The right of expressive access in first amendment theory: Redistributive values and the democratic dilemma

Northwestern University Law Review

Volumn 93, Issue 4, 1999, Pages 1083-1133

  Redish, Martin H ^a   Kaludis, Kirk J ^a  

^a NONE

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EID: 0347145808     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (249)

1. See, e.g., JOHN STUART MILL, ON LIBERTY (1859); Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) ("[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market. . . .").
2. See, e.g., JOHN STUART MILL, ON LIBERTY (1859); Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) ("[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market. . . .").
3. See, e.g., C. Edwin Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. REV. 964, 974-81 (1978).
4. See OWEN M. FISS, LIBERALISM DIVIDED 9-20 (1996); CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREEDOM OF SPEECH 17-51 (1993); Jerome A. Barron, Access to the Press - A New First Amendment Right, 80 HARV. L. REV. 1641 (1969). See discussion infra text at note 120.
5. See OWEN M. FISS, LIBERALISM DIVIDED 9-20 (1996); CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREEDOM OF SPEECH 17-51 (1993); Jerome A. Barron, Access to the Press - A New First Amendment Right, 80 HARV. L. REV. 1641 (1969). See discussion infra text at note 120.
6. See OWEN M. FISS, LIBERALISM DIVIDED 9-20 (1996); CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREEDOM OF SPEECH 17-51 (1993); Jerome A. Barron, Access to the Press - A New First Amendment Right, 80 HARV. L. REV. 1641 (1969). See discussion infra text at note 120.
7. See FISS, supra note 3, at 9-20; SUNSTEIN, supra note 3, at 17-51; Barron, supra note 3, at 1644-47.
8. See CHARLES E. LINDBLOM, POLITICS AND MARKETS 201-22 (1977); FISS, supra note 3, at 10.
9. See CHARLES E. LINDBLOM, POLITICS AND MARKETS 201-22 (1977); FISS, supra note 3, at 10.
10. See LINDBLOM, supra note 5, at 20-21; FISS, supra note 3, at 10; discussion infra text accompanying notes 65-70.
11. See sources cited supra note 5.
12. See Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969).
13. See Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241 (1974).
14. See Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 (1997) [hereinafter Turner II]; Hurley v. Irish- American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995).
15. See Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 (1997) [hereinafter Turner II]; Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995).
16. See discussion infra Part V.
17. See generally ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM (1960).
18. This is true to a lesser extent, however, than it might have been prior to the recent dramatic advances in communication technology. See discussion infra Part V.
19. See discussion infra Part III.B.
20. See sources cited supra note 3; discussion infra text accompanying notes 119-23.
21. See discussion infra text accompanying note 64.
22. See discussion infra text accompanying notes 99-100.
23. See generally FISS, supra note 3; SUNSTEIN, supra note 3.
24. See, e.g., Vincent Blasi, The Checking Value in First Amendment Theory, 1977 AM. B. FOUND. RES. J. 521, 529-49 (First Amendment designed to check governmental misconduct). See also discussion infra text accompanying notes 117-32.
25. See, e.g., United States v. O'Brien, 391 U.S. 367 (1968); Dennis v. United States, 341 U.S. 494 (1951); Abrams v. United States, 250 U.S. 616 (1919); discussion infra text accompanying notes 128-30.
26. See, e.g., United States v. O'Brien, 391 U.S. 367 (1968); Dennis v. United States, 341 U.S. 494 (1951); Abrams v. United States, 250 U.S. 616 (1919); discussion infra text accompanying notes 128-30.
27. See, e.g., United States v. O'Brien, 391 U.S. 367 (1968); Dennis v. United States, 341 U.S. 494 (1951); Abrams v. United States, 250 U.S. 616 (1919); discussion infra text accompanying notes 128-30.
28. Compare SUNSTEIN, supra note 3 (advocating governmental intervention in order to produce expressive equality) with Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539, 1546 (1988) (attacking legislative process as subject to interest group pressures). See discussion infra text accompanying notes 121-22.
29. Compare SUNSTEIN, supra note 3 (advocating governmental intervention in order to produce expressive equality) with Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539, 1546 (1988) (attacking legislative process as subject to interest group pressures). See discussion infra text accompanying notes 121-22.
30. See discussion infra text accompanying notes 69-70.
31. See id.
32. See discussion infra text accompanying notes 64-65.
33. See discussion infra text accompanying notes 93-174.
34. See discussion infra Part III.C.
35. See source cited supra note 26.
36. See, e.g., Wooley v. Maynard, 430 U.S. 705 (1977); see also West Virginia St. Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).
37. See, e.g., Wooley v. Maynard, 430 U.S. 705 (1977); see also West Virginia St. Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).
38. See cases cited supra note 28.
39. See discussion infra Part III.D.
40. See discussion infra Part II.
41. See discussion infra Part II.
42. See discussion infra Part III.A.
43. See discussion infra Parts III.B-C.
44. See discussion infra Part V.
45. See sources cited supra notes 3, 5.
46. See generally JOHN MAYNARD KEYNES, GENERAL THEORY OF EMPLOYMENT, INTEREST, AND MONEY (1936).
47. See generally ADAM SMITH, A WEALTH OF NATIONS (1799).
48. See DAVID RICARDO, THE PRINCIPLES OF POLITICAL ECONOMY AND TAXATION (1821).
49. David Held, Democracy: From City-States to a Cosmopolitan Order?, in PROSPECTS FOR DEMOCRACY 13, 21 (David Held ed. 1993).
50. CHRISTOPHER PIERSON, MARXIST THEORY AND DEMOCRATIC POLITICS 9 (1986).
51. According to one commentator, under Marxism "[t]he post-capitalist state would not . . . bear any resemblance to a liberal, parliamentary regime." Held, supra note 40, at 22.
52. BENJAMIN I. PAGE, WHO GETS WHAT FROM GOVERNMENT? 2 (1983).
53. Id at 2-3.
54. See, e.g., Baker, supra note 2; MARTIN H. REDISH, FREEDOM OF EXPRESSION: A CRITICAL ANALYSIS 9-86 (1984).
55. See, e.g., Baker, supra note 2; MARTIN H. REDISH, FREEDOM OF EXPRESSION: A CRITICAL ANALYSIS 9-86 (1984).
56. PAGE, supra note 43, at 3.
57. JOHN RAWLS, A THEORY OF JUSTICE 78 (1971).
58. Id. at 101.
59. See Martin H. Redish & Gary Lippman, Freedom of Expression and the Civic Republican Revival in Constitutional Theory: The Ominous Implications, 79 CAL. L. REV. 267, 278-79 (1991)
60. See MEIKLEJOHN, supra note 12, at 27 ("The principle of the freedom of speech springs from the necessities of the program of self-government . . . . It is a deduction from the basic American agreement that public issues shall be decided by universal suffrage.").
61. We should note that the phrase "democratic redistribution" is our own terminology. However, the term accurately describes a theory which has been articulated by a number of modern political theorists.
62. KEITH GRAHAM, THE BATTLE OF DEMOCRACY: CONFLICT, CONSENSUS AND THE INDIVIDUAL 56 (1986).
63. Id. at 56-57.
64. See generally ROBERT A. DAHL, A PREFACE TO ECONOMIC DEMOCRACY (1985).
65. Id. at 60.
66. Id.
67. Id.
68. Id. at 61.
69. Id. at 91 (footnote omitted).
70. A number of years prior to Professor Dahl's suggestion, political scientist Peter Bachrach argued "If the political scientist is to be realistic, he must recognize that large areas within existing so-called private centers of power are political and therefore potentially open to a wide and democratic sharing in decision-making." PETER BACHRACH, THE THEORY OF DEMOCRATIC ELITISM 102 (1967).
71. See id. at 73-75.
72. See discussion supra Part II.B.
73. It is interesting to note that, at certain points in his analysis, Dahl appears to justify his suggested method of democratic redistribution by resort to traditional substantive arguments in support of economic redistribution. See DAHL, supra note 54, at 58 (justifying redistribution on "[a]n elementary principle of fairness: In general, scarce and valued things should be allocated.").
74. The rationale for, as well as the contours and dangers of, such a right of access are examined infra Part III.
75. See discussion supra Parts II.B-C.
76. See, e.g., FISS, supra note 3, at 10 (under the circularity principle, "[v]oters were not actually considering the viability of capitalism, the justness of market distributions, or the structure within which organized labor was allowed to act because . . . of the control exercised by corporate interests over the political agenda."); LINDBLOM, supra note 5, at 201 -02 (noting the danger of "circularity" - the theory that, because of the distorting effect of those possessing economic power, political choices are effectively made by the very economic interests that the system was intended to regulate).
77. See supra Part II.B-C.
78. In this category, we place Lindblom, Fiss, and Sunstein. See sources cited supra notes 3, 5.
79. See, e.g., MARTIN H. REDISH, THE FEDERAL COURTS IN THE POLITICAL ORDER 9-28 (1991).
80. See MEIKLEJOHN, supra note 12, at 27 ("The principle of the freedom of speech springs from the necessities of self-government . . . . It is a deduction from the basic American agreement that public issues shall be decided by universal suffrage.").
81. See discussion supra Part II.
82. While scholarly advocates of a right of access have argued that it is dictated by the First Amendment (see, e.g., Barron, supra note 3), the Supreme Court, in the relatively rare instance in which it has validated use of a right of access, has held only that governmental creation of such a right does not violate the First Amendment. See Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969).
83. While scholarly advocates of a right of access have argued that it is dictated by the First Amendment (see, e.g., Barron, supra note 3), the Supreme Court, in the relatively rare instance in which it has validated use of a right of access, has held only that governmental creation of such a right does not violate the First Amendment. See Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969).
84. See discussion supra Part II.B.
85. See Barron, supra note 3.
86. See FISS, supra note 3; discussion infra Part III.B.
87. See DAHL, supra note 54; discussion supra Part II.B.
88. See sources cited supra note 76. For a detailed attack on this view, see Martin H. Redish & Howard M. Wasserman, What's Good for General Motors: Corporate Speech and the Theory of Free Expression, 66 GEO. WASH. L. REV. 235, 288-91 (1998).
89. See Redish & Lippman, supra note 49, at 280.
90. See MEIKLEJOHN, supra note 12, at 9-27 (First Amendment protects only speech relevant to the political process); Alexander Meiklejohn, The First Amendment is an Absolute, 1961 SUP. CT. REV. 245 (concept of speech related to political process defined broadly).
91. See MEIKLEJOHN, supra note 12, at 9-27 (First Amendment protects only speech relevant to the political process); Alexander Meiklejohn, The First Amendment is an Absolute, 1961 SUP. CT. REV. 245 (concept of speech related to political process defined broadly).
92. See discussion supra Part II.C.
93. FISS, supra note 3.
94. MEIKLEJOHN, supra note 12.
95. See Stephen A. Gardbaum, Broadcasting, Democracy and the Market, 82 GEO. L.J. 373 (1993).
96. See id. at 381.
97. It might be argued that the technological advances embodied in development of the Internet have dramatically altered the ability of private individuals to make such instant nationwide contributions to public debate. Indeed, it should be noted that the overwhelming majority of scholarly and judicial advocacy of a right of access was premised on a communications structure before the Internet was developed. It is our position that development of the Internet significantly reduces the First Amendment pressures for creation of a right of access. See discussion infra Part V. In describing the arguments in support of a right of access at this point, however, we omit any consideration of the Internet's impact.
98. FISS, supra note 3, at 13-14.
99. Barron, supra note 3, at 1641.
100. But see supra note 85; discussion infra Part V.
101. See, e.g., BENJAMIN BAGDIKIAN, MEDIA MONOPOLY (1983). Bagdikian notes that "[t]he total number of corporations that share half or more of the audience in each major medium is sixty-eight," and that "[t]he net result is fifty corporations that share half or more of the audience in the combined major media." Id. at 19, 20. See also id. at 27, 28.
102. Of course, to the extent that the rights of expressive access were premised on the needs of the individual speaker to self-realize, rather than exclusively the interest of either the listeners in self-realizing (as Professor Gardbaum posits) or the collective society in engaging in the function of self-government (as Professor Fiss urges), then the effect of the creation of such a right on the diversity of available information and opinion would be irrelevant. Under an individual self-realization model, the key would be the fact that it is the speaker herself whose expressive opportunities have increased. However, scholarly advocates of the right of expressive access have uniformly focused on the interests of the listeners, either as individuals or as part of a broader self-governing society.
103. See BENJAMIN I. PAGE, WHO DELIBERATES?: MASS MEDIA IN MODERN DEMOCRACY (1996): The absence of dissenting voices in the Times was so nearly total as to make a wholly voluntary explanation quite implausible. In the opinion columns of the New York Times, then, the voices deliberating about war with Iraq failed to be very diverse or representative. . . . . Perhaps the most compelling evidence of constructed deliberation comes from the fact that the entire assemblage of the Times' editorials, op-ed columns, and letters to the editor about Iraq formed a coherent whole . . . . That is to say, while the viewpoints expressed on the editorial and op-ed pages were by no means uniform, they fit together in such a way as to advance the Times' editorial position, and few of them departed very far from it. Id. at 25-26.
104. Professor Fiss, for example, has argued that "[i]n a referendum or election . . . there is every reason to be concerned with the advertising campaign mounted by the rich or powerful, because the resources at their disposal enable them to fill all the available space for public discourse with their message." FISS, supra note 3, at 16. While Professor Fiss provides not the slightest bit of empirical support for such a sweeping and counterintuitive notion, he also argues that speech by the economically powerful may drown out the expression of others, since "in politics, scarcity is the rule rather than the exception," because "[t]he opportunities for speech tend to be limited, either by the time or space available for communicating or by our capacity to digest or process information." Id. at 15-16 (emphasis added). See also J. Skelly Wright, Money and the Pollution of Politics: Is the First Amendment an Obstacle to Political Equality?," 82 COLUM. L. REV. 609, 637 (1982) ("Unchecked political expenditures . . . may drown opposing beliefs . . . .").
105. Serious doubt can be raised about the assumption's validity. See Redish & Wasserman, supra note 77, at 27. We proceed on the argument's assumed validity at this point solely to highlight what appears to be a clear inconsistency in the arguments of many of the scholarly advocates of a right of access.
106. Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No 102-335, § 4, 106 Stat. 1460, 1471 (1992).
107. "In general, a cable operator with 12 or less cable channels shall carry at least three local commercial stations. The cable operator of a cable system with more than 12 cable channels shall carry up to one-third of the aggregate number of channels of such systems in local commercial stations." Id.
108. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) [hereinafter Turner I]; see also Turner II.
109. See Turner II, 520 U.S. at 228-29 (Breyer, J. concurring); Cass R. Sunstein, The First Amendment in Cyberspace, 104 YALE L.J. 1757, 1779 (1995) (defending Turner II in context of cable regulation in part because it provides "an understanding of the hazards of relying on markets alone").
110. See Turner II, 520 U.S. at 228-29 (Breyer, J. concurring); Cass R. Sunstein, The First Amendment in Cyberspace, 104 YALE L.J. 1757, 1779 (1995) (defending Turner II in context of cable regulation in part because it provides "an understanding of the hazards of relying on markets alone").
111. Even if one assumes no limit to the channels available to a cable operator, it is still arguable that the must-carry provisions raise significant First Amendment difficulties. See discussion infra text accompanying notes 124-27.
112. See Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241 (1974) (holding right-of-reply statute unconstitutional).
113. Cf. New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (allowing public officials to sue for defamation chills public debate by deterring criticism of such officials).
114. See discussion supra Part II.B.
115. See discussion supra Part III.A.
116. See discussion supra Part II.A.
117. Professor Barron, for example, seems to focus exclusively on process-oriented concerns traditionally associated with First Amendment theory. See generally Barron, supra note 3. The same could be said of Professor Gardbaum. See generally Gardbaum, supra note 83.
118. SUNSTEIN, supra note 3.
119. Sunstein, supra note 21.
120. See Cass R. Sunstein, Pornography and the First Amendment, 1986 DUKE L.J. 589.
121. As previously noted, Professor Fiss also advocates expressive redistribution on the basis of the enrichment rationale. See discussion supra Part III.A.3.
122. See FISS, supra note 3, at 10.
123. See LINDBLOM, supra note 5, at 201-02.
124. FISS, supra note 3, at 19.
125. See discussion supra Part II.C.
126. For a more detailed analysis of the principle of epistemological humility, see Redish & Lineman supra note 49, at 278-81.
127. Turner I, 512 U.S. 622, 641 (1994).
128. See, e.g., Police Dep't v. Mosley, 408 U.S. 92 (1972).
129. We should note that even in the purely expressive-based context, we find the arguments in support of expressive redistribution on balance to be unpersuasive. See discussion supra text accompanying notes 91-100; infra text accompanying notes 117-85.
130. See, e.g., Barron, supra note 3.
131. See, e.g., FISS, supra note 3.
132. To the extent that government has actually engaged in efforts designed to bring about redistributive justice, of course, the argument of the circularity principle, that control of the political agenda by powerful economic interests precludes adoption of measures designed to bring about distributive justice are significantly undermined. See Redish & Wasserman, supra note 77, at 247-48.
133. See FISS, supra note 3, at 19; SUNSTEIN, supra note 3, at 28-46 (calling for application of New Deal thinking to free speech).
134. See, e.g., Sunstein, supra note 21, at 1545. Sunstein argues that "[t]he general idea that statutory construction should combat characteristic pathologies in regulatory legislation is well-grounded in existing doctrine." See also Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405, 476 (1989).
135. See, e.g., Sunstein, supra note 21, at 1545. Sunstein argues that "[t]he general idea that statutory construction should combat characteristic pathologies in regulatory legislation is well-grounded in existing doctrine." See also Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405, 476 (1989).
136. See Abner Mikva, Foreword: Symposium on the Theory of Public Choice, 74 VA. L. REV. 167, 170 (1988).
137. Jonathan R. Macey, Promoting Public-Regarding Legislation Through Statutory Interpretation An Interest Group Model, 86 COLUM. L. REV. 223 (1986).
138. See discussion supra text accompanying notes 94-98.
139. Sunstein, supra note 97.
140. See, e.g., Turner II, 520 U.S. 180 (1997) (Breyer, J., concurring). Breyer notes that the "basic noneconomic purpose" of the Cable Television Consumer Protection and Competition Act "is to prevent too precipitous a decline in the quality and quantity of programming choice for an ever-shrinking non-cable-subscribing segment of the public," and that the statute "seeks to facilitate the public discussion and informed deliberation that, as Justice Brandeis pointed out years ago, democratic government presupposes and the First Amendment seeks to achieve." Id. at 226-27 (citing Whitney v. California, 274 U.S. 357, 375- 76 (1927) (Brandeis, J., concurring)).
141. See, e.g., Turner II, 520 U.S. 180 (1997) (Breyer, J., concurring). Breyer notes that the "basic noneconomic purpose" of the Cable Television Consumer Protection and Competition Act "is to prevent too precipitous a decline in the quality and quantity of programming choice for an ever-shrinking non- cable-subscribing segment of the public," and that the statute "seeks to facilitate the public discussion and informed deliberation that, as Justice Brandeis pointed out years ago, democratic government presupposes and the First Amendment seeks to achieve." Id. at 226-27 (citing Whitney v. California, 274 U.S. 357, 375-76 (1927) (Brandeis, J., concurring)).
142. See supra text accompanying notes 99-100.
143. Alien and Sedition Act, ch. 58, 1 Stat. 577 (1798) Sedition Act, ch. 74, 1 Stat. 596-97 (1978).
144. Alien and Sedition Act, ch. 58, 1 Stat. 577 (1798) Sedition Act, ch. 74, 1 Stat. 596-97 (1978).
145. See, e.g., Abrams v. United States, 250 U.S. 616 (1919) (involving constitutional challenges to restriction on speech deemed to advocate refusal to assist war effort).
146. See, e.g., Dennis v. United States, 341 U.S. 494 (1951) (upholding convictions of American Communist Party leaders); Gitlow v. New York, 268 U.S. 652 (1925) (application of state criminal statute to socialist expression). See generally ELLEN SCHRECKER, MANY ARE THE CRIMES: MCCARTHYISM IN AMERICA (1998).
147. See, e.g., Dennis v. United States, 341 U.S. 494 (1951) (upholding convictions of American Communist Party leaders); Gitlow v. New York, 268 U.S. 652 (1925) (application of state criminal statute to socialist expression). See generally ELLEN SCHRECKER, MANY ARE THE CRIMES: MCCARTHYISM IN AMERICA (1998).
148. See, e.g., Dennis v. United States, 341 U.S. 494 (1951) (upholding convictions of American Communist Party leaders); Gitlow v. New York, 268 U.S. 652 (1925) (application of state criminal statute to socialist expression). See generally ELLEN SCHRECKER, MANY ARE THE CRIMES: MCCARTHYISM IN AMERICA (1998).
149. See O'Brien v. United States, 391 U.S. 367 (1968). For criticism of the decision, see REDISH, supra note 45, at 106-07.
150. See O'Brien v. United States, 391 U.S. 367 (1968). For criticism of the decision, see REDISH, supra note 45, at 106-07.
151. See Blasi, supra note 19 (emphasizing the value of free speech in checking abuse of power in democratic society); Vincent Blasi, The Pathological Perspective and the First Amendment, 85 COLUM. L. REV. 449 (1985) (positing "pathological perspective" to adjudication of First Amendment disputes).
152. See Blasi, supra note 19 (emphasizing the value of free speech in checking abuse of power in democratic society); Vincent Blasi, The Pathological Perspective and the First Amendment, 85 COLUM. L. REV. 449 (1985) (positing "pathological perspective" to adjudication of First Amendment disputes).
153. See Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241 (1974) (holding unconstitutional Florida right-of-reply statute for newspapers).
154. See Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969), discussed supra note 72.
155. See Thomas W. Hazlett and David W. Sosa, Was the Fairness Doctrine a "Chilling Effect"? Evidence From the Postderegulation Radio Market, 26 J. LEGAL STUD. 279 (1997): [T]he FCC identified certain types of speech as essential to upholding the public interest standard In particular, news and public affairs programming were considered especially important in the interest of maintaining an informed electorate. As the Commission stated in 1949, . . . 'The Commission has consequently recognized the necessity for licensees to devote a reasonable percentage of their broadcast time to the presentation of news and programs devoted to the consideration and discussion of public issues of interest in the community served by the particular station.' . . . This 'overconformity' view of broadcast programming, combined with the perception that informational programming was less profitable than entertainment programming, reinforced the belief that news and public affairs shows would be undersupplied by unconstrained profit-maximizing stations and that regulatory intervention was necessary to correct the problem. To affect broadcasters' programming choices, the Commission developed two principal policy tools. Rules designed to directly change programming decisions, such as the F[airnessl D[octrine], are commonly referred to as content regulation . . . . Content regulation, especially the F[airness] D[octrine], has always walked a constitutional tine line . . . . [T]he Commission never clarified the vague mandates of the Doctrine This raised critical legal implications, as political discretion in enforcing undefined content standards can easily lead to censorship, violating the First Amendment . . . . [The Red Lion] Court upheld the FCC's position that a broadcaster could legally be forced, under the threat of license nonrenewal or revocation, to provide free airtime to a speaker demanding the right to respond to a controversial broadcast. This was deemed permissible, despite the First Amendment's prohibition on laws regulating speech and the press, based on . . . faith in the FCC's assertion that the doctrine increased the overall flow of informational and, most particularly, controversial speech. Id. at 281-85. The Fairness Doctrine was abolished in 1987.
156. As part of this tradition, see Christopher Lydon, Burch Supports Agnew, Shift in FCC Role Seen, N.Y. TIMES, Nov. 15, 1969, at 1 (noting change in "the traditional relationship between the Federal Government and the news media" after new FCC Chairman Dean Burch agreed with Vice President's criticisms of media); Richard L. Madden, Goodell Urges TV Not to Ease Views, N.Y. TIMES, Dec. 3, 1969, at 90 (reporting on speech by Senator Charles Goodell that noted Agnew's criticisms and questioned "whether the Vice President has attempted to use the prestige of his high office to place pressure upon the networks to report the news in a manner more favorable to the Administration"); and Peter Kihss, TV Overreaction on Agnew Cited, N.Y. TIMES, Dec. 29, 1969, at 24 (summarizing debate in which the Speech Association of America's legislative assembly deplored Agnew's attacks as "potentially inducing 'a chilling effect on dissent'" and CBS News President Richard Salant suggested that Agnew had frightened stations when he "reminded broadcasters [that] they were federally licensed").
157. As part of this tradition, see Christopher Lydon, Burch Supports Agnew, Shift in FCC Role Seen, N.Y. TIMES, Nov. 15, 1969, at 1 (noting change in "the traditional relationship between the Federal Government and the news media" after new FCC Chairman Dean Burch agreed with Vice President's criticisms of media); Richard L. Madden, Goodell Urges TV Not to Ease Views, N.Y. TIMES, Dec. 3, 1969, at 90 (reporting on speech by Senator Charles Goodell that noted Agnew's criticisms and questioned "whether the Vice President has attempted to use the prestige of his high office to place pressure upon the networks to report the news in a manner more favorable to the Administration"); and Peter Kihss, TV Overreaction on Agnew Cited, N.Y. TIMES, Dec. 29, 1969, at 24 (summarizing debate in which the Speech Association of America's legislative assembly deplored Agnew's attacks as "potentially inducing 'a chilling effect on dissent'" and CBS News President Richard Salant suggested that Agnew had frightened stations when he "reminded broadcasters [that] they were federally licensed").
158. As part of this tradition, see Christopher Lydon, Burch Supports Agnew, Shift in FCC Role Seen, N.Y. TIMES, Nov. 15, 1969, at 1 (noting change in "the traditional relationship between the Federal Government and the news media" after new FCC Chairman Dean Burch agreed with Vice President's criticisms of media); Richard L. Madden, Goodell Urges TV Not to Ease Views, N.Y. TIMES, Dec. 3, 1969, at 90 (reporting on speech by Senator Charles Goodell that noted Agnew's criticisms and questioned "whether the Vice President has attempted to use the prestige of his high office to place pressure upon the networks to report the news in a manner more favorable to the Administration"); and Peter Kihss, TV Overreaction on Agnew Cited, N.Y. TIMES, Dec. 29, 1969, at 24 (summarizing debate in which the Speech Association of America's legislative assembly deplored Agnew's attacks as "potentially inducing 'a chilling effect on dissent'" and CBS News President Richard Salant suggested that Agnew had frightened stations when he "reminded broadcasters [that] they were federally licensed").
159. See O'Brien v. United States, 391 U.S. 367 (1968). See LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW §12-20 (2d ed. 1987) (arguing that speech-related congressional motive would have been easy to ascertain had the Court been willing to examine motive).
160. See O'Brien v. United States, 391 U.S. 367 (1968). See LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW §12-20 (2d ed. 1987) (arguing that speech-related congressional motive would have been easy to ascertain had the Court been willing to examine motive).
161. See O'Brien, 391 U.S. at 377: [W]e think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.
162. See REDISH, supra note 45, at 101-02.
163. See supra text accompanying notes 90-100.
164. See, e.g., Wooley v. Maynard, 430 U.S. 705 (1978); West Virginia St. Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).
165. See, e.g., Wooley v. Maynard, 430 U.S. 705 (1978); West Virginia St. Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).
166. See discussion infra Part III.D.
167. See discussion infra Part III.D.
168. See JACK W. BREHM & ARTHUR R. COHEN, EXPLORATIONS IN COGNITIVE DISSONANCE 271 (1962).
169. Hannah Arendt points out that the totalitarian regimes of the twentieth century were the first of their kind in their total claim on the individual: Yet insofar as individualism characterized the bourgeoisie's as well as the mob's attitude to life the totalitarian movements [of the twentieth century] can rightly claim that they were the first truly antibourgeois parties; none of their nineteenth century predecessors, neither the Society of the 10th of December which helped Louis Napoleon into power, the butcher brigades of the Dreyfus Affair the Black Hundreds of the Russian pogroms, nor the pan-movements, ever involved their members to the point of complete loss of individual claims and ambition, or had ever realized that an organization could succeed in extinguishing individual identity permanently and not just for the moment of collective heroic action. HANNAH ARENDT, THE ORIGINS OF TOTALITARIANISM 313-14 (1958).
170. See id. at 323-24.
171. Commentators have explained this breakdown in the following manner: A slow disintegration affecting all human relations causes mutual distrust so that ordinary people are alienated from one another; all the bonds of confidence in social relationships are corroded by the terror and propaganda, the spying, and the denouncing and betraying, until the social fabric threatens to fall apart. The confidence which ordinarily binds the manager of a plant to his subordinates the members of a university faculty to one another and to their students, lawyer to client, doctor to patient, and even parents to children as well as brothers to sisters is disrupted. The core of this process of disintegration is, it seems, the breakdown of the possibility of communication -the spread, that is, of the vacuum. Isolation and anxiety are the universal result. CARL J. FRIEDRICH & ZBIGNIEW K. BRZEZINSKI, TOTALITARIAN DICTATORSHIP AND AUTOCRACY 136 (2d ed. 1965)
172. See id. at 144.
173. Id. at 143.
174. Id. at 144.
175. Id. at 157.
176. FISS, supra note 3, at 19-20.
177. But see discussion supra Part III.A.
178. See discussion infra Part V.
179. See supra text accompanying notes 144-45.
180. One might of course respond that this concern would be rendered irrelevant were it possible to fashion a right of access that could be invoked only when the expression of the party granted access was not abhorrent or offensive to the party in control of the expressive resource. Whether a workable structural or doctrinal standard could be developed to implement this limitation is open to serious question. Moreover, even if such a standard could be devised, it is important to note that it would dramatically reduce the scope of a constitutionally valid right of access.
181. For example, the negative impact of forced access would presumably be great if Hugh Hefner of Playboy were required to provide access to the Christian Coalition or if arch-Conservative Robert McCormick, founder of the Chicago Tribune, had been required to provide access to the Socialist Party.
182. See C. EDWIN BAKER, HUMAN LIBERTY AND FREEDOM OF SPEECH 219 (1989); Randall P. Bezanson, Institutional Speech, 80 IOWA L. REV. 735, 739 (1995).
183. See C. EDWIN BAKER, HUMAN LIBERTY AND FREEDOM OF SPEECH 219 (1989); Randall P. Bezanson, Institutional Speech, 80 IOWA L. REV. 735, 739 (1995).
184. See generally Redish & Wasserman, supra note 77.
185. That the Supreme Court recognizes the First Amendment right of private corporations against compelled speech - indeed, even against a state-created private right of access - is demonstrated by its decision in Pacific Gas & Elec. Co. v. Public Utils. Comm'n, 475 U.S. 1, 8 (1986) (plurality opinion).
186. See, e.g., Baker, supra note 158.
187. See generally Martin H. Redish & Daryl I. Kessler, Government Subsidies and Free Expression, 80 MINN. L. REV. 543 (1995).
188. See FISS, supra note 3, at 19-20.
189. See supra text accompanying notes 152-57.
190. See supra text accompanying notes 155-57.
191. See supra text accompanying notes 158-60.
192. See Stanley v. Georgia, 394 U.S. 557 (1969).
193. In this sense, Fiss is similar to communitarian political speech theorists who came before him. See MEIKLEJOHN, supra note 12; Robert Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1 (1971). See generally REDISH, supra note 45, at 14-19.
194. In this sense, Fiss is similar to communitarian political speech theorists who came before him. See MEIKLEJOHN, supra note 12; Robert Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1 (1971). See generally REDISH, supra note 45, at 14-19.
195. In this sense, Fiss is similar to communitarian political speech theorists who came before him. See MEIKLEJOHN, supra note 12; Robert Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1 (1971). See generally REDISH, supra note 45, at 14-19.
196. See, e.g., Jean Baechler, Individual, Group, and Democracy, in DEMOCRATIC COMMUNITY: NOMOS 35, 15, 23-24 (John W. Chapman & Ian Shapiro eds., 1993) ("Democracy defined as consensual obedience and delegated power has as its privileged interlocutor the individual, and indeed, more accurately, the individual as person . . . . This statement is self-evident because only free individuals can agree to obey other free individuals who are chosen by them.").
197. See Frank Michelman, Law's Republic, 97 YALE L.J. 1493, 1526-67 (1988): Given plurality, a political process can validate a societal norm as self-given law only if (i) participation in the process results in some shift or adjustment in relevant understandings on the parts of some (or all) participants, and (ii) there exists a set of prescriptive social and procedural conditions such that one's undergoing, under those conditions, such a dialogic modulation of one's understandings is not considered or experienced as coercive, or invasive, or otherwise a violation of one's identity or freedom, and (iii) those conditions actually prevailed in the process supposed to be jurisgenerative. See also Hanna Pitkin, Justice: On Relating Private and Public, 9 POL. THEORY 327, 344-45 (1981): [T]he distinctive promise of political freedom remains the possibility of genuine collective action, an entire community consciously and jointly shaping its policy, its way of life . . . . A family or other private association can inculcate principles of justice shared in a community but only in public citizenship can we jointly take charge of and responsibility for those principles.
198. See Frank Michelman, Law's Republic, 97 YALE L.J. 1493, 1526-67 (1988): Given plurality, a political process can validate a societal norm as self-given law only if (i) participation in the process results in some shift or adjustment in relevant understandings on the parts of some (or all) participants, and (ii) there exists a set of prescriptive social and procedural conditions such that one's undergoing, under those conditions, such a dialogic modulation of one's understandings is not considered or experienced as coercive, or invasive, or otherwise a violation of one's identity or freedom, and (iii) those conditions actually prevailed in the process supposed to be jurisgenerative. See also Hanna Pitkin, Justice: On Relating Private and Public, 9 POL. THEORY 327, 344-45 (1981): [T]he distinctive promise of political freedom remains the possibility of genuine collective action, an entire community consciously and jointly shaping its policy, its way of life . . . . A family or other private association can inculcate principles of justice shared in a community but only in public citizenship can we jointly take charge of and responsibility for those principles.
199. See supra text accompanying notes 99-100.
200. See supra text accompanying notes 144-46.
201. One could conceivably limit the right of access on the basis of whether the views to be expressed are repugnant to the ideological positions taken by the speaker. For reasons examined below, however, such a dichotomy proves to be unworkable. See discussion infra Part IV.D.
202. See Blasi, supra note 19, at 529.
203. See supra text accompanying notes 136-38.
204. See discussion supra Part III.B.1.
205. We should once again emphasize, however, that we nevertheless have serious doubts about the empirical and intuitive support for the view that expressive redistribution through creation of a right of access will, in fact, lead to enrichment of public debate. See supra text accompanying notes 91-102.
206. 395 U.S. 367 (1969).
207. 418 U.S. 241 (1974).
208. See generally Kathleen M. Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413 (1989)
209. Turner I, 512 U.S. at 637-38.
210. Id. at 638. Despite acknowledging the questionable empirical basis of the scarcity rationale, however, the Court has indicated no willingness to reconsider the doctrinal implications of that distinction. Perhaps the reason for such reluctance is the fact that the FCC has itself revoked the Fairness Doctrine, rendering the need to reconsider the scarcity rationale largely hypothetical.
211. Lee C. Bollinger, Freedom of the Press and Public Access: Toward a Theory of Partial Regulation of Mass Media, 75 MICH. L. REV. 1 (1976).
212. See id. at 2-3.
213. See, e.g., FISS, supra note 3; Barron, supra note 3.
214. 447 U.S. 74 (1980).
215. 515 U.S. 557 (1995).
216. See supra text accompanying notes 91-102.
217. See supra text accompanying notes 144-51.
218. See supra text accompanying notes 117-36.
219. See supra text accompanying notes 144-51.
220. In upholding the must-carry provisions, however, the Court in Turner I did not rely on this rationale. To the contrary, the Court expressly found that in selecting which cable channels are to be carried, the cable operator is exercising an editorial function protected by the First Amendment: "There can be no disagreement on an initial premise: cable programmers and cable operators engage in and transmit speech, and they are entitled to the protection of the speech and press provisions of the First Amendment. . . . Through 'original programming or by exercising editorial discretion over which stations or programs to include in its repertoire,' cable programmers and operators 'see[k] to communicate messages on a wide variety of topics and in a wide variety of formats.'" Turner I, 512 U.S. at 636 (quoting Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 494 (1986)) (citation omitted). See also Arkansas Educ. Television Comm'n v. Forbes, 118 S. Ct. 1633, 1639 (1998) ("Although programming decisions often involve the compilation of the speech of third parties, the decisions nonetheless constitute communicative acts."); Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 570 (1995) (a speaker need not "generate, as an original matter, each item featured in the communication" to receive First Amendment protection).
221. In upholding the must-carry provisions, however, the Court in Turner I did not rely on this rationale. To the contrary, the Court expressly found that in selecting which cable channels are to be carried, the cable operator is exercising an editorial function protected by the First Amendment: "There can be no disagreement on an initial premise: cable programmers and cable operators engage in and transmit speech, and they are entitled to the protection of the speech and press provisions of the First Amendment. . . . Through 'original programming or by exercising editorial discretion over which stations or programs to include in its repertoire,' cable programmers and operators 'see[k] to communicate messages on a wide variety of topics and in a wide variety of formats.'" Turner I, 512 U.S. at 636 (quoting Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 494 (1986)) (citation omitted). See also Arkansas Educ. Television Comm'n v. Forbes, 118 S. Ct. 1633, 1639 (1998) ("Although programming decisions often involve the compilation of the speech of third parties, the decisions nonetheless constitute communicative acts."); Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 570 (1995) (a speaker need not "generate, as an original matter, each item featured in the communication" to receive First Amendment protection).
222. In upholding the must-carry provisions, however, the Court in Turner I did not rely on this rationale. To the contrary, the Court expressly found that in selecting which cable channels are to be carried, the cable operator is exercising an editorial function protected by the First Amendment: "There can be no disagreement on an initial premise: cable programmers and cable operators engage in and transmit speech, and they are entitled to the protection of the speech and press provisions of the First Amendment. . . . Through 'original programming or by exercising editorial discretion over which stations or programs to include in its repertoire,' cable programmers and operators 'see[k] to communicate messages on a wide variety of topics and in a wide variety of formats.'" Turner I, 512 U.S. at 636 (quoting Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 494 (1986)) (citation omitted). See also Arkansas Educ. Television Comm'n v. Forbes, 118 S. Ct. 1633, 1639 (1998) ("Although programming decisions often involve the compilation of the speech of third parties, the decisions nonetheless constitute communicative acts."); Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 570 (1995) (a speaker need not "generate, as an original matter, each item featured in the communication" to receive First Amendment protection).
223. In upholding the must-carry provisions, however, the Court in Turner I did not rely on this rationale. To the contrary, the Court expressly found that in selecting which cable channels are to be carried, the cable operator is exercising an editorial function protected by the First Amendment: "There can be no disagreement on an initial premise: cable programmers and cable operators engage in and transmit speech, and they are entitled to the protection of the speech and press provisions of the First Amendment. . . . Through 'original programming or by exercising editorial discretion over which stations or programs to include in its repertoire,' cable programmers and operators 'see[k] to communicate messages on a wide variety of topics and in a wide variety of formats.'" Turner I, 512 U.S. at 636 (quoting Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 494 (1986)) (citation omitted). See also Arkansas Educ. Television Comm'n v. Forbes, 118 S. Ct. 1633, 1639 (1998) ("Although programming decisions often involve the compilation of the speech of third parties, the decisions nonetheless constitute communicative acts."); Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 570 (1995) (a speaker need not "generate, as an original matter, each item featured in the communication" to receive First Amendment protection).
224. Claims of access under our public forum precedents could obstruct the legitimate purposes of television broadcasters. Were the doctrine given sweeping application, courts "would be required to oversee far more of the day-to-day operations of broadcasters' conduct, deciding such questions as whether a particular individual or group has had sufficient opportunity to present its viewpoint and whether a particular viewpoint has already been sufficiently aired." Columbia Broad. Sys., Inc. v. Democratic Nat'l Comm 412 U.S. 94, 127 (1973). "The result would be a further erosion of the journalistic discretion of broadcasters," transferring "control over the treatment of public issues from the licensees who are accountable for broadcast performance to private individuals who are not." Id. at 124. In effect, we would "exchange 'pubhe trustee' broadcasting . . . for a system of self-appointed editorial commentators." Id. at 125.
225. See Arkansas Educ. Television Comm'n, 118 S. Ct. at 1639.
226. See supra text accompanying notes 144-51.
227. See supra text accompanying notes 113-16.
228. See also Pacific Gas & Elec. Co. v. Public Util. Comm'n, 475 U.S. 1 (1986) (power company may not constitutionally be required to include in its mailings to consumers inserts prepared by environmental groups). Cf. Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457 (1997) (requiring fruit growers to contribute to payment for governmental advertising campaign does not violate First Amendment because fruit growers were in general agreement with message being conveyed).
229. See also Pacific Gas & Elec. Co. v. Public Util. Comm'n, 475 U.S. 1 (1986) (power company may not constitutionally be required to include in its mailings to consumers inserts prepared by environmental groups). Cf. Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457 (1997) (requiring fruit growers to contribute to payment for governmental advertising campaign does not violate First Amendment because fruit growers were in general agreement with message being conveyed).
230. See supra text accompanying notes 81-91.
231. See Barron, supra note 3, at 1644-47; supra text accompanying notes 88-91.
232. ACLU v. Reno, 929 F. Supp. 824, 830 (E.D. Pa. 1996), aff'd, 521 U.S. 844 (1997). See also Adam R. Kegley, Regulation of the Internet: The Application of Established Constitutional Law to Dangerous Electronic Communication, 85 KY. L.J. 997, 1000 (1996-97): "Physically, the Internet is nothing more than a network of computer networks . . . . Individual computers are linked together through telephone lines and they communicate via modems . . . . Servers are maintained by individuals, companies, and institutions. Internet service providers lease dedicated phone lines from companies that in turn lease lines from telecommunications carriers."
233. ACLU v. Reno, 929 F. Supp. 824, 830 (E.D. Pa. 1996), aff'd, 521 U.S. 844 (1997). See also Adam R. Kegley, Regulation of the Internet: The Application of Established Constitutional Law to Dangerous Electronic Communication, 85 KY. L.J. 997, 1000 (1996-97): "Physically, the Internet is nothing more than a network of computer networks . . . . Individual computers are linked together through telephone lines and they communicate via modems . . . . Servers are maintained by individuals, companies, and institutions. Internet service providers lease dedicated phone lines from companies that in turn lease lines from telecommunications carriers."
234. ACLU v. Reno, 929 F. Supp. 824, 830 (E.D. Pa. 1996), aff'd, 521 U.S. 844 (1997). See also Adam R. Kegley, Regulation of the Internet: The Application of Established Constitutional Law to Dangerous Electronic Communication, 85 KY. L.J. 997, 1000 (1996-97): "Physically, the Internet is nothing more than a network of computer networks . . . . Individual computers are linked together through telephone lines and they communicate via modems . . . . Servers are maintained by individuals, companies, and institutions. Internet service providers lease dedicated phone lines from companies that in turn lease lines from telecommunications carriers."
235. ACLU v. Reno, 929 F. Supp. at 871.
236. Edias Software Int'l v. Basis Int'l, Ltd., 947 F. Supp. 413, 419 (D. Ariz. 1996).
237. See Intermatic, Inc. v. Toeppen, 947 F. Supp. 1227, 1231 (N.D. Ill. 1996).
238. Edias Software, 947 F. Supp. at 419.
239. Heroes, Inc. v. Heroes Found., 958 F. Supp. 1, 4 (D.D.C. 1996).
240. Maritz, Inc. v. Cybergold, Inc., 947 F. Supp. 1328, 1329 (E.D.N.Y. 1996).
241. See supra text accompanying notes 92-157.
242. See supra text accompanying notes 92-100.
243. See supra text accompanying notes 94-99.
244. See supra text accompanying notes 154-57.
245. See, e.g., Pacific Gas & Elec. Co. v. Public Util. Comm'n of California, 475 U.S. 1 (1986).
246. See discussion supra Part IV.D.
247. See discussion supra text accompanying notes 121-27.
248. See discussion supra text accompanying notes 117-39.
249. See id.