Do audiences need the government's protection from mass media? Or are they capable of choosing media and protecting themselves? For decades, judicial opinion on this issue developed in the form of judicial notice, speculation, and assumption. Yet during that time, a rich social science discipline was emerging that could have helped to address these issues based on empirical research about mass media effects and audiences. Given the renewed importance of this issue, it is time to bridge the gap between the law of mass media content regulation and the social science research into mass media consumption.
To that end, this article presents an interdisciplinary critique of the law's assumptions about the effects of mass media on the audience, the nature of that audience, and how those assumptions have shaped First Amendment doctrine. Part I reviews important First Amendment rulings concerning content regulation of electronic media, as well as analogous cases involving non-broadcast speech. The goal is to identify the judicial assumptions used to justify giving less First Amendment protection to broadcasting than to other media. Part II critiques these assumptions against the conclusions of social science theorists who have been studying the question of mass communications effects and audiences since the early twentieth century. This critique shows that most of the law's current assumptions about the nature of mass communications are based on an early, and now discredited, view of mass communications effects known as the "Hypodermic Needle Model." More sophisticated models have since supplanted the Hypodermic Needle Model, which failed to account for the interactive and social dimensions of mass communication. Finally, Part III returns to the question of how new media should be treated under the First Amendment and analyzes the potential impact of the critique presented in Part II on the development of the law of content regulation in the twenty-first century.
The Needle and the Damage Done: The Pervasive Presence of Obsolete Mass Media Audience Models in First Amendment Doctrine,
8 Vanderbilt Journal of Entertainment and Technology Law
Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol8/iss1/2