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The Logic of Scarcity: Idle Spectrum as a First Amendment Violation

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dc.contributor.author Benjamin, Stuart Minor en_US
dc.date.accessioned 2009-07-31T14:55:43Z
dc.date.available 2009-07-31T14:55:43Z
dc.date.issued 2002 en_US
dc.date.submitted 2007-08-03 en_US
dc.date.submitted 2007-08-03 en_US
dc.identifier.uri https://hdl.handle.net/10535/2964
dc.description.abstract "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 spectrum from print such that government actions constricting the supply of spectrum would pass muster. "I argue that the scarcity rationale does not support, and instead undercuts, government actions that limit the use of the spectrum. Government decisions that exacerbate the problems that gave rise to government regulation in the first place subvert the entire justification for lenient review. And no other rationale would distinguish spectrum from print in a way that would support government constraints on the former but not the latter. Commentators have not attended to this question of the constitutional status of idle spectrum, perhaps assuming that NBC v. United States and Red Lion Broadcasting Co. v. FCC effectively held that all regulation of spectrum is subject to lenient scrutiny. But the cases did not purport to extend so broadly, and there is good reason to conclude that their lenient review would not apply to government actions reducing the availability of spectrum. The appropriate review, I contend, is the intermediate scrutiny ordinarily applied to content-neutral speech regulation. In order to satisfy such scrutiny, the government must put forward an important or substantial government interest. I suggest that in most cases the only interest that would justify a refusal to allocate spectrum is nontrivial interference. I thus conclude that, even if one accepts the current state of the doctrine, the government cannot exclude noninterfering uses from the spectrum." en_US
dc.subject scarcity en_US
dc.subject radio spectrum en_US
dc.subject global commons en_US
dc.title The Logic of Scarcity: Idle Spectrum as a First Amendment Violation en_US
dc.type Journal Article en_US
dc.type.published published en_US
dc.coverage.region North America en_US
dc.coverage.country United States en_US
dc.subject.sector New Commons en_US
dc.subject.sector Global Commons en_US
dc.identifier.citationjournal Duke Law Journal en_US
dc.identifier.citationvolume 52 en_US
dc.identifier.citationnumber 1 en_US
dc.identifier.citationmonth October en_US
dc.submitter.email efcastle@indiana.edu en_US

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