The Modern Scenario

In direct opposition to the classical scenario, the modern scenario ¹¹⁷ rejects virtually any legal distinction based on the method of communication as contrary to first­amendment principles. Although it purports to acknowledge that the operation of new electronic technology has implications for first­ amendment doctrine, the modern scenario does not recognize any dissimilarities in the effect of different media types, or any evils that may be special to commercial television. Espousing "libertarian"' and "laissez­faire"' notions, the modern program dictates a policy of "hands­off"' government. Fixated upon Orwellian fears to the exclusion of all others, the modern scenario highlights the perils of any governmental control of the electronic media.

Perhaps the most highly regarded director of this scenario was the late political science professor, Ithiel de Sola Pool. For the modernist, the "degrading erosion of freedom that our system of communication faces today"' ¹¹⁸ is alarming:

It would be dire if the laws we make today governing the dominant mode of information handling in . . . an information society were subversive of its freedom. The onus is on us to determine whether free societies in the twenty­ first century will conduct electronic communication under the conditions of freedom established for the domain of print through centuries of struggle, or whether that great achievement will become lost in a confusion about new technologies. ¹¹⁹

The modernist ¹²⁰ maintains that two phenomena require the extension of first­amendment protection to the electronic media: ¹²¹ first, the increasing use of the same physical apparatuses (wires, cables, airwaves) and technological formats (telegraph, telephone, television) for electronic communication; ¹²² and, second, the growing cross­ownership in communications industries. ¹²³

These two developments have fostered a "convergence of modes"' that undermines the long­honored rationales for special governmental control of electronic media. ¹²⁴ Moreover, the modernist argues that "[t]he extension of electronic means to do better and faster what the older modes of communication did with lead, ink, and paper"' requires that the modern electronic format receive a "newer tradition"' of protection from governmental control equal to that developed over the centuries for the press. ¹²⁵ In the modern first­amendment society, any official campaign to combat Huxleyan evils through governmental regulation paves the way of tyranny.