by Jessica Ford*
The First Amendment protects the freedom of speech and expression of both individual persons and the media. Generally, the Supreme Court analyzes First Amendment challenges to governmental restrictions on the content of speech by applying heightened scrutiny as the mechanism of constitutional review. In Red Lion Broadcasting Co. v. Federal Communications Commission, however, the Court held that some content-based restrictions on speech are acceptable in broadcasting because of the limited availability of spectrum space, or the frequencies in the electromagnetic spectrum used to transmit audio and audiovisual content. This “scarcity rationale” has subjected broadcasters to unique treatment under the First Amendment for decades, but dramatic changes in technology and media consumption—most notably the rise of multicast streaming, cable television, and digital streaming platforms—call its modern-day validity into question. This Contribution reexamines the foundations of Red Lion and argues that the Court’s 1969 reasoning cannot be squared with today’s vastly expanded and distinct media environment.