1. In 1969, this Court held in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), that the First Amendment permits the government to restrict the speech of broadcasters in ways that this Court would never tolerate in other media. This Court based the distinction on the view that at the time, only broadcasters—and only a handful of broadcasters, at that—could reach American families in their living rooms. Now millions of speakers can reach American families in their living rooms, and just about everywhere else, with almost unlimited audiovisual content. Should this Court overrule Red Lion’s outdated rationale for diminishing the First Amendment protection of broadcasters?
2. At a minimum, in light of this Court’s decision in Citizens United v. FEC, 558 U.S. 310 (2010), applying strict scrutiny to bans on paid political messages that are “broadcast,” does strict scrutiny apply to laws prohibiting broadcasters from transmitting paid political messages?
3. Consistent with the prevailing approach in the courts of appeals, does a ban on speech fail intermediate scrutiny if the only evidence before Congress supposedly linking the ban to the interest that the government seeks to advance consists of guesswork lacking any concrete factual support?
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