[1] Although a definition of the term, "New Economy," is debatable, I use it here in the broadest sense, describing a pervasiveness of global information technology and entertainment that is in a decreasing number of corporate hands.
[2] B. SCHMIDT, FREEDOM OF THE PRESS VS. PUBLIC ACCESS 37-40 (1976), describing early growth but current stagnation in media and access to media.
[3] "In Hollywood, A Party's Run for the Money," Ceci Connolly, The Washington Post, A1, Aug. 13, 2000.
[4] "Invasion of the Mega-Media-Merger Snatchers; Hollywood Finds That Outsize Does Matter," Sharon Waxman, The Washington Post, C08, Jan. 11, 2000.
[5] Ralph Nader, Introduction, in WITH JUSTICE FOR SOME: AN INDICTMENT OF THE LAW BY YOUNG ADVOCATES, ix (Bruce Wasserstein and Mark J. Green, eds., 1970). Use of this quote should not be read as an endorsement of Nader's own presidential campaign or funding.
[6] Although it could be argued that we have never had a democratically minded citizenry, we have also never had the levels of affluence, education, and communication technology that are characteristic of our current "Information Age." Thus, the reasons for our democratic indifference or ignorance are much different than those of previous generations.
[7] Abrams v. United States, 250 U.S. 616 (1919).
[8] Gitlow v. New York, 26
[8] U.S. 652 (1925). See also, Justice Douglas' dissent in Dennis v. United States, 341 U.S. 494, 584 (1951): "When ideas compete in the market for acceptance, full and free discussion exposes the false (ideas). . . . encourages the testing of our own prejudices and preconceptions . . . (and) keeps a society from becoming stagnant."
[9] See, generally, JOHN STUART MILL, ON LIBERTY Chapter II (1859).
[10] Jerome A. Barron, Access to the Press - A New First Amendment Right, 80 HARV. L. REV. 1641 (1965): "If ever there were a self-operating marketplace of ideas, it has long ceased to exist."
[11] Paul R. Brietzke, How and Why the Marketplace of Ideas Fails, 31 VAL. U. L. REV. 951, 954.
[12] Id.
[13] Mark V. Tushnet, An Essay on Rights, 62 TEX. L. REV. 1363, 1387 (1984).
[14] See MARSHALL MCLUHAN, UNDERSTANDING MEDIA (1964), in which he observes that what captivates viewers is the television screen itself - we are engaged by its form, not its content.
[15] Stanley Ingber, The Marketplace of Ideas: A Legitimizing Myth, 1984 DUKE L.J. 1, 51 (1984).
[16] EDWIN BAKER, HUMAN LIBERTY AND FREEDOM OF SPEECH 978 (1989).
[17] Id.
[18] Herbert Marcuse, Repressive Tolerance, in A CRITIQUE OF PURE TOLERANCE 95 (1965): "Whatever is stale and accepted in the status quo is readily discussed and thereby reinforced and revitalized."
[19] Ingber, 1984 DUKE L.J. at 49.
[20] ROBERT W. MCCHESNEY, RICH MEDIA, POOR DEMOCRACY: COMMUNICATION POLITICS IN DUBIOUS TIMES (1999). This information is taken from a televised lecture that McChesney gave in support of his book. The lecture appeared on C-SPAN in November 1999.
[21] Id.
[22] See, generally, Benjamin R. Barber, Free Speech and Community: The Market As Censor: Free Expression in a World of Consumer Totalism, 29 ARIZ. ST. L. J. 501 (1997).
[23] Brietzke, 31 VAL. U. L. REV. at 954.
[24] Barber, 29 ARIZ. ST. L.J. AT 506.
[25] Barber discusses in detail the disappearance of art as a public good and its new form as a commodity. This transformation is dangerous to free expression, he says, because citizens are given less variety of experiences if the only art they see has been marketed to appeal to their preexisting tastes. Today, for example, artists and writers are "hired guns," advertising is protected speech, and creative works are not public goods so much as intellectual property.
[26] Id.
[27] Id.
[28] Id., at 510.
[29] Mark C. Alexander, Attention Shoppers: The First Amendment in the Modern Shopping Mall, 41 ARIZ. L. REV. 1 (1999).
[30] Id., 2.
[31] Id., 2.
[32] OWEN FISS, LIBERALISM DIVIDED 50 (1996).
[33] Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 324 (1968).
[34] Alexander, 41 ARIZ. L. REV.at 5.
[35] PruneYard Shopping Center v. Robins, 447 U.S. 74, 99 (1980).
[36] This information is taken from <http://www.adbusters.org>
[37] Id.
[38] Marsh v. Alabama, 326 U.S. 501, 503 (1946).
[39] 326 U.S. at 505.
[40] Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 312 (1972).
[41] 326 U.S. at 511.
[42] Batchelder v. Allied Stores Int'l, 445 N.E.2d 590, 591 (Mass. 1983).
[43] 445 N.E.2d at 595.
[44] Id.
[45] This is especially true when one considers that the court's reason for limiting public activity on private land is not compelling, especially to the extent that malls have become more prevalent and access to the press has narrowed. The alternatives the court cites may no longer apply in an age of gated communities that are accessible only to major highways and prohibitive of door-to-door distribution, mail that is mostly advertisement, and press that is not only monopolized, but also highly influenced by advertisers.
[46] Lloyd Corp. V. Whiffen, 773 P.2d 1294 (Or. 1989).
[47] 773 P.2d at 1297.
[48] State v. Cargill, 786 P.2d 208 (Or. Ct. App. 1990).
[49] Id. At 212.
[50] CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH 44 (year).
[51] In the case of the Mall of America, $105 million was allocated by the City of Bloomington, Minnesota to finance the mall's sewer, roadways, and parking. 41 ARIZ. L. REV. 1, 43.
[52] LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW (Treatise) 1148.
[53] Id.
[54] Id., 1158.
[55] Id.
[56] Id., 1149.
[57] Ronald K. L. Collins and David M. Skover, Colloquy: The First Amendment and the Paratroopers' Paradox: The First Amendment in an Age of Paratroopers, 68 TEX. L. REV. 1087, 1088 (1990).
[58] Id.
[59] ALDOUS HUXLEY, BRAVE NEW WORLD 88, 110 (1946).
[60] HUXLEY, BRAVE NEW WORD REVISITED 44 (1958).
[61] DEBORAH TANNEN, THE ARGUMENT CULTURE 39 (1998).
[62] Id.
[63] Yaukey, Newsman Schorr Blasts Politics Warped by TV, ITHACA J., Nov. 15, 1988, at 3A, col. 1 (quoting from a lecture delivered at Cornell University).
[64] Collins and Skover, 68 TEX. L. REV. at 1096.
[65] NEIL POSTMAN, AMUSING OURSELVES TO DEATH 76-77(1986).
[66] See Time Magazine, December 20, 1999 (issue dedicated to discussion of these shootings).
[67] Collins and Skover, 68 TEX. L. REV. at 1097.
[68] Id..
[69] Id., at 1101.
[70] 302 U.S. 319, 325-27 (1937).
[71] 274 U.S. 357, 375 (1927).
[72] BARRY SANDERS, THE PRIVATE DEATH OF PUBLIC DISCOURSE (1998) 22.
[73] Id., 17-24.
[74] Id., 38.
[75] See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) and Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974).
[76] Frederick Schauer, The Political Incidence of the Free Speech Principle, 64 U. COLO. L. REV. 935, 942 (1993)
[77] 64 U. COLO. L. REV. at 947.
[78] Even Howard Stern, who has gained notoriety for his television show's controversial portrayal of porn stars and homosexuals, has been relegated to late-night cable television. Furthermore, although Stern might question sexual norms, his program does not call the economic or political status quo into serious debate. Thus, Stern's controversy is one that is still purely entertainment, not political discourse.
[79] Steven L. Winter, Fast Food and False Friends in the Shopping Mall of Ideas, 64 U. COLO. L. REV. 965, 969 (1993).
[80] Stanley Ingber, The Marketplace of Ideas: A Legitimizing Myth, 1984 DUKE L. J. 1, 46 (1984).
[81] See, e.g., Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963).
[82] Jerome A. Barron, Access to the Press -A New First Amendment Right, 80 HARV. L. REV. 1641 (1965).
[83] 326 U.S. at 20.
[84] ALEXANDER MEIKELJOHN, POLITICAL FREEDOM 19 (1960).
[85] Ingber, 1984 DUKE L. J. at 49.
[86] 326 U.S. 1, 20 (1945).
[87] 395 U.S. 367 (1969).
[88] Id., at 390.
[89] Id., at 390.
[90] Id., at 392.
[91] 328 U.S. 331, 354-55 (1946).
[92] ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM: THE CONSTITUTIONAL POWERS OF THE PEOPLE 26 (1960).
[93] EVE PELL, THE BIG CHILL 97 (1984).
[94] PELL 152.
[95] Id.
[96] Id.
[97] Id., 155.
[98] Id., 156-57.
[99] Id.
[100] Gerard Colby Zilg v. Prentice-Hall, Inc. and E.I. Du Pont De Nemours & Co., Inc., 2d Cir. No. 620, Docket Nos. 82-7335, 88-7425.
[101] William D. Nugent and Galleon Properties, Inc. v. Pat Haworth, Superior Court, County of Santa Cruz, No. 74598 (1979).
[102] Webb v. Fury, 282 S.E. 2d (1981).
[103] Okun v. Superior Court, 29 Cal. 3d 442 (1981).
[104] PELL 178.
[105] Id., 182.
[106] PELL 183.