Scholars and Advocates Trade Ideas For Advancing Media Reform at "Reclaiming the First Amendment" Conference
(January 22, 2007) - On January 19, Hofstra Law School and the Brennan Center's Free Expression Policy Project held a daylong conference to commemorate the 40th anniversary of Jerome Barron's groundbreaking Harvard Law Review article, "Access to the Press - A New First Amendment Right." Titled "Reclaiming the First Amendment: Constitutional Theories of Media Reform," the conference brought together leading scholars and advocates to consider whether the First Amendment, as currently interpreted, is serving the public interest in diverse media content, and if not, how legal theory and policy might be developed to better serve First Amendment values.
Barron's 1967 article crystallized a growing awareness in the 1960s of the commercial mass media's power to choose what information and entertainment we receive, and thus to shape our cultural and political ideas. He ambitiously proposed a First Amendment right of public access to both broadcast and print media.
A Supreme Court decision two years later, in the case of Red Lion v. Federal Communications Commission, seemed to ratify Barron's thesis by upholding the FCC's Fairness Doctrine, which required broadcasters to offer the public opportunities to respond to programs with controversial viewpoints. Broadcasters, the Court said, are public trustees under a licensing system in which the interests of listeners and viewers are paramount.
But since Red Lion, the proposed right of access has been rejected by the Supreme Court. In 1973 came the Court's decision in Columbia Broadcasting v. Democratic National Committee, rejecting arguments for a constitutional or statutory right of access to broadcast outlets for political advertising. And Miami Herald v. Tornillo the following year rejected even a modest version of Barron's theory for print media, by striking down Florida's right-of-reply law for electoral candidates wishing to respond to personal attacks.
The Call for Papers for the "Reclaiming the First Amendment" conference noted that the problem of media consolidation that Barron identified has only intensified in the years since his article was published, and that "while the number of independent sources of media content dwindles, there is no affirmative First Amendment right to access or diversity; indeed, some argue that interfering with these marketplace trends would itself be a First Amendment violation." One purpose of the conference was therefore to explore the First Amendment values and doctrines that might be developed to support a more decentralized, egalitarian, and accessible press.
The conference was organized into four panels, a keynote address by Barron, and an end-of-the-day presentation by Professor Angela Campbell on her research into the papers of Justice Harry Blackmun, recently opened to scholars, and focusing on the Supreme Court's decisionmaking process in the Columbia Broadcasting and Tornillo cases. Legal historian Paul Finkelman commented on Campbell's paper and, more broadly, critiqued the overall pro-reform viewpoint of most conference participants. (For the institutional affiliations of the conference participants, and the conference agenda, see www.fepproject.org/fepp/hofstraagenda.pdf.)
"Media Regulation, Access, and the First Amendment"
The opening panel, "Media Regulation, Access, and the First Amendment," featured Professors Robert McChesney, C. Edwin Baker, Gregory Magarian, and Marvin Ammori. McChesney's opening talk noted that with the currently expanding media reform movement, the U.S. is at a "critical juncture." Scholars and advocates alike are questioning the system of government favors and subsidies that support the large commercial media industry. (He mentioned copyright law as one such subsidy.) Baker followed with an argument that freedom of the press, under the First Amendment, means something quite different from freedom of speech for individuals: the "instrumental" role of the press in supplying the information essential for democracy requires heightened protection in some circumstances (for example, a reporter's privilege against disclosing confidential sources); but the press does not enjoy the kind of "individual autonomy" that prevents the government from requiring public access or other sorts of regulation in the interests of diversity.
Magarian critiqued the arguments of scholars whom he dubbed "regulatory reformers," who press for policy changes in the legislature and in administrative agencies, but give up on the courts as potential sources of public access obligations. Judges are largely immune from the political process whose "pathologies," beholdenness to the corporate media, and "lack of accountability" make true reform unlikely, Magarian said. Courts are not policymakers, to be sure, but they can announce standards that embody First Amendment values.
Ammori argued for a revision of the First Amendment standards that now govern court challenges to media regulation. Under the Supreme Court's 1994 and 1997 decisions in Turner Broadcasting v. FCC, the government must justify even "content-neutral" regulations (there, a requirement that cable operators carry broadcast channels) with detailed evidence of necessity for the rule. The Turner standard, which is much more demanding than anything the Supreme Court required to justify the Fairness Doctrine back in the days of Red Lion, discourages regulations that are First Amendment-friendly because they aim to increase the diversity of content available from the mass media. When regulations (or laws) are designed to enhance rather than suppress content, they should not be subject to such a strict standard, Ammori said.
First Amendment attorney Robert Corn-Revere, serving as moderator and commenter, expressed appreciation for the opportunity to "go slumming" at an academic conference. In reply to Baker, and citing the examples of schools, libraries, and civil rights organizations, Corn-Revere argued that institutions must have the same First Amendment rights as individuals. Government regulation in the interest of increasing diversity has not worked in the past, he said; and referring to the FCC's dubious activity in policing "indecency" on the airwaves, he asked: "Can you imagine if the FCC was in charge of regulating the Internet?"
Baker replied during the Q&A period by distinguishing nonprofit advocacy organizations such as the NAACP from corporate media. Ammori pointed out that under longstanding "common carrier" rules, telephone companies cannot discriminate in the terms of access to their wires. ("That's what 'net neutrality is all about," he said.)
"Media Regulation and Intellectual Property"
The second panel, "Media Regulation and Intellectual Property," featured Professors Ellen Goodman, Hannibal Travis, Alan Garfield, and Diane Zimmerman as moderator and commenter.
Goodman focused on the inherent conflict between "communications pluralists," who defend government regulation against First Amendment attack by media corporations, and "copyright pluralists," who argue that the First Amendment limits the extend to which government can regulate in favor of large corporate copyright owners. Citing Justice Stephen Breyer, she pointed out that government regulation tends to have free expression effects on both sides. Although Breyer's approach - balancing of free speech interests - is "fraught with indeterminacy" and the danger of "judicial caprice," Goodman said it was still the best way to grapple with the conflicting interests honestly.
Hannibal Travis presented colorful evidence of the vast diversity of online speech today, including some 50 million blogs worldwide. He argued that our current intellectual property regime, which suppresses creative use of trademarks and provides very long terms of copyright protection, is inconsistent with the understanding of the Constitution's framers. The Internet and blogosphere, he said, should be at least as free as the press was when the First Amendment was ratified in 1791. Alan Garfield, pointing to the importance of free-expression safeguards within the copyright system, suggested a variety of reforms, including more specific rules for "fair use" of copyrighted material, and a reduction in the large potential money damages allowed by the law for copyright infringement.
Zimmerman, in response, expressed skepticism both about ad-hoc balancing by courts, and about Barron's access theory. Copyright is a political problem, she said; "don't put it on the fragile backbone of the First Amendment." Goodman responded, again citing Justice Breyer, that the "crystalline approach" to First Amendment problems simply hides the balancing that goes on behind the scenes in any free expression case. Ed Baker, from the floor, disputed Goodman's argument that structural regulation of the media industry is in fact a regulation of speech.
In his lunchtime keynote speech, Jerome Barron offered a combination of reminiscence and legal analysis. He had argued the Tornillo case before the Supreme Court, and when he lost, his son complained: "Gee dad, nine to nothing!" But in the years after Tornillo, he said, newspapers began a process of "soul-searching." Rights of reply and standards of fairness became parts of journalistic ethics in some quarters. Reviewing the few remaining provisions of federal law that require access to the broadcast media (for political candidates), he mused that "today, politicians give a right of access to themselves and no one else."
Yet, Barron said, big newspaper chains are breaking up, and some local groups are trying to buy local papers. Although radio has become "much too partisan," technology (specifically, the Internet) "has done for access what law refused to do." Hence, the urgent need for 'net neutrality requirements, prohibiting online service providers from giving themselves and their affiliates preferred treatment. We should not wait, Barron said, "until the damage is done."
"The Communications Order and New Technologies"
Professors Oren Bracha, Frank Pasquale, David Kohler, and Jennifer Chandler comprised the third panel, with Robert Horwitz as moderator and commenter. Kohler, a self-described "luddite" and skeptic about media regulation, offered a variety of "self-help" theories in support of free speech. Rather than seek regulation, for example, those offended by offensive speech should avert their eyes and ears (as the courts have generally required). Likewise, a reporter's privilege not to disclose confidential sources should be recognized by the courts because it encourages the investigatory journalism necessary for democracy to function.
Bracha and Pasquale jointly presented their research on Internet search engines - both their importance as tools for disseminating speech, and their capacity for manipulation. Courts have not been hospitable to legal claims against search engine companies for manipulating their rankings in their own commercial interests or for other reasons. Bracha and Pasquale argued that 'net neutrality principles should apply to search engines, that their search algorithms should be disclosed, and that the creation of a "transparent," publicly funded search engine should be considered.
Chandler also addressed the power of search engines as gatekeepers to information. Whether evaluating Internet filters, spam blockers, search engines, or other intermediaries, courts and policymakers need to consider the entire "communicative relationship," she said: the interests of online speakers in reaching an audience, the interests of audiences in accurate search results, and the interests of intermediaries in "editorial discretion."
In his comments, Horwitz noted that "self-help" is not very effective when, for example, a website posts identifying information about abortion providers in a context that amounts to a genuine threat to their lives. (He was referring to a case in which a court ruled that the American Coalition of Life Activists' "Nuremberg Files" website was not protected by the First Amendment.)
"Proposals for Reform"
The last panel, focusing on practical proposals for reform, included Professors Lili Levi, Malla Pollack, and Michael Epstein, attorney Cheryl Leanza, and Professor Laurence Winer as moderator/commenter.
Levi put forward "a middle ground" between regulation and hands-off approaches to improving the journalistic performance of broadcasters. Her recommendations included, first, supporting nonprofit and alternative media, and, second, experimenting with structural regulations to encourage commercial broadcasters to devote more resources to news and public affairs programming.
Leanza explored ways in which First Amendment case law relating to the "heckler's veto" might be used to increase communications diversity. This line of cases requires government officials to protect unpopular speakers against hecklers who are trying to silence them. Ordinarily, when private individuals or corporations suppress speech, it is not a First Amendment problem, because there is no "state action." The heckler's veto cases are an exception to this principle: courts have required government action to prevent private censorship.
Malla Pollack noted that the Supreme Court has, in recent cases, limited the theory of "forced speech" - that is, the notion that government cannot force private organizations to speak (or publish) against their will. This was a major element of the Tornillo decision. In Rumsfeld v. FAIR, for example, the Court rejected the argument of universities that being forced to allow military recruiters on campus "forced" them to promote the military's message of discrimination against gay men and lesbians. By the same token, Pollack suggested, government could require websites to post a link to an online "public comment" space for the free expression of ideas.
Finally, Michael Epstein proposed a policy of "spectrum set-asides" under which the government would allow media corporations to exceed ownership limits in exchange for providing bandwidth for public access channels. Now that digital technology allows broadcasters six separate channels, it would not be a hardship to devote one of them to the public's use. Epstein acknowledged that allowing companies to grow even larger in return for allowing public access might be "a Faustian bargain."
In reply, Leanza said that she would not trade "something big" like ownership caps for public access broadcasting, since "nobody watches" the existing public access cable channels, even though some of the content is very good.
Justice Blackmun's Papers
Angela Campbell reported on the Supreme Court's decisionmaking process in two cases - Columbia Broadcasting and Tornillo - based on her review of Justice Blackmun's papers in the Library of Congress. The Columbia Broadcasting case resulted in six separate opinions: a four-part "main decision" by then-Chief Justice Burger, and separate concurrences or dissents by then-Justices White, Blackmun, Douglas, Stewart, and Brennan.
Campbell focused on Justice Douglas' separate opinion, which went through 18 separate drafts before emerging as a concurrence. (It was originally a dissent). The papers show that as Douglas' thinking evolved, he came to reject categorically the Supreme Court's 1969 Red Lion ruling upholding the Fairness Doctrine. Douglas thought that the First Amendment barred any government interference with private media corporations' editorial decisions - including decisions about what advertising to accept.
Red Lion was also a focus of her research into the Tornillo case. One abiding mystery for First Amendment scholars is why the Supreme Court's decision in Tornillo, rejecting a right of access to the print media, does not even mention Red Lion, the leading case on right of access to broadcast channels. Campbell noted that Fred Friendly, in his book The Good Guys, The Bad Guys, and the First Amendment, opined that although several of the justices wanted to distinguish Red Lion and explain why it should not be extended to the print media - but was still good law as to broadcasting - Justice Douglas would not have joined such an opinion, because he was adamantly opposed to any statement from the Court affirming the continuing viability of Red Lion. Noting that Chief Justice Burger may have been eager to afford the fractured result two years before in Columbia Broadcasting, Campbell thought this explanation was plausible.
Most of the presentations at the conference were based on much longer and more detailed papers. These will be published in forthcoming issues of the Hofstra Law Review. The entire day was also videotaped. Update: The videos are now available online.
The ideas and dialogues begun here will hopefully develop into policies and legal theories that advance media reform and diversity in the years to come.