Proactive Legislation and the First Amendment

It is a commonplace that the world is changing rapidly, with whole sectors of the economy being transformed. New forms of communication, like the World Wide Web, e-mail, and satellite television, have risen from obscurity to ubiquity in less than a decade. The speed of these changes has led some to express concern about the ability of governments to respond. The fear is that governments cannot keep up with developments as they occur and thus get hopelessly behind. The solution, according to some, is for the government to act proactively – before a harm has arisen, so that the government can push developments along the appropriate path and avoid problems before they occur. Indeed, there have been many calls for such legislation. Concern about the government’s ability to keep pace with marketplace innovation is not new. James Landis, the central figure in the structuring of administrative agencies in the New Deal era, argued that unless legal constraints on agency action were reduced, the government would not be as nimble as private actors and therefore would find itself outmaneuvered and overwhelmed; he considered it essential that government be organized to act with the same rapidity as industry, so that it could shape the course of events. More recently, some have expressed fear (or hope, depending on their perspective) that the rapid pace of technological developments will overwhelm the government’s ability to respond to them.