Democratic ideals and media realities: A puzzling free press paradox

Social Philosophy and Policy

Volumn 21, Issue 2, 2004, Pages

  Curtis, Michael Kent ^a  

^a WAKE FOREST UNIVERSITY   (United States)

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EID: 3142616921     PISSN: 02650525     EISSN: None     Source Type: Journal    
DOI: 10.1017/S0265052504212122     Document Type: Review

References (218)

1. 283 U.S. 359, 369 (1931) (emphasis added).
2. 354 U.S. 476, 484 (1957) (Brennan, J.). The decision in Roth, however, seems inconsistent with this principle. See City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 453 (2002) (Souter, J., dissenting).
3. New York Times v. Sullivan, 376 U.S. 254, 270 (1964) (quoting United States v. Associated Press, 52 F. Supp. 362, 372 [S.D.N.Y. 1943] [Judge Learned Hand]).
4. Brown v. Hartlage, 456 U.S. 45, 61 (1982) (quoting Whitney v. California, 274 U.S. 357, 377 [1927] [Brandeis, J., concurring]).
5. See, e.g., Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974).
6. See generally, Michael Kent Curtis, Free Speech, "The People's Darling Privilege": Struggles for Freedom of Expression in American History (Durham, NC: Duke University Press, 2000), 34-104 (hereafter, Curtis, Free Speech).
7. See generally, Michael Kent Curtis, Free Speech, "The People's Darling Privilege": Struggles for Freedom of Expression in American History (Durham, NC: Duke University Press, 2000), 34-104 (hereafter, Curtis, Free Speech).
8. Id. at 131-93, 215-70.
9. E.g., id. at 246, 271-76.
10. Barron v. Mayor and City of Baltimore, 32 U.S. 243 (1833).
11. I b i d.
12. Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Durham, NC: Duke University Press, 1986), 22-25; Michael Kent Curtis, "Historical Linguistics, Inkblots, and Life After Death: The Privileges or Immunities of Citizens of the United States," North Carolina Law Review 78 (2000): 1118-21. W. W. Crosskey and Charles Fairman, "'Legislative History' and the Constitutional Limitations on State Authority," University of Chicago Law Review 22 (1954): 141-43. (Crosskey was a trailblazer on the question of the Bill of Rights, the Fourteenth Amendment, and the states, and my debt to his work is substantial.)
13. Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Durham, NC: Duke University Press, 1986), 22-25; Michael Kent Curtis, "Historical Linguistics, Inkblots, and Life After Death: The Privileges or Immunities of Citizens of the United States," North Carolina Law Review 78 (2000): 1118-21. W. W. Crosskey and Charles Fairman, "'Legislative History' and the Constitutional Limitations on State Authority," University of Chicago Law Review 22 (1954): 141-43. (Crosskey was a trailblazer on the question of the Bill of Rights, the Fourteenth Amendment, and the states, and my debt to his work is substantial.)
14. Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Durham, NC: Duke University Press, 1986), 22-25; Michael Kent Curtis, "Historical Linguistics, Inkblots, and Life After Death: The Privileges or Immunities of Citizens of the United States," North Carolina Law Review 78 (2000): 1118-21. W. W. Crosskey and Charles Fairman, "'Legislative History' and the Constitutional Limitations on State Authority," University of Chicago Law Review 22 (1954): 141-43. (Crosskey was a trailblazer on the question of the Bill of Rights, the Fourteenth Amendment, and the states, and my debt to his work is substantial.)
15. A 'prior restraint' is a requirement that a person who wishes to publish a book, newspaper, or other item must first get the publication approved and licensed by the government. Under a prior restraint doctrine, printing without a license is a crime. Punishment after publication for what is said (as opposed to for failure to get a license) is referred to as 'subsequent punishment'.
16. Curtis, Free Speech, supra note 6, e.g., at 66-77, 94-101, 166-81, 205-15, 227-40, 244-45, 250-56, 259, 266-70, 281-88, 296-99.
17. Id. at 199-201.
18. Id. at 261-62. E.g., Commonwealth v. Barrett, 9 Leigh 665 (Va. 1839); Bacon v. Commonwealth, 48 Va. 602 (Va. 1850).
19. Id. at 261-62. E.g., Commonwealth v. Barrett, 9 Leigh 665 (Va. 1839); Bacon v. Commonwealth, 48 Va. 602 (Va. 1850).
20. State v. Worth, 52 N.C. 488 (1860).
21. Curtis, Free Speech, supra note 6, at chap. 13.
22. E.g., id. at chaps. 12 and 13.
23. For a discussion of this approach and what has been omitted, see Michael Kent Curtis, "Teaching Free Speech from an Incomplete Fossil Record," Akron Law Review 34 (2000): 231.
24. E.g., Near v. Minnesota, 283 U.S. 697 (1931); Stromberg v. California, 283 U.S. 359 (1931); Herndon v. Lowry, 301 U.S. 242 (1937); De Jonge v. Oregon, 299 U.S. 353 (1937); Schneider v. State, 308 U.S. 147 (1939).
25. E.g., Near v. Minnesota, 283 U.S. 697 (1931); Stromberg v. California, 283 U.S. 359 (1931); Herndon v. Lowry, 301 U.S. 242 (1937); De Jonge v. Oregon, 299 U.S. 353 (1937); Schneider v. State, 308 U.S. 147 (1939).
26. E.g., Near v. Minnesota, 283 U.S. 697 (1931); Stromberg v. California, 283 U.S. 359 (1931); Herndon v. Lowry, 301 U.S. 242 (1937); De Jonge v. Oregon, 299 U.S. 353 (1937); Schneider v. State, 308 U.S. 147 (1939).
27. E.g., Near v. Minnesota, 283 U.S. 697 (1931); Stromberg v. California, 283 U.S. 359 (1931); Herndon v. Lowry, 301 U.S. 242 (1937); De Jonge v. Oregon, 299 U.S. 353 (1937); Schneider v. State, 308 U.S. 147 (1939).
28. E.g., Near v. Minnesota, 283 U.S. 697 (1931); Stromberg v. California, 283 U.S. 359 (1931); Herndon v. Lowry, 301 U.S. 242 (1937); De Jonge v. Oregon, 299 U.S. 353 (1937); Schneider v. State, 308 U.S. 147 (1939).
29. See generally, Curtis, Free Speech, supra note 6, at 428-34. See also Wilson Huhn, book review, "Compelling Lessons in the First Amendment," Constitutional Commentary 19 (2002): 795.
30. See generally, Curtis, Free Speech, supra note 6, at 428-34. See also Wilson Huhn, book review, "Compelling Lessons in the First Amendment," Constitutional Commentary 19 (2002): 795.
31. Curtis, Free Speech, supra note 6, at 68-77, 94-101.
32. Id. at 75.
33. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639 (1943): "True, the task of translating the majestic generalities of the Bill of Rights, conceived as part of the pattern of liberal government in the eighteenth century, into concrete restraints on officials dealing with the problems of the twentieth century, is one to disturb self-confidence." Lawrence Lessig, Code and Other Laws of Cyberspace (New York: Basic Books, 1999), 109-21 (hereafter, Lessig, Code).
34. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639 (1943): "True, the task of translating the majestic generalities of the Bill of Rights, conceived as part of the pattern of liberal government in the eighteenth century, into concrete restraints on officials dealing with the problems of the twentieth century, is one to disturb self-confidence." Lawrence Lessig, Code and Other Laws of Cyberspace (New York: Basic Books, 1999), 109-21 (hereafter, Lessig, Code).
35. Richard Overton, To . . . The Commons of England (1649), in Don M. Wolfe, ed., Leveller Manifestoes of the Puritan Revolution (New York: T. Nelson and Sons, 1944; New York: Humanities Press, 1967), 327-28.
36. Richard Overton, To . . . The Commons of England (1649), in Don M. Wolfe, ed., Leveller Manifestoes of the Puritan Revolution (New York: T. Nelson and Sons, 1944; New York: Humanities Press, 1967), 327-28.
37. Id. at 328.
38. John Trenchard and Thomas Gordon, Cato's Letters: Essays on Liberty, Civil and Religious, No. 15 (New York: Da Capo Press, 1971) 1:96-98. See also No. 32, 1:246-54, and 2:42-43.
39. Curtis, Free Speech, supra note 6, at 68-69 (quoting Congressman Nicholas); 94-96 (quoting James Madison).
40. Curtis, Free Speech, supra note 6, at 68-69 (quoting Congressman Nicholas); 94-96 (quoting James Madison).
41. Register of Debates (Washington, DC: Library of Congress, 1999), 24th Cong., 1st sess. (1835-36), Senate, at 1152; available online at http://memory.loc.gov/ammem/amlaw/Iwrdlink.html#anchor24 [accessed November 20, 2003].
42. Id. at 1153.
43. I b i d.
44. "Freedom of Discussion," Boston Daily Advocate, January 3, 1838, at 2.
45. Id. A line has been dropped from the copy of the paper I have examined, but I think this is the intended meaning.
46. See John Stuart Mill, On Liberty and Other Essays (1859), reprinted in John Stuart Mill, On Liberty and Other Essays, John Gray, ed. (Oxford: Oxford World's Classics, 1991), 19-49.
47. See John Stuart Mill, On Liberty and Other Essays (1859), reprinted in John Stuart Mill, On Liberty and Other Essays, John Gray, ed. (Oxford: Oxford World's Classics, 1991), 19-49.
48. Friedrich A. von Hayek, The Constitution of Liberty (Chicago, IL: University of Chicago Press, 1960), 109. See also American Booksellers Association v. Hudnut, 771 F.2d 323, 332 (7th Cir. 1985) ("Free speech has been on balance an ally of those seeking change").
49. The story is well told in Taylor Branch, Pillar of Fire: America in the King Years, 1963-65 (New York: Simon and Schuster, 1999).
50. Debs v. United States, 249 U.S. 211 (1919).
51. Bond v. Floyd, 385 U.S. 116 (1966).
52. E.g., Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States (New York: Basic Books, 2000), 105-16, 119-63, 238-39.
53. For a brief discussion of the role of the press in American history, see Patrick M. Garry, Scrambling for Protection: The New Media and the First Amendment (Pittsburgh, PA: University of Pittsburgh Press 1994), 97-106, 128-32.
54. William Seward, Notes on New York, in vol. 2 of The Works of William H. Seward, George E. Baker, ed. (New York: Redfield, 1853), 37.
55. Id. at 37.
56. Id. at 38.
57. Frederick Grimke, The Nature and Tendency of Free Institutions (1848), John William Ward, ed., (Cambridge, MA: Harvard University Press, 1968), 396.
58. Id. at 396.
59. Id. at 397.
60. I b i d.
61. I b i d.
62. Id. at 399.
63. Id. at 400.
64. I b i d.
65. Id. at 401.
66. I b i d.
67. Id. at 403.
68. Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union (Boston, MA: Little, Brown and Co., 1868), 451.
69. I b i d.
70. Id. at 454.
71. Id. at 452.
72. I b i d.
73. Id. at 455-56.
74. Curtis, Free Speech, supra note 6, at 162-63.
75. Id. at 173.
76. Paul M. Angle, ed., Created Equal: The Complete Lincoln-Douglas Debates of 1858 (Chicago, IL: University of Chicago Press, 1985), xxv.
77. 376 U.S. 254 (1964). See generally, Anthony Lewis, Make No Law: The Sullivan Case and the First Amendment (New York: Random House, 1991), on the effort to silence press reports on the struggle of the Civil Rights movement in the South.
78. 376 U.S. 254 (1964). See generally, Anthony Lewis, Make No Law: The Sullivan Case and the First Amendment (New York: Random House, 1991), on the effort to silence press reports on the struggle of the Civil Rights movement in the South.
79. New York Times Co. v. United States, 403 U.S. 713 (1971).
80. E.g., United States v. Kokinda, 497 U.S. 720 (1990) (upheld arrests and jail time for sale of political literature on sidewalk outside a United States Post Office); Lehman v. Shaker Heights, 418 U.S. 298 (1974) (ban upheld on all political ads in the advertising slots provided in city buses); Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, 391 U.S. 308 (1968) (public forum recognized in common areas of shopping center), limited by Lloyd Corp. v. Tanner, 407 U.S. 551 (1972) and overruled in Hudgens v. NLRB, 424 U.S. 507 (1976). But see, e.g., Watchtower Bible and Tract Society of New York v. Village of Stratton, 536 U.S. 150 (2002) (striking down requirement of a permit for door-to-door citizen activity).
81. E.g., United States v. Kokinda, 497 U.S. 720 (1990) (upheld arrests and jail time for sale of political literature on sidewalk outside a United States Post Office); Lehman v. Shaker Heights, 418 U.S. 298 (1974) (ban upheld on all political ads in the advertising slots provided in city buses); Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, 391 U.S. 308 (1968) (public forum recognized in common areas of shopping center), limited by Lloyd Corp. v. Tanner, 407 U.S. 551 (1972) and overruled in Hudgens v. NLRB, 424 U.S. 507 (1976). But see, e.g., Watchtower Bible and Tract Society of New York v. Village of Stratton, 536 U.S. 150 (2002) (striking down requirement of a permit for door-to-door citizen activity).
82. E.g., United States v. Kokinda, 497 U.S. 720 (1990) (upheld arrests and jail time for sale of political literature on sidewalk outside a United States Post Office); Lehman v. Shaker Heights, 418 U.S. 298 (1974) (ban upheld on all political ads in the advertising slots provided in city buses); Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, 391 U.S. 308 (1968) (public forum recognized in common areas of shopping center), limited by Lloyd Corp. v. Tanner, 407 U.S. 551 (1972) and overruled in Hudgens v. NLRB, 424 U.S. 507 (1976). But see, e.g., Watchtower Bible and Tract Society of New York v. Village of Stratton, 536 U.S. 150 (2002) (striking down requirement of a permit for door-to-door citizen activity).
83. See Nielsen Media Research, 2000 Report on Television (2000), 14, as cited in Michael Kent Curtis, "The Constitution and the Other Constitution," William and Mary Bill of Rights Journal 10 (2002): 359, 366 (hereafter, Curtis, "The Other Constitution").
84. See Nielsen Media Research, 2000 Report on Television (2000), 14, as cited in Michael Kent Curtis, "The Constitution and the Other Constitution," William and Mary Bill of Rights Journal 10 (2002): 359, 366 (hereafter, Curtis, "The Other Constitution").
85. See Nielsen Media Research, 2000 Report on Television (2000), 14, as cited in Michael Kent Curtis, "The Constitution and the Other Constitution," William and Mary Bill of Rights Journal 10 (2002): 359, 366 (hereafter, Curtis, "The Other Constitution").
86. See id.
87. See id.
88. In 1992, 41 percent of Americans got their news exclusively from television and 80 percent got most of their news there. Reed Hundt, "The Public's Airwaves: What Does the Public Interest Require of Television Broadcasters?" Duke Law Journal 45 (1996): 1089, 1102 (citing Thomas B. Rosentiel, "Survey: Public Prefers Tyson to Politics," Los Angeles Times, March 5, 1992, A13). As of 2000, one in three Americans got some of their news online: "Internet Sapping Broadcast News Audience," http://people-press.org/reports/display.php3?PageID=202 [accessed July 11, 2003]. About 40 percent of the 33 percent who are online news consumers go to the Internet for political news: http://people-press.org/reports/display.php3? PageID=204 [accessed July 11, 2003]. Curtis, "The Other Constitution," supra note 67, at 366 n.34.
89. In 1992, 41 percent of Americans got their news exclusively from television and 80 percent got most of their news there. Reed Hundt, "The Public's Airwaves: What Does the Public Interest Require of Television Broadcasters?" Duke Law Journal 45 (1996): 1089, 1102 (citing Thomas B. Rosentiel, "Survey: Public Prefers Tyson to Politics," Los Angeles Times, March 5, 1992, A13). As of 2000, one in three Americans got some of their news online: "Internet Sapping Broadcast News Audience," http://people-press.org/reports/display.php3?PageID=202 [accessed July 11, 2003]. About 40 percent of the 33 percent who are online news consumers go to the Internet for political news: http://people-press.org/reports/display.php3? PageID=204 [accessed July 11, 2003]. Curtis, "The Other Constitution," supra note 67, at 366 n.34.
90. In 1992, 41 percent of Americans got their news exclusively from television and 80 percent got most of their news there. Reed Hundt, "The Public's Airwaves: What Does the Public Interest Require of Television Broadcasters?" Duke Law Journal 45 (1996): 1089, 1102 (citing Thomas B. Rosentiel, "Survey: Public Prefers Tyson to Politics," Los Angeles Times, March 5, 1992, A13). As of 2000, one in three Americans got some of their news online: "Internet Sapping Broadcast News Audience," http://people-press.org/reports/display.php3?PageID=202 [accessed July 11, 2003]. About 40 percent of the 33 percent who are online news consumers go to the Internet for political news: http://people-press.org/reports/display.php3? PageID=204 [accessed July 11, 2003]. Curtis, "The Other Constitution," supra note 67, at 366 n.34.
91. In 1992, 41 percent of Americans got their news exclusively from television and 80 percent got most of their news there. Reed Hundt, "The Public's Airwaves: What Does the Public Interest Require of Television Broadcasters?" Duke Law Journal 45 (1996): 1089, 1102 (citing Thomas B. Rosentiel, "Survey: Public Prefers Tyson to Politics," Los Angeles Times, March 5, 1992, A13). As of 2000, one in three Americans got some of their news online: "Internet Sapping Broadcast News Audience," http://people-press.org/reports/display.php3?PageID=202 [accessed July 11, 2003]. About 40 percent of the 33 percent who are online news consumers go to the Internet for political news: http://people-press.org/reports/display.php3? PageID=204 [accessed July 11, 2003]. Curtis, "The Other Constitution," supra note 67, at 366 n.34.
92. In 1992, 41 percent of Americans got their news exclusively from television and 80 percent got most of their news there. Reed Hundt, "The Public's Airwaves: What Does the Public Interest Require of Television Broadcasters?" Duke Law Journal 45 (1996): 1089, 1102 (citing Thomas B. Rosentiel, "Survey: Public Prefers Tyson to Politics," Los Angeles Times, March 5, 1992, A13). As of 2000, one in three Americans got some of their news online: "Internet Sapping Broadcast News Audience," http://people-press.org/reports/display.php3?PageID=202 [accessed July 11, 2003]. About 40 percent of the 33 percent who are online news consumers go to the Internet for political news: http://people-press.org/reports/display.php3? PageID=204 [accessed July 11, 2003]. Curtis, "The Other Constitution," supra note 67, at 366 n.34.
93. Material in the preceding paragraph on television viewing and material that follows on conflicts of interest also appear in slightly earlier form in Curtis, "The Other Constitution," supra note 67, at 365-68. See also Michael Kent Curtis, "Judicial Review and Populism," Wake Forest Law Review (2003): 313, 330.
94. Material in the preceding paragraph on television viewing and material that follows on conflicts of interest also appear in slightly earlier form in Curtis, "The Other Constitution," supra note 67, at 365-68. See also Michael Kent Curtis, "Judicial Review and Populism," Wake Forest Law Review (2003): 313, 330.
95. See generally, Pbs, Wide Angle, "media by Milosevic," at http://www.pbs.org/wnet/wideangle/shows/yugoslavia/index.html [accessed November 20, 2003]. Consider the following news story discussing Italian press coverage of Berlusconi's comparison ofa German Social Democratic delegate to the European Parliament to a concentration camp guard: [T]he reaction of the Italian media to his comments was almost a test case of the extent of his unhealthy domination of that industry. Il Foglio headlined its leading article: "Premeditated Aggression: A Just Reply". It is owned by his wife. Il Giornale accused the Germans and French of a plot against Italy. It is owned by his brother. The main news on the state television channels played down the story - they are not directly controlled by Mr. Berlusconi but are part of a web of political patronage. The prime minister also owns the three main private television channels, one of which did not even report Mr Berlusconi's words. Mr. Berlusconi's 'Joke' Exposes the Democratic Flaw at the Heart of the EU," The Independent, July 4, 2003.
96. See generally, Pbs, Wide Angle, "media by Milosevic," at http://www.pbs.org/wnet/wideangle/shows/yugoslavia/index.html [accessed November 20, 2003]. Consider the following news story discussing Italian press coverage of Berlusconi's comparison ofa German Social Democratic delegate to the European Parliament to a concentration camp guard: [T]he reaction of the Italian media to his comments was almost a test case of the extent of his unhealthy domination of that industry. Il Foglio headlined its leading article: "Premeditated Aggression: A Just Reply". It is owned by his wife. Il Giornale accused the Germans and French of a plot against Italy. It is owned by his brother. The main news on the state television channels played down the story - they are not directly controlled by Mr. Berlusconi but are part of a web of political patronage. The prime minister also owns the three main private television channels, one of which did not even report Mr Berlusconi's words. Mr. Berlusconi's 'Joke' Exposes the Democratic Flaw at the Heart of the EU," The Independent, July 4, 2003.
97. Molly Ivins, "Three New Books Offer Suggestions for Fixing the Media Mess," Charleston Gazette, November 2, 1999, A-4. See Curtis, "The Other Constitution," supra note 67, at 365.
98. Molly Ivins, "Three New Books Offer Suggestions for Fixing the Media Mess," Charleston Gazette, November 2, 1999, A-4. See Curtis, "The Other Constitution," supra note 67, at 365.
99. Steven Hill, Fixing Elections: The Failure of America's Winner Take All Politics (New York: Routledge, 2002), 189.
100. Id. at 190.
101. Thomas E. Patterson, The Vanishing Voter: Public Involvement in an Age of Uncertainty (New York: Knopf, 2002), 69
102. Hill, Fixing Elections, 190. Compare, Patterson, The Vanishing Voter, 68.
103. Hill, Fixing Elections, 190. Compare, Patterson, The Vanishing Voter, 68.
104. Patterson, The Vanishing Voter, 68.
105. Hill, Fixing Elections, 190.
106. See Charles Lewis, "Media Money: How Corporate Spending Blocked Political-Ad Reform, and Other Stories of Influence," Columbia Journalism Review (Sept./Oct. 2000): 20, 26; Robert W. McChesney, Rich Media, Poor Democracy: Communication Politics in Dubious Times (Urbana: University of Illinois Press, 1999), 263-64. Curtis, "The Other Constitution," supra note 67, at 370.
107. See Charles Lewis, "Media Money: How Corporate Spending Blocked Political-Ad Reform, and Other Stories of Influence," Columbia Journalism Review (Sept./Oct. 2000): 20, 26; Robert W. McChesney, Rich Media, Poor Democracy: Communication Politics in Dubious Times (Urbana: University of Illinois Press, 1999), 263-64. Curtis, "The Other Constitution," supra note 67, at 370.
108. See Charles Lewis, "Media Money: How Corporate Spending Blocked Political-Ad Reform, and Other Stories of Influence," Columbia Journalism Review (Sept./Oct. 2000): 20, 26; Robert W. McChesney, Rich Media, Poor Democracy: Communication Politics in Dubious Times (Urbana: University of Illinois Press, 1999), 263-64. Curtis, "The Other Constitution," supra note 67, at 370.
109. McChesney, Rich Media, Poor Democracy, 263-64.
110. Patterson, The Vanishing Voter, supra note 76, at 48.
111. Id. at 55.
112. Id. at 56.
113. I b i d.
114. For a detailed discussion of the effect of gaffes on each of these candidates, see Kathleen Hall Jamieson and Paul Waldman, The Press Effect: Politicians, Journalists, and the Stories that Shape the Political World (Oxford: Oxford University Press, 2003), 48-60.
115. Id. at 55.
116. See id. at 50-51; also Paul Waldman, "Gored by the Media Bull," The American Prospect, January 13, 2002, at 20.
117. See id. at 50-51; also Paul Waldman, "Gored by the Media Bull," The American Prospect, January 13, 2002, at 20.
118. Hill, Fixing Elections, supra note 74, at 189.
119. I b i d.
120. E. Joshua Rosenkrantz, Buckley Stops Here: Loosening the Judicial Stranglehold on Campaign Finance Reform (New York: Century Foundation Press, 1998), 16; "What Americans Think," Washington Post Weekly, May 17, 1999, at 34. See also Daniel A. Farber and Phillip P. Frickey, Law and Public Choice: A Critical Introduction (Chicago, IL: University of Chicago Press, 1991), 12. Curtis, "The Other Constitution," supra note 67, at 359, 373.
121. E. Joshua Rosenkrantz, Buckley Stops Here: Loosening the Judicial Stranglehold on Campaign Finance Reform (New York: Century Foundation Press, 1998), 16; "What Americans Think," Washington Post Weekly, May 17, 1999, at 34. See also Daniel A. Farber and Phillip P. Frickey, Law and Public Choice: A Critical Introduction (Chicago, IL: University of Chicago Press, 1991), 12. Curtis, "The Other Constitution," supra note 67, at 359, 373.
122. E. Joshua Rosenkrantz, Buckley Stops Here: Loosening the Judicial Stranglehold on Campaign Finance Reform (New York: Century Foundation Press, 1998), 16; "What Americans Think," Washington Post Weekly, May 17, 1999, at 34. See also Daniel A. Farber and Phillip P. Frickey, Law and Public Choice: A Critical Introduction (Chicago, IL: University of Chicago Press, 1991), 12. Curtis, "The Other Constitution," supra note 67, at 359, 373.
123. E. Joshua Rosenkrantz, Buckley Stops Here: Loosening the Judicial Stranglehold on Campaign Finance Reform (New York: Century Foundation Press, 1998), 16; "What Americans Think," Washington Post Weekly, May 17, 1999, at 34. See also Daniel A. Farber and Phillip P. Frickey, Law and Public Choice: A Critical Introduction (Chicago, IL: University of Chicago Press, 1991), 12. Curtis, "The Other Constitution," supra note 67, at 359, 373.
124. See Bill Moyers: Free Speech for Sale, PBS television broadcast, June 8, 1999, transcript by Burrelle's Information Service; Waldman, The Press Effect, supra note 86, at 9-12; and Curtis, "The Other Constitution," supra note 67, at 367-69.
125. See Bill Moyers: Free Speech for Sale, PBS television broadcast, June 8, 1999, transcript by Burrelle's Information Service; Waldman, The Press Effect, supra note 86, at 9-12; and Curtis, "The Other Constitution," supra note 67, at 367-69.
126. See Bill Moyers: Free Speech for Sale, PBS television broadcast, June 8, 1999, transcript by Burrelle's Information Service; Waldman, The Press Effect, supra note 86, at 9-12; and Curtis, "The Other Constitution," supra note 67, at 367-69.
127. See all of the sources cited above in note 92.
128. See id.
129. See id.
130. Waldman, The Press Effect, supra note 86, at 9.
131. See The Annenberg Public Policy Center of the University of Pennsylvania, Issue Ads @ APPC, http://appcpenn.org/issueads/ citizens%20for%better%20medicare.htm [modified August 2000, accessed January 24, 2001]; as cited in Curtis, "The Other Constitution," supra note 67, at 368.
132. See The Annenberg Public Policy Center of the University of Pennsylvania, Issue Ads @ APPC, http://appcpenn.org/issueads/ citizens%20for%better%20medicare.htm [modified August 2000, accessed January 24, 2001]; as cited in Curtis, "The Other Constitution," supra note 67, at 368.
133. See id.
134. See id.
135. Peter Wong, "Spending in Recent Election Broke Records," Statesman Journal (Salem, OR), December 6, 2002, 1C. See also Tim Christie, "Health Care Plan Gets Little Backing from Oregon Voters," The Register Guard, November 7, 2002; and James Mayer and Michelle Cole, "Oregon Voters Make Policy Choices at Polls," The Oregonian, November 6, 2002.
136. Peter Wong, "Spending in Recent Election Broke Records," Statesman Journal (Salem, OR), December 6, 2002, 1C. See also Tim Christie, "Health Care Plan Gets Little Backing from Oregon Voters," The Register Guard, November 7, 2002; and James Mayer and Michelle Cole, "Oregon Voters Make Policy Choices at Polls," The Oregonian, November 6, 2002.
137. Peter Wong, "Spending in Recent Election Broke Records," Statesman Journal (Salem, OR), December 6, 2002, 1C. See also Tim Christie, "Health Care Plan Gets Little Backing from Oregon Voters," The Register Guard, November 7, 2002; and James Mayer and Michelle Cole, "Oregon Voters Make Policy Choices at Polls," The Oregonian, November 6, 2002.
138. Lance Williams, "Ethics Boss Raps Worker for Revealing PG&E Error," San Francisco Chronicle, January 10, 2002, A1; Chuck Finnic and Susan Sward, "PG&E Spends Big to Defeat Prop. D," San Francisco Chronicle, October 29, 2002, A1.
139. Lance Williams, "Ethics Boss Raps Worker for Revealing PG&E Error," San Francisco Chronicle, January 10, 2002, A1; Chuck Finnic and Susan Sward, "PG&E Spends Big to Defeat Prop. D," San Francisco Chronicle, October 29, 2002, A1.
140. See Robyn R. Polashuk, "Protecting the Public Debate: The Validity of the Fairness Doctrine in Ballot Initiative Elections," UCLA Law Review 41 (1993): 391, 405 (citing Betty H. Zisk, Money, Media, and the Grass Roots: State Ballot Issues and the Electoral Process [Newbury Park, CA: Sage Publications, 1987], 93-95, 198-99).
141. See Robyn R. Polashuk, "Protecting the Public Debate: The Validity of the Fairness Doctrine in Ballot Initiative Elections," UCLA Law Review 41 (1993): 391, 405 (citing Betty H. Zisk, Money, Media, and the Grass Roots: State Ballot Issues and the Electoral Process [Newbury Park, CA: Sage Publications, 1987], 93-95, 198-99).
142. See Seth Faison, "Dalai Lama Movie Imperils Disney Future in China," New York Times, November 26, 1996, A1. Curtis, "The Other Constitution," supra note 67, at 366-68.
143. See Seth Faison, "Dalai Lama Movie Imperils Disney Future in China," New York Times, November 26, 1996, A1. Curtis, "The Other Constitution," supra note 67, at 366-68.
144. See John Gittings, "Murdoch's Beijing Love-Fest," The Guardian (London), December 12, 1998, at 14. (Available online in LEXIS News Library, The Guardian [London file].) Cited in Curtis, "The Other Constitution," supra note 67, at 367.
145. See John Gittings, "Murdoch's Beijing Love-Fest," The Guardian (London), December 12, 1998, at 14. (Available online in LEXIS News Library, The Guardian [London file].) Cited in Curtis, "The Other Constitution," supra note 67, at 367.
146. See John Gittings, "Murdoch's Beijing Love-Fest," The Guardian (London), December 12, 1998, at 14. (Available online in LEXIS News Library, The Guardian [London file].) Cited in Curtis, "The Other Constitution," supra note 67, at 367.
147. See id.
148. See id. Murdoch denies that the decision was commercially motivated. C. Edwin Baker, Media, Markets, and Democracy (New York: Cambridge University Press, 2002), 195. In a world of ever-more concentrated media power in fewer and fewer hands, an admission that the decision was ideological would not be reassuring either.
149. See id. Murdoch denies that the decision was commercially motivated. C. Edwin Baker, Media, Markets, and Democracy (New York: Cambridge University Press, 2002), 195. In a world of ever-more concentrated media power in fewer and fewer hands, an admission that the decision was ideological would not be reassuring either.
150. See G. Bruce Knecht, "Magazine Advertisers Demand Prior Notice of Offensive Articles," Wall Street Journal, April 30, 1997, at 1. Most of the specific issues reported in the article involve sexual matters. Magazines discussed in the article include The New Yorker, Esquire, and People. It seems likely that holders of such market power would be tempted to use it to protect themselves and their products from criticism. See also Curtis, "The Other Constitution," supra note 67, at 367.
151. See G. Bruce Knecht, "Magazine Advertisers Demand Prior Notice of Offensive Articles," Wall Street Journal, April 30, 1997, at 1. Most of the specific issues reported in the article involve sexual matters. Magazines discussed in the article include The New Yorker, Esquire, and People. It seems likely that holders of such market power would be tempted to use it to protect themselves and their products from criticism. See also Curtis, "The Other Constitution," supra note 67, at 367.
152. See Andrew Kohut, "Self Censorship: Counting the Ways," Columbia Journalism Review (May/June, 2000): 42-43; as cited in Curtis, "The Other Constitution," supra note 67, at 366.
153. See Andrew Kohut, "Self Censorship: Counting the Ways," Columbia Journalism Review (May/June, 2000): 42-43; as cited in Curtis, "The Other Constitution," supra note 67, at 366.
154. See id.
155. See Curtis, "The Other Constitution," supra note 67, at 366.
156. Baker, Media, Markets and Democracy, supra note 106, at 13-14.
157. Id. at 196-97.
158. I b i d.
159. Affluenza, PBS television broadcast, transcript (c) 1997, KCTS Assn. (Affluenza was a production of KCTS/Seattle and Oregon Public Broadcasting); cited in Curtis, "The Other Constitution," supra note 67, at 369.
160. Affluenza, PBS television broadcast, transcript (c) 1997, KCTS Assn. (Affluenza was a production of KCTS/Seattle and Oregon Public Broadcasting); cited in Curtis, "The Other Constitution," supra note 67, at 369.
161. Alan Cooperman, "Bishop in Bush's Church in New Antiwar Ad," Washington Post, January 31, 2003, A18.
162. Jeff Pillets, "Peace Ads Deemed Not Ready for Prime Time," The Record (Bergen County, NJ), January 29, 2003, A8.
163. 412 U.S. 94 (1973); for dissents by Justices Brennan and Marshall, see id. at 118.
164. 412 U.S. 94 (1973); for dissents by Justices Brennan and Marshall, see id. at 118.
165. Dean Alger, Megamedia: How Giant Corporations Dominate Mass Media, Distort Competition, and Endanger Democracy (Lanham, MD: Rowman and Littlefield, 1998), 100-11.
166. See Curtis, "Judicial Review and Populism," supra note 71, at 368-70.
167. See Karen Charman, Recasting the Web, Extra, July/August 2002, at 22-24; available online at http://fair.org/extra0207/open-access.html [accessed November 20, 2003].
168. See Karen Charman, Recasting the Web, Extra, July/August 2002, at 22-24; available online at http://fair.org/extra0207/open-access.html [accessed November 20, 2003].
169. Baker, Media, Markets and Democracy, supra note 106, at 295-96.
170. See Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, 391 U.S. 308 (1968), limited by Lloyd Corp. v. Tanner, 407 U.S. 551 (1972), and overruled in Hudgens v. NLRB, 424 U.S. 507 (1976). But see, e.g., Watchtower Bible and Tract Society of New York v. Village of Stratton, 536 U.S. 150 (2002) (striking down requirement of a permit for door-to-door citizen activity). In recent years, the Court has usually constricted the public forum doctrine. E.g., United States v. Kokinda, 497 U.S. 720 (1990); Lehman v. Shaker Heights, 418 U.S. 298 (1974) (ban upheld on all political ads in the advertising slots provided in city buses).
171. See Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, 391 U.S. 308 (1968), limited by Lloyd Corp. v. Tanner, 407 U.S. 551 (1972), and overruled in Hudgens v. NLRB, 424 U.S. 507 (1976). But see, e.g., Watchtower Bible and Tract Society of New York v. Village of Stratton, 536 U.S. 150 (2002) (striking down requirement of a permit for door-to-door citizen activity). In recent years, the Court has usually constricted the public forum doctrine. E.g., United States v. Kokinda, 497 U.S. 720 (1990); Lehman v. Shaker Heights, 418 U.S. 298 (1974) (ban upheld on all political ads in the advertising slots provided in city buses).
172. Carol Demare, "He Kept His Shirt on - and Got Arrested," Times Union (Albany, NY), March 5, 2003, B1.
173. SHAD Alliance v. Smith Haven Mall, 66 N.Y.2d 496 (Ct. App. 1985).
174. 393 U.S. 503 (1969).
175. See West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943); Wooley v. Maynard, 430 U.S. 705 (1977); Abood v. Detroit Board of Education, 431 U.S. 209 (1977).
176. See West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943); Wooley v. Maynard, 430 U.S. 705 (1977); Abood v. Detroit Board of Education, 431 U.S. 209 (1977).
177. Waldman, The Press Effect, supra note 86, at 11-12.
178. The case stating the public forum doctrine is Hague v. CIO, 307 U.S. 496, 515 (1939). See also Schneider v. State, 308 U.S. 147, 163 (1939); Martin v. City of Struthers, 319 U.S. 141 (1943); Jamison v. Texas, 318 U.S. 413 (1943); and Murdock v. Pennsylvania, 319 U.S. 105 (1943).
179. The case stating the public forum doctrine is Hague v. CIO, 307 U.S. 496, 515 (1939). See also Schneider v. State, 308 U.S. 147, 163 (1939); Martin v. City of Struthers, 319 U.S. 141 (1943); Jamison v. Texas, 318 U.S. 413 (1943); and Murdock v. Pennsylvania, 319 U.S. 105 (1943).
180. The case stating the public forum doctrine is Hague v. CIO, 307 U.S. 496, 515 (1939). See also Schneider v. State, 308 U.S. 147, 163 (1939); Martin v. City of Struthers, 319 U.S. 141 (1943); Jamison v. Texas, 318 U.S. 413 (1943); and Murdock v. Pennsylvania, 319 U.S. 105 (1943).
181. The case stating the public forum doctrine is Hague v. CIO, 307 U.S. 496, 515 (1939). See also Schneider v. State, 308 U.S. 147, 163 (1939); Martin v. City of Struthers, 319 U.S. 141 (1943); Jamison v. Texas, 318 U.S. 413 (1943); and Murdock v. Pennsylvania, 319 U.S. 105 (1943).
182. Associated Press v. United States, 326 U.S. 1, 20 (1945). C. Edwin Baker, "Media Concentration: Giving Up on Democracy," Florida Law Review 54 (2002): 839.
183. Associated Press v. United States, 326 U.S. 1, 20 (1945). C. Edwin Baker, "Media Concentration: Giving Up on Democracy," Florida Law Review 54 (2002): 839.
184. 395 U.S. 367 (1969).
185. See Baker, "Giving Up on Democracy," 842.
186. Turner Broadcasting System v. FCC, 512 U.S. 622, 685 (1994).
187. See generally, Branch, Pillar of Fire, supra note 36.
188. Stromberg v. California, 283 U.S. 359, 369 (1931) (emphasis added).
189. Roth v. United States, 354 U.S. 476, 484 (1957).
190. New York Times v. Sullivan, 376 U. S. 254, 270 (1964) (quoting United States v. Associated Press, 52 F. Supp. 362, 372 [S.D.N.Y.1943] [Judge Learned Hand]).
191. Curtis Publishing Co. v. Butts, 388 U.S. 130, 164 (1967) (Warren, C.J., concurring); see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974) (referring to private power and influence as factors making a person a public figure).
192. Curtis Publishing Co. v. Butts, 388 U.S. 130, 164 (1967) (Warren, C.J., concurring); see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974) (referring to private power and influence as factors making a person a public figure).
193. See the Virginia Resolution of 1798, quoted in Curtis, Free Speech, supra note 6, at 76.
194. James Madison, Writings (New York: Library of America, 1999), 179.
195. Curtis, "Judicial Review and Populism," supra note 71, at 325-28.
196. See id. at 313.
197. Baker, Media, Markets, and Democracy, supra note 106, at 198.
198. Curtis, "The Other Constitution," supra note 67, at 391-93. (Some of the examples of problems with media consolidation that I list here are also set out in the article.)
199. Id. at 391-92.
200. Louis B. Parks, "Chicks Face Landslide of Anger After Remarks," Houston Chronicle, March 15, 2003. (A number of country music stations banned music by the Dixie Chicks after the group criticized President Bush's plan for war in Iraq. Here, however, the stations initiated the ban and polls on whether to impose a ban. In the case of those that initiated polls, the results were that over 70 percent of listeners favored a ban.)
201. NAACP v. Claiborne Hardware, 458 U.S. 886 (1982).
202. Joseph Kahn, "China Toughens Obstacles to Internet Searches: Google Users Sent to Tamer Sites," New York Times, September 12, 2002, late edition-final, A3; Joseph Kahn, "China Has World's Tightest Internet Censorship, Study Finds," New York Times, December 4, 2002, late edition-final A13.
203. Joseph Kahn, "China Toughens Obstacles to Internet Searches: Google Users Sent to Tamer Sites," New York Times, September 12, 2002, late edition-final, A3; Joseph Kahn, "China Has World's Tightest Internet Censorship, Study Finds," New York Times, December 4, 2002, late edition-final A13.
204. See e.g., Lessig, Code, supra note 24, at 211-21.
205. See generally, Baker, Media, Markets, and Democracy, supra note 106.
206. Lessig, Code, supra note 24, at 227-29.
207. See generally Hill, Fixing Elections, supra note 74; Robert Dahl, How Democratic is the American Constitution? (New Haven, CT: Yale University Press, 2001), 55-61.
208. See generally Hill, Fixing Elections, supra note 74; Robert Dahl, How Democratic is the American Constitution? (New Haven, CT: Yale University Press, 2001), 55-61.
209. Mark A. Graber, Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism (Berkeley: University of California Press, 1991), 225.
210. See e.g., Alger, Megamedia, supra note 118; Baker, Media, Markets, and Democracy, supra note 106; C. Edwin Baker, "Giving Up on Democracy," supra note 129; Jack M. Balkin, "Populism and Progressivism As Constitutional Categories: Book Review of Cass R. Sunstein, Democracy and the Problem of Free Speech," Yale Law Journal 104 (1995): 1935; Herbert J. Gans, Democracy and the News (New York: Oxford University Press, 2003); McChesney, Rich Media, Poor Democracy, supra note 81; Lessig, Code, supra note 24; Robert Post, "Meiklejohn's Mistake: Individual Autonomy and the Reform of Public Discourse," University of Colorado Law Review 64 (1993): 1109. See also, Garry, Scrambling for Protection, supra note 40, chap. 10.
211. See e.g., Alger, Megamedia, supra note 118; Baker, Media, Markets, and Democracy, supra note 106; C. Edwin Baker, "Giving Up on Democracy," supra note 129; Jack M. Balkin, "Populism and Progressivism As Constitutional Categories: Book Review of Cass R. Sunstein, Democracy and the Problem of Free Speech," Yale Law Journal 104 (1995): 1935; Herbert J. Gans, Democracy and the News (New York: Oxford University Press, 2003); McChesney, Rich Media, Poor Democracy, supra note 81; Lessig, Code, supra note 24; Robert Post, "Meiklejohn's Mistake: Individual Autonomy and the Reform of Public Discourse," University of Colorado Law Review 64 (1993): 1109. See also, Garry, Scrambling for Protection, supra note 40, chap. 10.
212. See e.g., Alger, Megamedia, supra note 118; Baker, Media, Markets, and Democracy, supra note 106; C. Edwin Baker, "Giving Up on Democracy," supra note 129; Jack M. Balkin, "Populism and Progressivism As Constitutional Categories: Book Review of Cass R. Sunstein, Democracy and the Problem of Free Speech," Yale Law Journal 104 (1995): 1935; Herbert J. Gans, Democracy and the News (New York: Oxford University Press, 2003); McChesney, Rich Media, Poor Democracy, supra note 81; Lessig, Code, supra note 24; Robert Post, "Meiklejohn's Mistake: Individual Autonomy and the Reform of Public Discourse," University of Colorado Law Review 64 (1993): 1109. See also, Garry, Scrambling for Protection, supra note 40, chap. 10.
213. See e.g., Alger, Megamedia, supra note 118; Baker, Media, Markets, and Democracy, supra note 106; C. Edwin Baker, "Giving Up on Democracy," supra note 129; Jack M. Balkin, "Populism and Progressivism As Constitutional Categories: Book Review of Cass R. Sunstein, Democracy and the Problem of Free Speech," Yale Law Journal 104 (1995): 1935; Herbert J. Gans, Democracy and the News (New York: Oxford University Press, 2003); McChesney, Rich Media, Poor Democracy, supra note 81; Lessig, Code, supra note 24; Robert Post, "Meiklejohn's Mistake: Individual Autonomy and the Reform of Public Discourse," University of Colorado Law Review 64 (1993): 1109. See also, Garry, Scrambling for Protection, supra note 40, chap. 10.
214. See e.g., Alger, Megamedia, supra note 118; Baker, Media, Markets, and Democracy, supra note 106; C. Edwin Baker, "Giving Up on Democracy," supra note 129; Jack M. Balkin, "Populism and Progressivism As Constitutional Categories: Book Review of Cass R. Sunstein, Democracy and the Problem of Free Speech," Yale Law Journal 104 (1995): 1935; Herbert J. Gans, Democracy and the News (New York: Oxford University Press, 2003); McChesney, Rich Media, Poor Democracy, supra note 81; Lessig, Code, supra note 24; Robert Post, "Meiklejohn's Mistake: Individual Autonomy and the Reform of Public Discourse," University of Colorado Law Review 64 (1993): 1109. See also, Garry, Scrambling for Protection, supra note 40, chap. 10.
215. See e.g., Alger, Megamedia, supra note 118; Baker, Media, Markets, and Democracy, supra note 106; C. Edwin Baker, "Giving Up on Democracy," supra note 129; Jack M. Balkin, "Populism and Progressivism As Constitutional Categories: Book Review of Cass R. Sunstein, Democracy and the Problem of Free Speech," Yale Law Journal 104 (1995): 1935; Herbert J. Gans, Democracy and the News (New York: Oxford University Press, 2003); McChesney, Rich Media, Poor Democracy, supra note 81; Lessig, Code, supra note 24; Robert Post, "Meiklejohn's Mistake: Individual Autonomy and the Reform of Public Discourse," University of Colorado Law Review 64 (1993): 1109. See also, Garry, Scrambling for Protection, supra note 40, chap. 10.
216. See e.g., Alger, Megamedia, supra note 118; Baker, Media, Markets, and Democracy, supra note 106; C. Edwin Baker, "Giving Up on Democracy," supra note 129; Jack M. Balkin, "Populism and Progressivism As Constitutional Categories: Book Review of Cass R. Sunstein, Democracy and the Problem of Free Speech," Yale Law Journal 104 (1995): 1935; Herbert J. Gans, Democracy and the News (New York: Oxford University Press, 2003); McChesney, Rich Media, Poor Democracy, supra note 81; Lessig, Code, supra note 24; Robert Post, "Meiklejohn's Mistake: Individual Autonomy and the Reform of Public Discourse," University of Colorado Law Review 64 (1993): 1109. See also, Garry, Scrambling for Protection, supra note 40, chap. 10.
217. See e.g., Alger, Megamedia, supra note 118; Baker, Media, Markets, and Democracy, supra note 106; C. Edwin Baker, "Giving Up on Democracy," supra note 129; Jack M. Balkin, "Populism and Progressivism As Constitutional Categories: Book Review of Cass R. Sunstein, Democracy and the Problem of Free Speech," Yale Law Journal 104 (1995): 1935; Herbert J. Gans, Democracy and the News (New York: Oxford University Press, 2003); McChesney, Rich Media, Poor Democracy, supra note 81; Lessig, Code, supra note 24; Robert Post, "Meiklejohn's Mistake: Individual Autonomy and the Reform of Public Discourse," University of Colorado Law Review 64 (1993): 1109. See also, Garry, Scrambling for Protection, supra note 40, chap. 10.
218. See e.g., Alger, Megamedia, supra note 118; Baker, Media, Markets, and Democracy, supra note 106; C. Edwin Baker, "Giving Up on Democracy," supra note 129; Jack M. Balkin, "Populism and Progressivism As Constitutional Categories: Book Review of Cass R. Sunstein, Democracy and the Problem of Free Speech," Yale Law Journal 104 (1995): 1935; Herbert J. Gans, Democracy and the News (New York: Oxford University Press, 2003); McChesney, Rich Media, Poor Democracy, supra note 81; Lessig, Code, supra note 24; Robert Post, "Meiklejohn's Mistake: Individual Autonomy and the Reform of Public Discourse," University of Colorado Law Review 64 (1993): 1109. See also, Garry, Scrambling for Protection, supra note 40, chap. 10.