Tex. L.Rev. 1, 28-30 (1990).
[27] . See, e.g., Laurence Tribe, American Constitutional Law @15-1, 1302 (2d
ed. 1988); Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale. L.J.
943, 946 (1987); John S. Mill, On Liberty 13 (A. Castell ed. 1947) (noting that
mankind gains more by "suffering each other to live as seems good to themselves,
than by compelling each to live as seems good to the rest.").
[28] . Stanley Ingber, Rediscovering the Communal Worth of Individual Rights:
The First Amendment in Institutional Contexts, 69 Tex. L. Rev. 1 (1990).
[29] . See, e.g., Ronald Dworkin, Taking Rights Seriously (1977), Freedom's Law,
The Moral Reading of the American Constitution (1996).
[30] See Stanley Ingber, Rediscovering the Communal Worth of Individual Rights:
The First Amendment in Institutional Contexts, 69 Tex. L. Rev. 1 (1990).
[31] .Id.
[32] Thomas Streeter, Beyond Freedom of Speech and the Public Interest: The
Relevance of Critical Legal Studies to Communications Policy, 40 J. Comm. 43,
60, 61 (1990).
[33] Streeter, at 48 (1990). See also Stanley Ingber, Rediscovering the
Communal Worth of Individual Rights: The First Amendment in Institutional
Contexts, 69 Tex. L. Rev. 1 (1990) (arguing the interactivity and
complementarity of social and individual values and definitions).
[34] Streeter, at 49 (1990).
[35] Streeter, at 51 (1990).
[36] The list of cases was drawn from the 277 cases identified by Elizabeth
Banks Hindman, Rights vs. Responsibilities 159-174 (1997) supplemented by a
keyword search of Lexis-Nexis for the years 1997 and 1998.
[37] M. Mark Miller, User's Guide To VBPro: A Program For Qualitative and
Quantitative Analysis of Verbatim Text (1993).
[38] See, e.g., Samuel C. Dyer, M. Mark Miller & Jeff Boone, Wire Service
Coverage of the Exxon Valdez Crisis, 17(1) Public Relations Rev. 27-36 (1991);
M. Mark Miller & Julie Andsager, Protecting First Amendment?: Newspaper coverage
of hate speech, 18(3-4) Newspaper Res. J. 2-15 (1997); M. Mark Miller & Bryan
Denham, Reporting Presidential Election Polls in 1988 and 1992: Horserace and
Issue Coverage in Prestige Newspapers, 15(4) Newspaper Res. J. 20-28 (1994).
[39] 92 S.Ct. 1860, 406 U.S. 551 (1972).
[40] 116 S.Ct. 2374, 518 U.S. 727 (1996).
[41] FCC v. League of Women Voters of California, 104 S.Ct. 3106, 468 U.S. 364
(1984) (allowing the FCC to deregulate broadcast program format to the
determination of the marketplace).
[42] The Obligations cluster also peaks in CBS v. Democratic Nat'l Comm., 93
S.Ct. 2080, 412 U.S. 94 (1973) and Red Lion Broadcasting v. FCC, 89 S.Ct. 1794,
395 U.S. 367 (1969).
[43] 89 S.Ct. 1794, 395 U.S. 367 (1969).
[44] 93 S.Ct. 2080, 412 U.S. 94 (1973).
[45] 101 S.Ct. 1266, 450 U.S. 582 (1981).
[46] 101 S.Ct. 2813, 453 U.S. 367 (1981).
[47] 104 S.Ct. 3106, 468 U.S. 364 (1984).
[48] 101 S.Ct. 1266, 450 U.S. 582 (1981).
[49] 101 S.Ct. 2813, 453 U.S. 367 (1981).
[50] 104 S.Ct. 3106, 468 U.S. 364 (1984).
[51] 93 S.Ct. 2080, 412 U.S. 94 (1973).
[52] 98 S.Ct. 2096, 436 U.S. 775 (1978)(upholding the newspaper/broadcast
cross-ownership ban); 97 S.Ct. 2849, 433 U.S. 562 (1977)(upholding liability for
news broadcast of an entire performance as appropriation).
[53] 98 S.Ct. 3026, 438 U.S. 726 (1978).
[54] Id. at 738.
[55] 63 S.Ct. 997, 319 U.S. 190 (1943).
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