The Unsettled Law and Policy of Audience Measurement

This’ll be a short entry, as I’m mostly just plugging a new working paper, titled The Local People Meter, the Portable People Meter, and the Unsettled Law and Policy of Audience Measurement in the U.S. This paper will be included as a chapter in a forthcoming book titled Deconstructing the Ratings Machine: Television Audience Measurement Worldwide.

This paper pulls together and updates material not only from Audience Evolution, but from some earlier articles I’ve published on the law and policy issues that have arisen around Nielsen’s introduction of its Local People Meter and Arbitron’s introduction of its Portable People Meter. 

I won’t go into details here surrounding the controversies that have erupted around the introduction of these new audience measurement systems. But what I found particularly interesting about these case studies in the introduction of new audience measurement systems are some of the largely unresolved legal issues that they have raised regarding the fundamental question of what exactly are audience ratings from a First Amendment standpoint.

That is, are audience ratings a form of speech? If so, are they commercial speech or non-commercial speech? Are audience ratings facts or opinions? Obviously, how one answers these questions has dramatic implications for if — or to what extent — government agencies such as the Federal Trade Commission and/or the Federal Communications Commission, or state attorneys general, can regulate the activities of audience measurement firms such as Nielsen and Arbitron.

This paper gets into a fair bit of detail examining the legal arguments on both sides of these questions. This paper also puts forward some tentative conclusions of my own, in which I make what I hope is a compelling case that audience data shouldn’t be considered speech at all from a First Amendment standpoint; but if they are, they should be considered commercial speech at best.

I try to make this case by arguing that audience data represent a category of fact that legal scholars have labeled “created facts” or “social facts.” Social facts are a type of information that is treated as factual by users, even if the information does not meet the traditional definition of a fact. Factual information tends to fall within the commercial speech parameters, while opinions do not. Further, the paper argues commercial databases such as audience ratings fall into a category of information that has long resided outside the realm of First Amendment protection in the regulation the behavior of marketplace participants. There is a long history of the communication of various forms of “data” that are utilized in commercial transactions being regulated and restricted in a variety of ways that have not even triggered First Amendment scrutiny. I try to make the case that data and speech are not necessarily synonymous, and in the case of audience ratings, they should perhaps fall outside the scope of First Amendment protection.

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