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Television and the Marketplace of Ideas: What Role Will Developments Like TiVo and A La Carte Cable Play In Promoting Free Speech?

Tuesday, Dec. 20, 2005

In its First Amendment precedents, the Supreme Court has idealized what it calls the "marketplace of ideas" -- a virtual marketplace in which ideas compete against each other and where, in theory, truth, and the best ideas, will prevail. In this column, I want to explore how this concept intersects with the economic market for television programming - and some of the innovations in that market, such as TiVo and what is being called a la carte cable, where viewers select what they watch and pay for it program by program, rather than channel by channel.

News and Politics Shows Aren't the Only TV Shows That Contribute to the Marketplace of Ideas

In my opinion, it's far too late in the day to argue that television is mere entertainment, and does not communicate ideas. Easy examples like "The Daily Show," which contain overt political content, abound. But dramas and comedies, too, contain their share of ideas.

Consider Nip/Tuck, which provides a continuing commentary on society's obsession with beauty. Lately, it has featured a serial rapist/slasher, The Carver, whose modus operandi is to disfigure his victims' faces, and whose motto is, "Beauty is a curse on the world. It keeps us from seeing who the real monsters are."

A show need not overtly state an idea, in order to communicate that idea. The Law & Order franchise, for example, tells us, sometimes implicitly and sometimes overtly, that prosecutors and police detectives are good and truth-seeking and honorable: the heroes of the criminal justice system.

Or to take another example, consider this plot choice: Lake Bell's character in Surface, a scientist, left her young son temporarily with her ex-husband - taking flak for her decision -- in order to risk her life making a crucial discovery, and almost died doing it. The writing here doubtless left some viewers feeling uneasy - and may have started some household arguments about gender equality: Would viewers judge Bell's character less harshly for her decision if she were male?

The truth is that ideas are not always debated by speakers behind podiums using formal language. They are just as likely to be debated through the actions and dialogue of characters like The Carver and his victims, or Bell and her angry ex-husband.

And since the average American watches at least four hours of television a day, according to studies - while news program ratings fall - guess which types of debates America is really paying close attention to?

In light of such modern realities, it's worth analyzing whether Americans have access to the programs they want, when they want them, and at a price they can afford. In other words, it's worth asking: Is television's marketplace of ideas becoming a more efficient market?

The Marketplace of Ideas: What It Means, and How It Applies

Justice Oliver Wendell Holmes - in his dissent in the 1919 case of Abrams v. United States -- explained the concept of the "marketplace of ideas," as used in First Amendment jurisprudence: "[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution."

Over time, the ideas in Holmes's dissent have been incorporated into so many Supreme Court majority opinions, that they have become a major component of First Amendment law - and a powerful argument against the suppression of minority views through government censorship.

But these ideas also, in my view, have application outside the First Amendment context. If we agree that the "competition of the market" is the best place to vet ideas, then that competition, it seems, ought to be as efficient as possible. Yet the FCC, lately, has seemed overly concerned with censoring so-called obscenity - an action that itself arguably conflicts with the First Amendment, as I discussed in a prior column.

As Michael Dorf argued in a column on this site yesterday, the supposed justifications for FCC regulation of this type - always weak - have become so tenuous in light of the near-universal availability of "obscene" content through modern technology, that they may be best characterized, to borrow Dorf's word, as "idiotic."

Given the state of modern technology is there still a legitimate role for the FCC? I think the answer is yes. The FCC's modern role ought to be making sure that the market for speech on television properly aligns viewers with the programs (and only the programs) - and thus, the ideas -- they want to see and hear, and with ensuring that viewers have a variety of payment options to give them the greatest possible access and flexibility. And fortunately, the FCC itself, it seems, may have begun to embrace this role - by coming out, recently, in support of a la carte cable.

The "Captive Audience" Problem: Partially Solved by TiVo and A La Carte Cable

What are the inefficiencies in the current market? Just as Supreme Court First Amendment doctrine loves the "marketplace of ideas," it hates a "captive audience" - an audience forced to listen to speech it doesn't want to hear. And yet, when viewing commercials was the inevitable price of watching television programs, that was just what viewers were: A "captive audience." (So are moviegoers who must sit through the commercials that many theaters are running prior to movie showings nowadays.)

In contrast, TiVo - a digital video recording service -- makes the audience a lot less captive. Now, a viewer with TiVo (or a TiVo competitor) can fast-forward (or, with an easy fix, use a thirty-second-skip) through saved programs in order to avoid commercials.

TiVo also has made inroads into the tyranny of the time slot. Viewers often have complained that networks pit their favorite shows against each other - and prior to TiVo, that there was no way to solve this conflict, nor any way to solve the conflict of a TV show with other activities, but to use a cumbersome VCR that few could figure out how to program.

Importantly, these conflicts aren't just annoyances: They're also harmful to the marketplace for ideas. That was obvious when viewers had to choose between news shows - or had to miss them entirely due to another commitment. But, as I argued above, comedies and dramas communicate ideas too, often powerfully.

To provide a little perspective, having to choose between your two favorite restaurants because they're across town from each other is simply an annoyance and an inconvenience. But having to choose between two shows you want to watch, because they share a time slot, is also a harm to the marketplace of ideas.

Like TiVo, a la carte cable - that is, the chance to pay by program, rather than paying for access to all of a particular channel's offerings - also contributes to solving the "captive audience" problem: Without a la carte cable, to watch some of a cable channel's programs, you must pay for all programs on that channel, as well as all other programs on all other basic cable channels, whether you watch them or not. Without an infinite budget, viewers may be stuck watching programming they don't prefer, but have "already paid for." With respect to that latter program, they are something quite close to a captive audience.

A la carte cable not only eliminates this variant on the "captive audience" problem, it also helps make the market for speech more efficient in another way: By linking a particular show to a particular revenue stream, as well as a particular rating, it allows content-producers to know, with greater particularity, what viewers want.

In an efficient market, viewers would pay for the shows - and only the shows -- that they want.

In addition, viewers would always have the choice to pay by watching advertising, or to simply pay money. (One is not truly a "captive audience" if one chooses to watch advertising as a means of payment for programming - and indeed, this option improves the market by giving more access to low-income viewers who might be excluded by pay-to-view systems.)

No one can really know, of course, if Justice Holmes would have applauded TiVo or a la carte cable. And certainly, contrasting television show plots are not quite the equivalent of Justice Holmes's "fighting faiths." But it's worth remembering that the "free trade in ideas" need not be exalted, to be authentic, and that opinions come from many sources other than the Op Ed page of the New York Times.

Julie Hilden, a FindLaw columnist, graduated from Yale Law School in 1992. She practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden's first novel, 3, was published recently. In reviewing 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website,, includes free MP3 and text downloads of the novel's first chapter.

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