Volume 2000    Issue 3

Enhancing the Spectrum: Media Power, Democracy, and the Marketplace of Ideas

Ronald J. Krotoszynski, Jr.^* & A. Richard M. Blaiklock^**

In their article, Professor Krotoszynski and Mr. Blaiklock assess diversity and broadcast media regulation in contemporary America. First, the authors consider the Federal Communications Commis-sion's regulatory attempts to promote diversity in television and radio broadcasting. The authors discuss the Commission's difficulties in de-fining and characterizing "diversity" and further note some of the in-consistencies inherent in the Commission's dual emphasis on compe-tition and diversity in broadcast programming, also mentioning the threat to democratic values posed by unduly concentrated media ownership. Next, the authors chronicle the burgeoning judicial hostil-ity to race-conscious governmental policies and practices. They dis-cuss the related shift from intermediate scrutiny to strict scrutiny in equal protection jurisprudence and the Commission's frantic efforts to provide justifications for its increasingly endangered race-based di-versity regulations. The authors also examine the need for diversity in programming, both arguing that structural diversity among broadcast media outlets presents the best means of securing ideologically diverse programming and responding to potential objections to structural regulations aimed at securing such diversity. Finally, the authors elaborate on how such structural media regulations do not raise seri-ous equal protection problems and conclude with a reminder that a healthy democracy depends upon a myriad of voices.

* Associate Professor of Law, Washington and Lee University School of Law.

** Associate, Ice Miller. B.A., Hanover College; J.D., Indiana University School of Law-Indianapolis. The views expressed in this article are those of Mr. Blaiklock and not those of his employer.

Ms. Jean Campbell, William and Mary Class of 1999, provided invaluable research assistance on this article. In addition, the faculty at the William and Mary School of Law kindly invited Professor Krotoszyn-ski to present this article incident to a faculty colloquium; the authors gratefully acknowledge the helpful and constructive comments and suggestions offered by William and Mary's faculty. We also appreciate the help-ful comments and suggestions provided by Charles "Buck" Logan and Professors Michael Heise, Gary Spitko, Neal Devins, Alan Meese, Michelle Adams, Dan Cole, Betsy Wilborn Malloy, Lili Levi, and Lyrissa Lidsky on earlier drafts of this article. As always, any errors or omissions are ours alone.