# Roberts, Scalia oppose the invisible hand of the market **URL:** \ **Category:** Great Debates\ **Created:** [January 11, 2012, 1:25am UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113 "2012-01-11T01:25:24Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [January 12, 2012, 8:40pm UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/41 "2012-01-12T20:40:43Z")
> [@Fear\_Itself](#): > > I did not mean to suggest his argument was unconstitutional; only that it did not address the constitutionality of the law in question. I’m going to presume if/when the SCOTUS rules and publishes its decision the decision won’t be a brief paragraph saying “We uphold the ability of the FCC to regulate content deemed obscene because the Chief Justice doesn’t want his kids watching Cinemax-style porn on broadcast TV while he’s at work.” ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 12, 2012, 8:42pm UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/42 "2012-01-12T20:42:04Z")
It would be pretty funny if they did, though. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [January 12, 2012, 9:57pm UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/43 "2012-01-12T21:57:55Z")
> [@](#): > > Quoth **Musicat** : > The “public owns the airwaves” theory was brought forward years ago as a derivative of scarcity. Only so much broadcasting space to go around, so the government must parcel it out. > > That was before cable, the Internet, digital broadcasting and other technologies that broadened the available space so greatly that a scarcity argument no longer works. > > Maybe it’s time to revisit the “public owns the airwaves” concept. Why should the public ownership be applied only to that and not, say, all cable channels or apple orchards? The public airwaves are just as scarce as they’ve always been, and absent us suddenly discovering that everything we thought we knew about information theory is false, they always will be that scarce. We’re talking fundamental mathematical limits, here. Cable is not scarce, since you can always just lay down more cables. > [@](#): > > Quoth **user\_hostile** : > They’ll muddle through and issue some kind of ruling which gives ABC some sort of legal booby prize,… Isn’t legal boobies exactly the prize that ABC wants? 😉 ---
**Author:** ![Musicat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/musicat/32/20189_2.png) [@Musicat](https://boards.straightdope.com/u/Musicat)\ **Post date:** [January 12, 2012, 10:51pm UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/44 "2012-01-12T22:51:06Z")
> [@Chronos](#): > > The public airwaves are just as scarce as they’ve always been, and absent us suddenly discovering that everything we thought we knew about information theory is false, they always will be that scarce. We’re talking fundamental mathematical limits, here. That’s what an engineer friend of mine said about 2400 baud modems on POTS lines. No way, he said, could they go any faster, due to fundamental mathematical limits. I think he was wrong. 🙂 When single sideband was developed, the number of channels that would fit into the same airspace was doubled. Digital transmission increases it even more, although I don’t know how much, and there is a tradeoff with several factors. In fact, I recall our local County Board IS Dept. telling us recently how the feds were forcing all the emergency services to toss out and replace all their radio equipment about every 7 years, as the number of channels that could be carried in the same frequency spectrum was doubling each time and the old equipment became obsolete. So no, scarcity is far from fixed and there is no end in sight. No, the airwaves, if information is defined as bandwidth, have expanded considerably and they are not as scarce as in, say, 1920. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 13, 2012, 3:01pm UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/45 "2012-01-13T15:01:33Z")
So what? They are still limited. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [January 13, 2012, 3:15pm UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/46 "2012-01-13T15:15:22Z")
Exactly, engineers have found ways to get more out of standard copper wire telephone lines (I don’t know if it has been commercialized in the U.S. but I read an article in which they’ve even gotten 50 MBit/s and higher speeds through modified DSL on ordinary phone lines), just as engineers have found ways to get more out of the spectrum and use it more efficiently. That’s still akin to saying oil isn’t a limited resource because we have more fuel efficient cars today than we did 50 years ago, that’s hogwash. Of course, _it has never_ been the case that we had public ownership of the airwaves because of scarcity. All commodities are scarce, even renewable resources like timber and agricultural products are scarce, because the production of those renewable resources has limitations. No, we have public ownership of the airwaves because it is a **quasi-public good**. A public good is non-rival and non-excludable. Air is non-rival because my consumption of air doesn’t limit your ability to consume air, and it is non-excludable because I can’t prevent you from breathing air until after you’ve paid a fee. Public goods are traditionally managed or regulated by government because the free market is ill equipped to handle them. It’s difficult/ impossible to commercialize air, but it is possible to ruin the air for everyone, and because no one feels individual ownership responsibility for the air people are unlikely to be good shepherds of the air on their own initiative. That’s why we have an EPA. Spectrum isn’t a “perfect” public good (in fact maybe nothing is), but it is clearly a quasi-public good and without government ownership and regulation it would be difficult for the commercialization and ordinary use of the spectrum. We regulate or control lots of quasi-public goods (police, education, roads), and spectrum is similar to all of those. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 13, 2012, 4:52pm UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/47 "2012-01-13T16:52:32Z")
> [@Musicat](#): > > That’s pretty much Scalia’s argument for anything. If Congress says it, he treats that as the last word. Really? Is that what he did in _Kyllo_? Is that what he did in _Printz_? Is that what he did in \*Morrison v. Olson[/]? Is that what he did in … well, how many do you need? He treats the Constitution as the last word. And by word, he (and I) mean the actual words, written on the document. If the Constitution gives Congress the power to do something, then, yes, if Congress does it, Scalia concludes they have the power to do it. ---
**Author:** ![BeaMyra](https://avatars.discourse-cdn.com/v4/letter/b/2bfe46/32.png) [@BeaMyra](https://boards.straightdope.com/u/BeaMyra)\ **Post date:** [January 15, 2012, 10:16am UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/48 "2012-01-15T10:16:09Z")
TV and cable are not free markets. There are only so many TV stations in a market and usually only one cable franchise per city. Dish and U-Verse/VIOS are only in place where the profit is great and even so, they aren’t cable competitors, but alternatives. A free market does bring about good things but the market has to be really free. But you can’t just start a TV station or start a cable company, even if you have millions. Thus you need some sort of oversight ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [January 15, 2012, 1:16pm UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/49 "2012-01-15T13:16:21Z")
> [@BeaMyra](#): > > TV and cable are not free markets. There are only so many TV stations in a market and usually only one cable franchise per city. Dish and U-Verse/VIOS are only in place where the profit is great and even so, they aren’t cable competitors, but alternatives. > > A free market does bring about good things but the market has to be really free. But you can’t just start a TV station or start a cable company, even if you have millions. Thus you need some sort of oversight Why would such oversight extend to content though? Limited bandwidth only requires the administration of licenses, not rulings on nipple slips. ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [January 15, 2012, 3:37pm UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/50 "2012-01-15T15:37:24Z")
> [@Fear\_Itself](#): > > Why would such oversight extend to content though? Limited bandwidth only requires the administration of licenses, not rulings on nipple slips. And that’s fine when it comes to Pay-TV where the individual can enter into a contract with the supplier wherein they could agree on what content they wish to receive. But with over-the-air broadcast being freely and openly available to any person who shows up with the appropriate receiver, then _the body public is its owner, and owners are entitled to decide what is or is not done in or with their property_. ---
**Author:** ![BSweet69](https://avatars.discourse-cdn.com/v4/letter/b/e9bcb4/32.png) [@BSweet69](https://boards.straightdope.com/u/BSweet69)\ **Post date:** [January 15, 2012, 3:43pm UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/51 "2012-01-15T15:43:20Z")
> [@Fear\_Itself](#): > > Sure, one would expect the liberals to support big government control of the markets; there is no hypocrisy there. But how do the conservatives justify it? I am quite liberal, and I believe in Freedom to choose for oneself. Where do you get the notion that “liberals” are interested in what you want to look at? Sounds to me like you are spouting due to your own personal feelings, which have everything to do with you, and nothing to do with anything else. Get over it. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [January 15, 2012, 4:41pm UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/52 "2012-01-15T16:41:01Z")
> [@JRDelirious](#): > > And that’s fine when it comes to Pay-TV where the individual can enter into a contract with the supplier wherein they could agree on what content they wish to receive. But with over-the-air broadcast being freely and openly available to any person who shows up with the appropriate receiver, then _the body public is its owner, and owners are entitled to decide what is or is not done in or with their property_. I think it is significant to note that [91% of American households receive television broadcasting via cable or satellite systems](http://www.nytimes.com/2010/02/28/business/economy/28view.html?scp=1&sq=thaler&st=cse), yet the FCC governs the content of those networks who still maintain over-the-air (OTA) broadcasts. This is expected to increase in the coming years, as more and more people get cable instead of antennae. If 9% is still enough to grant censorship powers to the feds, at what level is it overreaching? 5%? 2%? Or must we wait until networks abandon OTA broadcasts altogether to get out from under the federal thumb? This raises another issue; if the feds can control content for OTA television, can they control the content of OTA internet access? What if children see porn on a broadband iPad? Parts of the same spectrum that was used for analog TV have be auctioned off in recent years to be used for cell phones and broadband internet; do you want the feds to regulate content there also? After all, it belongs to the people, just like television broadcast spectrum. What is the difference? ---
**Author:** ![RickJay](https://avatars.discourse-cdn.com/v4/letter/r/bb73d2/32.png) [@RickJay](https://boards.straightdope.com/u/RickJay)\ **Post date:** [January 15, 2012, 4:50pm UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/53 "2012-01-15T16:50:22Z")
> [@Fear\_Itself](#): > > I think it is significant to note that [91% of American households receive television broadcasting via cable or satellite systems](http://www.nytimes.com/2010/02/28/business/economy/28view.html?scp=1&sq=thaler&st=cse), yet the FCC governs the content of those networks who still maintain over-the-air (OTA) broadcasts. This is expected to increase in the coming years, as more and more people get cable instead of antennae. If 9% is still enough to grant censorship powers to the feds, at what level is it overreaching? 5%? 2%? Or must we wait until networks abandon OTA broadcasts altogether to get out from under the federal thumb? A very good question. And it isn’t one for the Supreme Court to decide in this case. I really don’t understand where the confusion lies. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [January 15, 2012, 4:55pm UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/54 "2012-01-15T16:55:34Z")
> [@RickJay](#): > > A very good question. > > And it isn’t one for the Supreme Court to decide in this case. > > I really don’t understand where the confusion lies. What confusion? Roberts thinks controlling content is somehow a constitutional argument. I disagree. No confusion. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [January 15, 2012, 5:12pm UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/55 "2012-01-15T17:12:46Z")
> [@Fear\_Itself](#): > > What confusion? Roberts thinks controlling content is somehow a constitutional argument. I disagree. No confusion. Since the decision was unanimous, I don’t think you have much of a leg to stand on. There has never been a time when the court said content on the airwaves cannot be regulated. No confusion. ---
**Author:** ![RickJay](https://avatars.discourse-cdn.com/v4/letter/r/bb73d2/32.png) [@RickJay](https://boards.straightdope.com/u/RickJay)\ **Post date:** [January 15, 2012, 5:22pm UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/56 "2012-01-15T17:22:12Z")
> [@Fear\_Itself](#): > > What confusion? Roberts thinks controlling content is somehow a constitutional argument. I disagree. No confusion. Controlling content IS a Constitutional argument, in the sense that the Constitution, based on a multitude of previous decisions, **gives Congress the power to regulate content.** If you don’t like that, fine. I don’t necessarily disagree with you. But Congress does presently have the power to do it. It’s well established in precedent, in law, in the wording of the Constitution, and to a large extent in common sense and an acknowledgement that the government has a natural role to play in the assignment of public goods. There is nothing hypocritical about the Supreme Court acknowledging that Congress is allowed to do this, whether the justice is liberal or conservative. Claiming this is an issue of someone hypocritically denying the value of “the invisible hand” is just nonsense. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [January 15, 2012, 5:23pm UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/57 "2012-01-15T17:23:04Z")
> [@John\_Mace](#): > > Since the decision was unanimous, I don’t think you have much of a leg to stand on. What decision are you talking about? The latest case I cited has not been decided yet, they just heard oral arguments. Is SCOTUS in the habit of granting cert to cases without a leg to stand on? Anybody want to take swing at federal control of content of broadband internet? Anyone? ---
**Author:** ![smiling\_bandit](https://avatars.discourse-cdn.com/v4/letter/s/e9a140/32.png) [@smiling\_bandit](https://boards.straightdope.com/u/smiling_bandit)\ **Post date:** [January 15, 2012, 5:29pm UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/58 "2012-01-15T17:29:31Z")
> [@Fear\_Itself](#): > > What decision are you talking about? The latest case I cited has not been decided yet, they just heard oral arguments. Is SCOTUS in the habit of granting cert to cases without a leg to stand on? Yes, it sometimes does, when it wants to clarify a certain issue, or simply resolve it for everyone. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [January 15, 2012, 5:32pm UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/59 "2012-01-15T17:32:36Z")
> [@Fear\_Itself](#): > > What decision are you talking about? The latest case I cited has not been decided yet, they just heard oral arguments. Is SCOTUS in the habit of granting cert to cases without a leg to stand on? You’re right. I somehow confused that with the religious exception case they just decided. My bad. Still, I would not be surprised to see this one decided unanimously either, or at least by a clear majority. At worst, the court could require the FCC to clarify it’s rules, but it would absolutely not eliminate all rules on constitutional grounds. There is no precedent for anything remotely like that. ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [January 15, 2012, 5:36pm UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/60 "2012-01-15T17:36:02Z")
> [@Fear\_Itself](#): > > So the social importance of the purity of broadcast television is more important than freedom of speech, or the free market? Where is their dedication to upholding the constitution now? Cognitive dissonace is such a bitch. Since the argument revolves around public property such as the broadcasting bandwidth, and what you’re allowed to do with it, the cognitive dissonance of trying to tie it to “invisible hand of the market” is all yours. [Previous page](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113.md?page=2) [Next page](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113.md?page=4)