Media Regulation and Deliberative Democracy

Eric Goldman
Marquette University Law School

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     Last modified: May 16, 2005

Abstract
For citizens to make deliberated decisions, they need to be able to find, identify and exchange views with like-minded citizens. However, in an effort to protect citizens from unwanted communications, various media regulations inhibit the flow of communications that are essential to democratic decision-making.

For example, anti-spam or anti-adware laws can prevent messages from being delivered via specific media. Trademark laws can prevent individuals from picking preferred terms to communicate with each other. Regulations may outlaw certain technologies that efficiently help an individual identify and obtain content based on the individual’s latent interests. These types of regulations may force individuals to pick alternative and more costly ways to communicate, which may blunt the message’s effect or foreclose communication altogether. The distortive effect on decision-making, especially minority interests, can be significant.

To develop an optimal media regulation policy, the paper will offer a new model to consider a recipient’s utility attributable to incoming messages. The paper will use this model to explain and justify three policy principles to shape media regulatory policies without unduly inhibiting deliberative democracy:
· avoid legal impediments to targeting messages to meet recipients’ interests
· encourage filtering content that allows recipients to make efficient predictive judgments of incoming messages
· avoid mandatory labeling laws or other mandatory disclosures that force recipients to process information that they do not find useful