The Legal Realist Approach
In her book, Inventing American Broadcasting, Susan Douglas provides a social constructivist approach to the radio in order to avoid an approach characterized by technological determinism. Determinism may certainly be avoided by advocating an approach that permits for more than one possible outcome. However, I do not believe that an approach should be adopted simply because it is NOT another approach. I hope that Douglas employed her approach because she believed that it was the best method, and not merely because of its stark contrast to technological determinism. I will attempt to avoid this binary in constructing my own approach, using Douglas’s materials, and where appropriate explaining further evidence that supports my argument. I label my method the legal realist approach because of its close connection with legal realism, although readers not acquainted with this school of thought may recognize its similarity to political economy studies of communication.
The first noticeable difference between our approaches would be that almost all of Douglas’s work would be condensed into a chapter, or perhaps a few opening pages. As a legal realist, I would not be particularly interested in the inventors, their wives, or their coverage in newspapers. I would want to provide basic facts about the creation of radio technology, and would include some information cited by Douglas. For example, I would want to mention Marconi’s name, and the America’s cup race (Douglas xvi-xvii) perhaps as an attention getter. However, I would likely frame most of Douglas’s work based on the intellectual property disputes between the inventors. For example, I would be interested in AT&T interaction with Lee De Forest (Douglas 244) and would emphasize how his lack of financial resources led to his agreement with AT&T.
Likewise, I would mention the first radio regulations. I would explore the Titanic disaster, but would suggest that Congress realized it was an election year, and responded to the Titanic disaster in order to win votes (Douglas 226). However, the first radio regulations would not be fully explored in my book. As a legal realist, I would cite these legal issues as background information. I would primarily be concerned with legal strategies that could modify the current law, and quite frankly I wouldn’t see the early regulations of radio as that important. I would think that radio was more similar to a telephone or telegraph at this time, and that the legal authority of these laws is fairly irrelevant, since radio is now a broadcast medium and as a legal realist, I am primarily interested in the current situation. I am interested in the past because of its practical and pragmatic influence on the future.
Finally, my work would begin at the point where Douglas’s ends. I would focus my primary attention to the figure of Herbert Hoover and the actions taken in Congress that led to the passage of the Radio Act of 1927 and the Communications Act of 1934. I would begin by exploring how Herbert Hoover personally influenced the development of radio and how these decisions were guided by Hoover’s psyche, his personal belief in the value of commerce and business. I would emphasize the small amount of concern expressed for amateur operators. This would be explained by their lack of power and perhaps an inability to organize due to their youth and geographic disparity. I would then closely analyze the proceedings that led to the formation of the Communications Act of 1934, and cite examples that demonstrate the political power of large corporations. Likewise, I would spend a great deal of time addressing the formation of RCA (Douglas 284-286) and would emphasize that the United States government participated in the formation of a monopoly, and that the members of this monopoly contributed heavily to members of Congress. I would then briefly explore the legal developments that have affected radio up until the present. I would continue my trope about the influence of corporations in American politics and law, and I would cite more recent examples that demonstrate the continuity of the shady dealings that led to the creation of the Communications Act of 1934.
Like Douglas, I would argue that the fate of radio was not inevitable, and that many other outcomes existed. However, I would emphasize the institutional political and economic factors that led to the establishment of the current regime. I would portray individuals more from a psychological or Machiavellian perspective than a social perspective. Unlike Douglas, I would have little interest in press coverage of the radio, and would only view the press as a potential legal and economic actor rather than a creator of discourse and norms. I would almost certainly conclude my book, or perhaps even each chapter of my book, by connecting the history of radio to the modern situation related to the Internet. I would emphasize that the Internet has not yet been foreclosed by the law and that we, like humans in the early 1920’s, live in a period of growth and change. I would urge that members of the world community take action in order to prevent a repeat of the Communications Act of 1934 for the Internet. I also would likely emphasize that the Communications Act of 1934 is terrible and should be reformed but would contend that this type of reform is very difficult because the players have already been institutionalized and now possess a great deal of power. I would then return to the Internet and urge the reader to reform now, before a corporate Internet is institutionalized in the law.
For an excellent example of the legal realist approach, and to gain insight into copyright and patent law in general, I recommend Jessica Litman's book Digital Copyright, which has recently been updated.
References to Douglas are to her evidence, and do not reflect her arguments.