First Amendment and Non-Political Speech: Exploring a Constitutional Model That Focuses on the Existence of Alternative Channels of Communication, The

This Article attempts to illustrate how media entertainment speech currently possesses a constitutional advantage over the traditional political speech of physical protest. Part I discusses current First Amendment doctrines relating to permissible types of speech regulation. Although these doctrines claim to be content-neutral, they effectively discriminate against the speech of on-site political protest. Part II examines how this discrimination comes into being. Since many of the constitutional doctrines relating to speech regulation are geared to the place where the speech occurs, these doctrines essentially let media entertainment off the hook, since the vast majority of that entertainment has no place of occurrence. Part III proposes a new First Amendment model that breaks sharply with all existing models. This new model advocates a constitutional distinction between political and non-political speech, with the former receiving the highest protections and the latter receiving a lower protection. According to this model, the regulation of certain non-political speech would be analyzed under the intermediate scrutiny now given to content-neutral time, place, and manner regulations, with particular emphasis on whether alternative avenues for the regulated speech exist. Thus, if a particular kind of non-political media speech is available through many different communications avenues, the regulation of just one of those avenues might not pose constitutional difficulties. This factor becomes especially important when dealing with mass media entertainment, since that form of speech can be conveyed through a near unlimited number of different avenues. Finally, Part IV presents a comprehensive analysis of why political speech should receive a heightened constitutional treatment, as well as why non-political media entertainment harmful to children should occupy a lower constitutional status