Changes in technology and economic power have radically shifted the media landscape in the United States and throughout the world. Despite this, the regulatory model being used was adopted in 1996 at the dawn of the Internet age or inherited from Congress's earlier legislative efforts. This article assesses the constitutional enforcement of existing administrative regulations and addresses the incongruities between the current administrative practices, the public expectations of the government, and the free press for the next generation.Despite a long history of governmental mistrust, the independent press and the self-regulated entertainment industries have had a tremendous role in shaping the culture and economy of the United States. At certain points in United States history, the government has attempted to regulate aspects of the free press and the entertainment media, notwithstanding the constitutional mandate of the First Amendment. The conflict between free speech and free media began early in United States history with the Alien and Sedition Acts passed in 1798. The conflict has played a significant role in the development of defamation laws, privacy laws, intellectual property laws, and telecommunications regulations, including those which led to the formation of the Federal Communications Commission (FCC) and the Patent and Trademark Office (PTO).Perhaps the most notorious example of the effort to regulate news, entertainment, and public expression arose during the operations of the House Un-American Activities Committee (HUAC) and the Senate Government Operations Committee Subcommittee on Investigations led by Senator Joe McCarthy. Through the anti-communist witch-hunts of HUAC and the McCarthy hearings, thousands of entertainers, teachers, and other professionals were fired or imprisoned for their political beliefs.In a series of legislative actions during the 1990s, the federal government sought to regulate the Internet in much the same manner as it had previously sought to regulate motion pictures, comic books, television, trademarks, and the press. The Communications Decency Act and the Child Online Protection Act reflected a broad-based attempt to regulate the Internet, but these laws were found unconstitutional in Reno v. American Civil Liberties Union. The Supreme Court did not strike down section 230 of the Communications Decency Act, which reversed common law privacy and defamation law for online publishers. Similarly, despite the decision in Reno, in the same year, the Supreme Court upheld limited content regulation on broadcast and cable television. Much has changed since 1997, however, including the emergence and dominance of social media publishers such as Facebook, Twitter, YouTube, and other global enterprises that dominate access to journalism, entertainment, and public discourse. These companies regularly run afoul of regulations regarding data privacy and customer disclosure framed under Section 5 of the Federal Trade Commission Act (FTC Act) and similar state laws. In addition, broadcast and cable television systems, regulated under Turner, are becoming Internet streaming and downloading platforms, distributing programs in a format that may radically change the basis on which the Telecommunications Act bases its jurisdiction. This article addresses the change in media and the changing role of the FCC and Federal Trade Commission (FTC). It highlights the trend to exert content and viewpoint control on protected speech and identifies the limited role for administrative agencies going forward.Cite: Jon M. Garon, Constitutional Limits on Administrative Agencies in Cyberspace, 8 Belmont L. Rev. 499 (2021)
