Author:	Christopher J Sichok JD Attorney at Law
Subjects:	Constitutional Law United States (Other articles) Freedom of Speech (Other articles)
Issue:	Volume 7, Number 3 (September 2000)
Category:	Comment

Contents

• Introduction
• Traditional First Amendment Theory
• The "Marketplace" in Modern America and the Disappearance of Civil Society
• Free Speech at the Mall
• Television Nation
• The Supreme Court's Response to the Evolving "Marketplace"
• The Fall Of Red Lion and Equal Access
• Conclusion: A "Brave New World"?
• Notes

Introduction

1. The First Amendment's guarantee of free expression for citizens has all but disappeared in the face of the New Economy's economic growth and mass media technology.[1] Where leafletting and interpersonal interaction in public spaces were once the dominant means of political communication, those channels are now dwarfed by the multi-billion dollar entertainment industry in which a shrinking number of corporations control television, films, and other mass media outlets.[2]

2. Of recent importance, those corporations are influencing the most national of all public democratic endeavors - the presidential election. Companies like Walt Disney Co., Time Warner, and Steven Spielberg's Dream Works SKG have contributed a combined $5,000,000 to the Democratic Party during Al Gore's 2000 Presidential bid, and have given almost as much to the Republicans.[3]

3. These corporations have transformed speech from political persuasion (which it was before the entertainment-based "information age") into profit, or at least private gain, thus eroding the spirit of the First Amendment. Furthermore, in light of mergers like that which brought America Online and Time Warner together, the number of information outlets continue to shrink.[4] This conglomeration tightens corporate control of what we see, read, discuss, and ultimately value.

4. Economic development, like corporate control of media technology, has helped reduce political discourse by turning public spaces into private property and by moving Americans from downtown areas where they interact on streets and in small neighborhoods, to the more impersonal, privately-owned suburbs.

5. This paper will examine the shift from a civil society to a consumer culture and argue that such a transition is dangerous for free expression and for the spirit of the First Amendment. It will then critique the Supreme Court's First Amendment rulings as merely upholding the expression rights of corporations and purveyors of the status quo. It will also examine possible solutions, including government regulation and creation of equal access to the dominant forms of media.

6. This paper necessarily requires analysis that cuts beneath traditional First Amendment analysis and draws upon the context in which the Amendment operates. Thus, while traditional notions like state action and the public space doctrine will be discussed, they will be treated in such a fashion as to raise questions that courts usually bypass.

7. For instance, who is to be protected, the speaker or the hearer? Is it more important that everyone speaks, or instead that every important message gets voiced, to the possible silencing of frivolous speech? Finally, although the First Amendment prohibits government abridgment of free speech, it does not mention government regulation which enhances and bolsters expression: could this be read as creating an affirmative duty for government intervention in the marketplace of ideas which parallels its ongoing involvement in our economic marketplace?

8. These questions might not arise in a court's First Amendment analysis, because, as Harvard trained lawyer and consumer advocate Ralph Nader has noted, lawyers and law students "rarely (think) quantitatively in evaluating the quality of justice. Rights (are) confused with both the availability of remedies and the ability to endure the attrition necessary to secure such rights."[5]

9. This paper applies Nader's statement to a First Amendment context, and argues that although the right of free speech exists for each citizen, her voice is silenced by her inability to secure the right. Of what use is free speech when the sidewalk is empty or when six corporate giants control almost every television program citizens view? In effect, this paper asks, of what quality is the right of free speech in a culture of consumer-oriented individuals, rather than a society of democratic-minded citizens?[6] And ultimately, how can law and the courts facilitate a much-needed reversion to the type of democracy more in the spirit of the Amendment?

   Traditional First Amendment Theory

10. The spirit of the First Amendment is based upon John Stuart Mill's notion of a marketplace of ideas and a search for truth, which are (among other foundational principles) followed by the Supreme Court in its free expression rulings. For example, Justice Holmes, in his Abrams dissent, states that "the best test of truth is the power of the thought to get itself accepted in the competition of the market."[7] Holmes furthers this notion in his famous Gitlow v. New York dissent, stating that "the only meaning of free speech is that (beliefs) should be given their chance and have their way."[8]

11. Under this marketplace model, all ideas are given equal exposure so society might work towards truth and might question its own tenets in the process. Additionally, all citizens are given equal say in order to ensure democratic rule, based upon informed decision-making.[9]

12. But the laissez-faire nature of a "marketplace" makes assumptions that have fallen into question with the progression of modern communications technology.[10] First, the market model assumes that there is active public participation facilitated by equality in access to media.[11] The assumption held true in the days of Mill and the drafters of the First Amendment, but needs to be reevaluated. As one commentator has written: "Unorganized . . . speakers are unable to compete with the wealthy corporations . . . that have access to sophisticated public relations tools and communications technologies."[12] This disparity is so dangerous to democracy and equality that "the first amendment has," in the words of Professor Mark Tushnet, "replaced the due process clause as the primary guarantor of the privileged."[13]

13. The second assumption is that all modes of communication have equal influence on the audience.[14] In other words, the audience is able to separate form from substance and give equal weight to the messages conveyed in slick, high-tech television commercials and crude, sometimes violent, street protests. But the reality is that today's consumers are wowed by costly special effects and news stories via satellite feeds, and are likely to give little thought to the messages of protesters. As one commentator has noted: "Unless the public can rationally evaluate a communication's content irrespective of its packaging, adequate access provides only the appearance, rather than the reality, of an opportunity to gain a foothold in the marketplace of ideas."[15] Since only a select few can afford to broadcast their message, the public pays little attention to speech that might call the status quo into question.

14. Not only does the market assume that citizens have equal access and that all forms of speech are given equal respect, but it also assumes that each speaker and hearer has independent opinions and inclinations which are relied upon to make sound democratic judgments.[16] But some commentators have suggested that the "market system . . . creates the wants which it satisfies," and there is no reason to expect that this "will reflect or permit the full development of the individual personality."[17] In other words, our opinions are not based upon hearing a wide range of civic-minded speakers' political expression, but only upon what has been marketed to us by those looking to make profit, not policy.[18]

15. Thus, the market is a sort of self-fulfilling prophecy disguised as a free-access realm of free expression. It is a supply-driven, rather than a demand-driven industry: "Communications flowing into the market largely reflect conventional political, economic and social points of view . . . (where) dominant groups espousing established perspectives . . . find their views largely adopted by the public."[19]

16. In his new book Rich Media, Poor Democracy, Robert W. McChesney explores this supply-driven market in depth, recalling earlier media eras when cities had multiple daily newspapers, each featuring labor columns and news of interest to the working class.[20] Today, however, according to McChesney, news is synonymous with business: CNN's top news show is "Moneyline," stock reports flash across television screens, and business news is treated as the most "real" of all news. McChesney points to the danger of this type of coverage: a very small percentage of Americans own stock or are affected in any direct way by this news.[21]

17. Because we no longer have equal access, equal modes of communication, or independent thought, the marketplace of ideas is ineffective in promoting democracy. We are no longer the civil society that Mill envisioned; rather, we are a nation of consumers, held together not by ideas, but by our preferences for products.[22]

    The "Marketplace" in Modern America and the Disappearance of Civil Society

18. The movements towards limited access and profit-based speech have produced "a fragmented society, where individuals are isolated one from another except as markets coordinate their ideas and activities."[23] This fragmentation causes three interrelated trends harmful to free expression: the shift from civil society to a consumer nation; the disappearance of public spaces as speech has transformed from a public to a private good; and the role of the market as a "hidden censor."

19. The "marketplace of ideas" was conceived in the context of a civil society, where people encountered each other as neighbors, friends, collaborators, and organizers of local politics. Although poorly educated and highly illiterate, the people were "commoners" who daily encountered each other in common spaces. Their free expression, at its best, was civic discourse and public speech pertaining to the conduct of affairs. The commoners were also public citizens, and were influenced by political speech in which speakers and hearers regarded each other as voters, taxpayers, and politicians. [24]

20. Today, although we are greatly educated, we are misinformed and individualistic. We see each other as consumers, producers, clients, and competitors. We interact vertically in hierarchies, rather than laterally in even, non-monetary exchanges. That is to say, we respond to rankings, "corporate ladders," and employers; we are no longer neighbors and "commoners."

21. Furthermore, we have few public spaces, unprofitable speech is seldom heard, and even the "political speech" we see on television is only that which is good for ratings. Television "politics" are polarizing, antagonistic screaming matches such as "Crossfire," where we watch less to hear the issues, but more in hopes of seeing conflict.[25] Thus, the market acts as a hidden censor that constricts the compass of free expression.

22. Since we no longer regard each other on personal, civic levels, we have no need to live in common neighborhoods. Thus, today over 55% of Americans live in the suburbs that have killed public spaces.[26] Today's private community has no town hall, no grange, no public square or downtown storefront church.[27] And the few public spaces, like schools or municipal buildings, are widespread and only adjacent to highways, not sidewalks. The only places where people can congregate are shopping malls, where the activity is consumption, not speech.[28]

    Free Speech at the Mall

23. Shopping malls have gained notoriety as having "replaced the downtown of yesteryear."[29] As one commentator has observed, "Countless Americans practically live their lives in the modern mall," it is a "central, essential American structure, where people conduct their daily lives."[30]

24. However, the one aspect of life that is missing in this setting is the "people, activities, or ideas that are not pre-approved by the management." "(Shoppers) are not exposed to the individual protesting governmental policies, to a union organizer protesting a non-union store, or to third party candidates seeking enough signatures to get on the ballot." They are "kept in the dark, . . . removed from the robust public debate that is essential to the proper functioning of our democracy."[31]

25. The danger is clear: the malls have become a new downtown with one major divergence from the old downtown in that political speech is generally not permitted. As Owen Fiss has noted in his proposal to open the malls to the exchange of ideas in the spirit of the First Amendment:

26. If the people are to be well-informed, able to understand the debate, and play their democratic role, they cannot be shielded from speech in their daily lives. However, that is the result of the current state of federal law. People live in a vacuum without meaningful debate. Without such debate, the shielded individuals are unable to fully understand and participate in the great democratic debate. And with fewer and fewer well-informed participants, we all suffer and our nation suffers.[32]

27. The Supreme Court has noticed the emergence of malls as the dominant places where Americans congregate. Justice Marshall, in writing for the Court in Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., a full thirty years ago, observed that "the largescale movement of this country's population from the cities to the suburbs has been accompanied by the advent of the suburban shopping center."[33]

28. However, the movement is of a much larger scale than Marshall could have envisioned: in a typical month, 185 million adults over age 18 (94% of the total population) visit a shopping mall in the U.S., and some malls have reported upwards of 37,000 shoppers per day.[34]

29. What is the significance of 94 percent of American adults congregating in privately-owned shopping malls to do their shopping and, in some cases, visit their local post office, police station, high school, bank, or Congressional representative? The importance lies in the threat to democratic discourse, especially when the Supreme Court employs the rationale of PruneYard Shopping Center v. Robins. In Pruneyard, the Court sided with mall owners in prohibiting political speech on site, because "there is a risk that views of the political activists will be attributed to the (mall owners)."[35]

30. The Court's rationale is weak, because this incorrect perception is unlikely, and even were it to occur, there are ways to clarify the source of the speech without inhibiting it. For example, the mall could post signs as disclaimers of its affiliation with the speakers. Or it could allow speakers who represent both sides of an issue to speak at different ends of the mall.

31. Furthermore, the rationale does not take into account speech that in no reasonable way would be attributed to the mall in the minds of the hearers: that which protests the mall itself, for hiring non-union labor, destroying locally-owned independent businesses, or harming the environment.

32. A colorful, yet striking example of the speech that is inaccessible to most Americans is that of the Media Foundation, which has sponsored the world-wide "Buy Nothing Day" for the past seven years, in protest of over-consumption and its effects on the environment. The organization approximates that close to one million people globally participate in Buy Nothing Day each year: they find out about it through word-of-mouth, or through the Adbusters magazine or website.

33. Last year, numerous leafletters set up tables in malls nationwide in support of the group's message; most were escorted from mall premises by security. Furthermore, the Media Foundation submits a "Buy Nothing Day" television advertisement to ABC, CBS, and NBC each year. The networks always refuse, claiming that the ad threatens "the current economic policy in the United States."[36]

34. Could the Media Foundation ever get its message to the 185 million Americans that attend shopping malls monthly? Or is its brand of political speech -that which calls into question consumerism and materialism -to go largely unheard in our marketplace of ideas? Ultimately, the duty to weigh threats to "the current economic policy in the United States" should rest with the government, not private television networks. Or, as Harvard Law Professor Laurence Tribe has remarked regarding the refusal, "at least the networks make it clear who butters their bread."[37]

35. "Buy Nothing Day" is just one example of the type of speech that goes unheard in today's "marketplace," because the mall, not the street, is where most Americans spend their time. They have no choice, now that most reasons they would leave the house, from attending public high school to registering to vote, are at the mall. Thus, even to the risk of neglecting property rights in favor of speech rights, the Supreme Court should heed its own words in Marsh v. Alabama, where Justice Black wrote,

36. The town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish them from any other town and shopping mall except the fact that the title to the property belongs to a private corporation.[38]

37. If what Justice Black wrote is true, then the downtown shopping district and the mall are identical except for the fact that the latter is enclosed, while the former is in the open air. The enclosure requires ownership: the roof, the floor, and the air between are all owned by someone. Should that ownership give the title-holder the right to prohibit 94% of American adults from the type of democratic discourse necessary for proper functioning of the First Amendment?

38. Or, as the court suggested in Marsh, is the preservation of a free society so far dependent upon the right of each individual citizen to receive (political) literature that the distribution cannot be prohibited?[39] The Court further erased the distinction between public and private land in the Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc. case, in which Justice Marshall wrote for the majority:

    It is clear that if the shopping center premises were not privately owned but instead constituted the business area of a municipality, which they to a large extent resemble, petitioners could not be barred from exercising their First Amendment rights there on the sole ground that title to the property was in the municipality.[40]

39. It seems, as Justice Black says, that in there being "nothing to distinguish" the shopping mall from the downtown shopping district, the mall is not purely private property: even though it is privately owned, it has a public identity. Thus, it is a sort of "hybrid property." As Justice Frankfurter noted in Marsh, legal title is not determinative; rather, "the public function is a matter of actual use, not legal fiction." Frankfurter continues: "Title to property . . . cannot control issues of civil liberties."[41]

40. Although Marsh involved a company town and not a shopping mall, the same rationale should apply, given the increasing role that the shopping mall has played in most Americans' lives. It has grown to such prevalence, in fact, that many state supreme courts have sought constitutional ways to open these private enterprises at least to public activities, if not entirely to public discourse.

41. The Supreme Judicial Court of Massachusetts, for example, has protected free political expression in privately-owned shopping malls through its holding in Batchelder v. Allied Stores Int'l, 445 N.E.2d 590 (Mass. 1983). The court held that any person soliciting signatures in a mall that would help provide access to the ballot might enjoy protection under the state constitution because of the protection of the right of free elections.[42]

42. However, the court carefully framed its holding as a narrow, fact-specific situation, and stressed that its holding dealt solely with "ballot access and not with any claim of a right to exercise free speech rights."[43] Furthermore, the court stressed that seeking signatures is unique, and that most "ideas and views can be transmitted through the press, by door-to-door distributions, or through the mail, without personal contact."[44]

43. Despite its limitations, however, the Massachusetts decision is an important step towards recognizing the right of public speech on private property.[45] In this spirit, Oregon has also provided protection of speech in malls. In Lloyd Corp. V. Whiffen,[46] the Supreme Court of Oregon ruled that solicitation of signatures for ballot initiatives within shopping malls is protected. However, the court's reason is different from that of the Massachusetts court.

44. In Whiffen, the court finds that the public interest in political discussion would be seriously threatened if a complete ban on this type of activity were allowed. Like the Massachusetts court, however, the Oregon court is hesitant to open malls completely to speech, and rests its conclusion on a "subconstitutional level" because it does not want to declare a general constitutional right to speech on public property.[47]

45. One year later, in State v. Cargill,[48] the Oregon appellate court built upon this protection but went further in declaring the solicitation of signatures to be a state constitutional right. The ruling chronicled the development of the modern mall into the present-day version of the town square and acknowledged that gathering signatures is "substantially impaired -almost doubled in time -if conducted on the public walkways or in parks instead of in the mall."[49]

46. Thus, these three state court cases serve as examples of how the judiciary can open malls to not just signature gathering, but also to robust public debate. Through citing public interest concerns, analogizing the mall to the public square, and acknowledging that the First Amendment is not always subordinate to private property rights, the courts, through recognizing the centrality of the mall in society, can protect speech rights in shopping malls.

47. Even if the court were to employ a strict interpretation of the First Amendment and argue that the actions of a shopping mall are in no way state action, speech still might be protected by focusing upon the state entanglement in modern mall developments. First, and most obviously, the state granted the private property rights to build the mall. If this grant violates the First Amendment by eliminating the only real way of making a protest visible to members of the local community, then there is indirectly a state action which interferes with free expression.[50]

48. Second, and less obviously, malls require much state support, in the way of state "tax breaks" and construction of new roads and sewer lines.[51] This represents the kind of entanglement the Court might concern itself with in determining whether there is state action for a First Amendment violation of the establishment clause.

49. However, mere funding is usually not enough. The key issue in determining whether this entanglement amounts to state action is whether this is more than "mere government acquiescence," and instead something which amounts to "tacit approval" or ratification of the private enterprise.[52] In such situation, perhaps government's silence is a type of state action.[53]

50. The civil rights cases are an example of a time when government inaction amounted to state action, because the government had to take affirmative steps in order to protect the constitutional rights of individuals.[54] Now, the disempowerment and silencing of individuals in an era of corporate communication might be the same type of situation for purposes of state action analysis. If state law can no longer validly distribute authority between government (or collectives) and individuals as it purports to do, then state action should be found in order to protect the rights of the latter.[55] As Laurence Tribe has written, "government tolerance of private action could be 'state action' if the private action interfere(s) with common law liberty."[56]

51. The state action discussion is an important one, and will run through the ensuing discussion of corporate media monopolization, which, like the privatization of public spaces, is not literally a state action and is constitutionally protected under a formalistic interpretation of the First Amendment. However, in the following analysis, I make clear that corporate control of media, like the mass development of shopping malls, violates the spirit and purpose of the First Amendment, and is thus unconstitutional.

    Television Nation

52. When Americans are not at the shopping mall, they are often watching television. It is necessary to discuss our excessive television watching because, although its connection to shopping malls is not immediately recognizable, there is a link: malls take away our public geographic space in the same way television eliminates our public internal space. In other words, not only do corporate television networks deprive common citizens of use of the airwaves, but also they tend to focus on for-profit commercial entertainment to the neglect of public discourse. Thus, television is as much responsible for the decline of discourse as are the malls.

53. According to Professors Ronald K. L. Collins and David M. Skover, "television enjoys a dominant and almost unchallenged status in our society," with people tuned in on the average of forty-seven hours weekly, and young people consuming one hundred commercials daily.[57] It is well documented what is being viewed on these 150 million televisions is for-profit entertainment, not democratic discourse.[58]

54. It is a type of entertainment that social commentators and writers have warned of for a half-century. Aldous Huxley, for example, portrayed a nightmarish Brave New World in which government had no need to censor dissent, no cause to hide truth, and no ground to ban serious discussion, because the people had been numbed by constant entertainment. In Huxley's fictional World, television, among other electronic toys, has produced a world of "passivity, pleasure, and trivialization . . . the governing maxim is, 'everybody's happy now.'"[59] Life becomes one distraction after the next -the O.J. Simpson trial, the death of John F. Kennedy, Jr., so-called "Tabloid Television" -to the neglect of critical discourse that examines and refines our positions in the democratic spirit. Consider Huxley's description in questioning the development of this passivity, a development which free speech advocates such as Mill could never have predicted and which outdates their "marketplace" model:

    The early advocates of . . . free press envisaged only two possibilities: the propaganda might be true or it might be false. They did not foresee what in fact has happened, above all in our Western capitalist democracies -the development of a vast mass communications industry, concerned in the main with neither the true nor the false, but with the unreal, the more or less totally irrelevant. In a word, they failed to take into account man's almost infinite appetite for distractions. [60]

55. Huxley's quote seems especially relevant in an era where we choose our president more for her or his personality, appearance on television, or personal life, than we do based upon substantive, relevant issues.

56. In her book The Argument Culture, Deborah Tannen explores our obsession with these more or less irrelevant distractions and how it has been facilitated by our relentless television viewing. She warns that we have misread the First Amendment to say that those who have the power of the press are obligated to publish outrageous, false views, in the name of "equal time." But it is a false equality according to Tannen, who charges the "First Amendment (as becoming) a pretext to justify the airing of only views that make for the most entertaining fights."[61]

57. Thus, objective truth or harmonious agreement is portrayed less than debate and controversy. Tannen gives the example of television shows airing Holocaust deniers in an attempt to distract viewers with a heated controversy, while real discussion about legitimate issues -or truth -is forgotten.[62]

58. Here is another example, taken from an important election in my home city of Pittsburgh, Pennsylvania. Although the names may not be familiar to most readers, the situation is one that repeats itself continuously around the country on a local and national level (and is sure to emerge as the November presidential election approaches). During the Fall, 1999 campaign to elect the Allegheny County Executive, television viewers in western Pennsylvania were likely to know that Dr. Cyril Wecht, the Democratic candidate, had missed meetings as a member of County Council and had allegedly used County money to take elaborate vacations. However, those same viewers were likely to vote without knowing about any of the substantive issues in the campaign, or even what responsibilities the holder of the newly created office would incur.

59. This local example is a repeat of what has occurred nationally countless times: one candidate attacks the other's character or track record, rather than discussing relevant, timely issues that affect voters. As one commentator has noted, when television is our dominant medium, "the line between important political discourse and pure entertainment becomes increasingly blurred." It is an antagonistic climate that is perpetuated by the "argument culture," which, in the words of Tannen, chooses to air only "the most entertaining fights." Thus, few citizens would have paid attention to Wecht's opponent, local tycoon Jim Roddey, if he had appeared on television and listed all the points of agreement that he and Wecht shared. Such display of unity makes for boring television.

60. It is boring for viewers to watch long discussions filled with nuance, sophistication, and uncertainty on television, because of the nature of the medium itself. As veteran reporter Daniel Schorr has noted, "Television allows people to experience more and understand less. It appeals more to the sense than to the intellect."[63] Picture stories capitalize on aesthetics and emotion and do not promote synthesis, analysis, or criticism, nor do they "enhance any desire to take a longer and harder second look at our culture and its directions."[64] Neil Postman, in his book, Amusing Ourselves To Death, agrees:

61. Because time is so precious on television, because the nature of the medium favors dynamic visual images, and because the pressures of a commercial structure require the news to hold its audience above all else, there is rarely any attempt to explain issues in depth or place events in their proper context.[65]

62. In other words, as Marshall McLuhan is famous for realizing in his seminal Understanding Media, "the medium is the message." For example, for all of the discussion surrounding the March 1999 high school shootings in Littleton, Colorado[66] and how media violence may have played a role, television violence and viewing have not decreased. The debates provided entertaining dichotomy for a few months, and have died now that the subject has become unfashionable. Moreover, most viewers are probably more inclined to remember the bloody image of the wounded student falling from a second-story window than to remember the issues of the ensuing televised discussions of gun control or media violence.

63. It might be argued that these televised discussions are within the spirit of free expression, since they allow all ideas to be heard. Nothing could be less true, however. The fact is that commercial broadcast mandates television programs to appeal to mass appetites. Thus,

    The desire for popularity, and in turn, profits, gives rise to television's predictab(ility) . . . in attempting to maximize profits, commercial television networks reach for the lowest common denominator in discourse. With profit-maximization as the governing norm, television distorts traditional first-amendment values by associating the lowest passions with the highest ideals.[67]

64. The cost of this distortion of the First Amendment is an amalgamation of uninformed individuals who spend forty-plus hours a week viewing television's version of reality -i.e., polarized controversy that suggests all issues have only two well-defined sides. Moreover, most issues never reach the airwaves. As Ralph Nader has observed,

    Demographic appeal is narrowed to exclude the elderly, very young, ethnic groups, and the underclass, and programs reflect this exclusion. Certain program formats are even . . . eliminated. There are, for example, no fine arts programs on commercial television . . . (and) documentaries have been drastically cut back.[68]

65. Thus, because of the time we spend in front of televisions and in shopping malls, we are no longer a public; there is no community; there is only a giant entertainment culture of individualistic consumers. We are shielded from any political speech of consequence while we are in the mall, and anything that is not entertaining or within our already-defined scope of acceptability (as defined by advertisers and their research of target audiences) is filtered by network programmers before it hits the airwaves. What can be lauded as free-market capitalism and entertainment is actually very dangerous, if Bill Moyers' ironic Titanic metaphor is true, that

    Behind the charm and smiles, behind the one-liners and the pretty pictures, . . . the government rots, its costs soar, its failures mount . . . . But, on the bridge of the ship of state, no one's on watch and below deck no one can see the iceberg but everyone's feeling good.[69]

66. Not only does television inhibit the marketplace of ideas, but it also threatens the public order function of the First Amendment. Under this traditional theory, the relationship between constitutional assurance of an opportunity to communicate ideas and the integrity of the public order is essential. Justice Cardozo recognizes this in Palko v. Connecticut, when he remarked that "neither liberty nor justice would exist . . . (without) freedom of thought and speech" since free expression is "the matrix, the indispensable condition, of nearly every other form of freedom."[70]

67. Justice Brandeis went one step further in his Whitney opinion, in which he stressed the danger of repressing access to the modes of communication:

    It is hazardous to discourage thought, hope, and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances.[71]

68. If the critics of shopping malls and television (to whom I have cited above) are accurate in their depiction of our current culture, then I suggest a possible link between our "discourag(ing) of thought, hope, and imagination," and the recent random violent outbursts among Americans. In other words, the media monopoly has produced lack of opportunity for the disadvantaged and dissatisfied of our society to discuss their grievances effectively. Thus, maybe these citizens would not have felt the need to resort to such desperate and tragic measures -like massacring fellow high school students or bombing the Oklahoma City Federal Building -to get the public's attention, had they, as Justice Brandeis put it, had the "opportunity to discuss freely supposed grievances."

69. Barry Sanders, in his book The Private Death of Public Discourse, examines the public order function of the First Amendment in depth, discussing numerous examples of the new American mood that "if you can't be heard, you might as well be tough."[72] Sanders lists the features of life in the information age: militia groups, hostile takeovers, charging juveniles as adults in order to appear "tough on crime," and a general culture that is hateful and mean-spirited.[73] Sanders suggests that the media's polarization of issues has contributed to this negativity and closed-mindedness and resolves that only through public life and a return to "genuine conversation, motivated by openness and goodwill," can we get away from "predetermined positions defended through nasty language."[74]

70. Is there any solution to our disappearance of public spaces and public discourse in light of the privatization and televising of our once civil society? Can the Supreme Court do anything to help restore the now diminished spirit of the First Amendment? Clearly, judicial intervention is mandated in light of the reality that most Americans, like the Buy Nothing Day people, can never compete with the media giants or the shopping malls in having their brand of political discourse reach the public.

71. The remainder of this paper examines the legality of judicial enforcement of the First Amendment in such a way as to invoke an affirmative duty to keep airwaves and shopping malls open to free expression. This is a difficult task, considering the fact that television networks, advertisers, and shopping malls are not violating the letter of the Amendment. Remember that, despite their hindrance of free speech, they are private entities -there is no state action, and technically no facial First Amendment violation. I propose, however, the same type of state action and First Amendment analysis that I have discussed above: one that mandates affirmative government steps in order to renew individuals' constitutionally protected right to free expression.

    The Supreme Court's Response to the Evolving "Marketplace"

72. Although the Supreme Court has admitted that the marketplace of ideas is now a myth,[75] it has only reinforced the power of commercial, profit-oriented speech at the expense of civic-minded, public speech. Part of the way it has bolstered the status quo is by ignoring the ideological drift of the First Amendment.

73. Traditional First Amendment theory assumes that the right of free expression is neutral, that is, it does not favor one political ideology or another. But it is important to inquire whether over time the usage of the Amendment can shift in order to benefit unintended and harmful speakers. These speakers are harmful because they silence the vast majority of interests. This is the very shift that First Amendment scholar Frederick Schauer warns against in citing the development of commercial speech rights as leading to the rightward ideological drift of the First Amendment.[76]

74. Schauer argues that because of the increasingly high costs of advertising, the accelerating costs of gaining access to the media, and the costs stemming from increasingly sophisticated communications technology, "the costs necessary to make one's voice heard over a number of logarithmically increasing voices," the only people who benefit from free expression are the wealthy and corporations.[77] In other words, "free speech jurisprudence has become the congenial cohort of corporations and conservatives."

75. Not only does it take money to be heard, but it also takes what Schauer calls "persuasive abilities," i.e., fame, style, gender, race, class, ethnicity, and physical appearance. In other words, who gets heard is usually who is white, rich, and/or good-looking. Certainly, angry protestors or people who choose to live outside of the realms of acceptability by most Americans are not likely to host a prime-time special any time soon.[78]

76. Schauer warns that even if these privileged speakers are not involved directly in the political process, their influence upon it is unmistakable. Not only are they more advantaged by the laissez-faire free expression approach, but they are more likely to "use that same power to steer governmental action in the directions that would be most favorable to them."

77. Thus, even if the First Amendment were shown to be neutral in its application today, the fact remains that "formal neutrality favors those who are already the beneficiaries of existing imbalances in economic and social power." In other words, the First Amendment as it currently stands does nothing to ensure that new speakers or ideas will get heard. Rather, it only ensures that more of the same ideas will flood the airwaves.

78. A good example is the boom of cable television networks. One would think, were the marketplace of ideas functioning to promote a wide range of opinions, that there would be network documentaries that explore non-traditional modes of life. For example, there could be a feature story on anti-consumerism, or there could be muckraking news networks that reported on corporate wrongdoings. But the reality is that cable networks, in order to maximize profits, must appeal to people in ways which people already enjoy -they find the low cost of rerunning network programs, rather than producing original shows, the most beneficial. Thus, we have 24-hour rerun networks like "TV Land," which further reinforce the values of the corporate, advertising-driven media.

79. This rightward shift in law is nothing new, according to Professor Steven L. Winter, who notes that "it is frequently the case that an idea which seemed workable or congenial in one setting proves counterproductive or harmful in another."[79] Professor Winter gives the invention of modern standing law as an example of the changing function of a law under changing circumstances. Where it was once viewed as a tool for protecting progressive legislation, it turned out, under later conservative Supreme Courts, to accomplish quite the opposite: it decimated entire classes of constitutional rights by rendering them unenforceable. Likewise, the First Amendment's political valence is now the opposite of its origins: it produces an apathetic, rather than an informed public, and it has helped decrease voting participation while increasing our consumption and tendency to stay home on election day.

80. It is Schauer's position that government neutrality towards free speech and formal guarantees of freedom of expression do not yield equality of access to the means of communication. What is needed, it seems, are affirmative steps through legislation and the Court to provide this equal access, since our laissez-faire "marketplace" model has failed the task.

81. It is clear that an anomaly exists in our system of free expression: "although the rhetoric surrounding the First Amendment purports to protect all expression, our laws are, at best essentially indifferent to creating opportunities for expression." Telling an unpopular speaker that he will not go to jail for his expression is of little value if he has no audience. While he speaks from the courthouse steps on a Saturday to a few passersby, he remains ignored by almost everybody else. The majority of Americans stay home and stay overwhelmed by the messages they receive from television and corporate America.

82. There seems to be a legitimate Constitutional problem here: a right that cannot be meaningfully exercised is, after all, no right at all.[80] There is no reason why the law could not ensure diffusion of the power of expression and in turn ability to affect the political process. Courts have stepped in to ensure equality in other constitutional rights. An obvious example is the guarantee that all citizens may exercise their right to counsel.[81] Perhaps there could be a constitutional "right to expression" read into the First Amendment's prohibition of governmental "abridgment" of speech. If so, it would seem that the government's failure to take affirmative steps is in effect abridgment.

83. The idea of a First Amendment right to access is nothing new: it was proposed nearly thirty five years ago by Professor Jerome Barron. In his landmark article, "Access to the Press -A New First Amendment Right," Barron explores the fact that the First Amendment may have been realistic in the eighteenth century but is now little more than quaint or romantic given the extraordinary technological developments in the communications industry. The self-operating marketplace of ideas, according to Barron, has ceased to exist, and the mass media's "development of an antipathy to ideas requires legal intervention if novel and unpopular ideas are to be assured a forum."[82]

84. Here are Barron's legal arguments for equal access. First, the court needs to heed its recognition in Whitney and Thornhill that the constitution must inhibit "the occasional tyrannies of governing majorities" from throttling opportunities for discussion. Barron asks whether it is "such a large constitutional step to take the same approach to nongoverning minorities who control the machinery of communication." In other words, seek antitrust legislation to break up the media monopolies. As Justice Black wrote for the court in Associated Press, "Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not."[83]

85. Barron's argument is based, in part, upon Alexander Meiklejohn's assertion twenty years earlier that by the words of the First Amendment, "Congress is not debarred from all action upon freedom of speech. Legislation which abridges that freedom is forbidden, but not legislation to enlarge and enrich it."[84] Clearly, lack of access is a problem that many have noticed, including literary figure Alexander Solzhenitsyn, who quipped, "enormous freedom exists for the press, but (due to unequal access), not for the readership."[85]

86. There are various proposals to ensure equal access rights in order to overcome disparities in speakers' capitalization, acceptance, resources, stature, and luck. First, the Supreme Court could view the media monopoly as an antitrust problem. The Court has hinted at this method of reform in Associated Press v. United States:

    Surely a command that the government itself shall not impede the free flow of ideas does not afford non-governmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom.[86]

87. But the Associated Press case was decided close to fifty-five years ago, before many cities reduced their number of daily newspapers from more than one to one or zero, and before most of what we see and hear became concentrated in six corporate media giants. Fifty-five years ago, there were not media conglomerates like Disney and Turner. Thus, it seems that the words the court uttered in Associated Press would become more, not less, relevant in the face of the growing monopoly.

88. The idea that the marketplace of ideas might require regulation in order to ensure the openness of our democratic forum is not alien to the Supreme Court. In fact, the court specifically addressed such concerns in Red Lion Broadcasting Co. v. FCC.[87] Red Lion was a landmark decision because for the first time, the court acknowledged and acted upon the futility of complete reliance on the marketplace of ideas concept. It recognized that the First Amendment protections claimed by the media have become a means of inhibiting, rather than promoting speech.

89. At issue in the case was the fairness doctrine, which requires that radio and television broadcasters present discussion of political issues and that each side of the issue be given fair coverage.[88] The broadcasters in the suit claimed that rules related to the doctrine violated their First Amendment freedoms by compelling them to air programming they did not wish to air. The court rejected their arguments and instead recognized a higher right than that of broadcasters: "It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount."[89]

90. Red Lion is a landmark because it recognizes the constitutionality of government intervention in broadcasting in order to protect the speech rights of minorities to whom access to the airwaves has traditionally been too expensive. The court admitted that the market mechanism had failed and thus required the media to grant opposing parties access to its resources to prevent single viewpoint dominance and to ensure diverse opinions. In other words, "there is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all."[90]

91. Red Lion articulates a very different view of the First Amendment from the traditional "free press" and "free speech" rhetoric. Its view seems to accord with that of Justice Frankfurter, who, twenty-five years earlier, stated in his concurring opinion in Pennekamp v. Florida[91] that "freedom of the press . . . is not an end in itself but a means to the end of a free society." Frankfurter's warning that the First Amendment must be perceived and applied as a mere means to an informed citizenry, rather than an end for profit-oriented broadcasters and advertisers, has been nearly forgotten in our "information age." In other words, we no longer heed Red Lion, Frankfurter, or Professor Alexander Meikeljohn's idea that "what is essential is not that everyone shall speak, but that everything worth saying shall be said."[92]

    The Fall Of Red Lion and Equal Access

92. The Court's notion in Red Lion, that the rights of citizens to gain information is more important than corporate speakers' rights to sell their products and ideas, has been ineffectual for several reasons. First, in order for Red Lion's equal access mechanism to be triggered, there must be a political issue aired in the first place. The response the court envisions may only lead to dualistic, polemical thinking, to the neglect of enhancement of true understanding. It is this divisive, reactionary type of debate that has helped produce our political vacuum (devoid of meaning and substance) in the first place.

93. Moreover, allowing the opposing side of an issue to speak is not the same as airing documentaries on environmental decay, the arts, or our culture, from nontraditional or disenfranchised points of view. Nor does it recognize that in fact more, or less, than two sides might actually exist. As Deborah Tannen writes in her Argument Culture, presenting both sides of controversial issues often makes the debate, not the issues, the attraction. Thus, "political" programming is not much more than an entertaining screaming match.

94. There is another reason why providing equal access to the media is not enough: it assumes that there are individuals who are courageous enough to risk their livelihoods in speaking out. Corporations have overwhelming power to silence their critics. This corporate censorship of the expression of ideas occurs in two ways, indirectly through the power that advertising has over publishing, and directly through libel suits.[93] These two types of censorship share an important characteristic: since the censors are private entities, they are not restricted by the constitution and courts' traditional "state action" doctrine.[94]

95. The first type of censorship, indirect, may not even be explicit: often times, corporations are so powerful that they need not even state what they want removed from the publications and broadcast channels that they own or on which they broadcast. Rather, the publishers "anticipate their wishes and carry them out without even asking."[95]

96. The theory behind indirect corporate censorship is simple: if broadcasters antagonize advertisers, they lose money. Since profit is crucial to the survival of any media operation, the media outlet often automatically censors itself in order to avoid trouble. Thus, for example, there is no exposé of the cosmetic industry in women's magazines, and there are no stories on alternate energy sources in car magazines. Additionally, for the most part of earlier decades, the press knew that cigarettes could kill, but no stories could be written about it because of the heavy advertising dollars that cigarette manufacturers paid to the media.[96] Thus, journalism is "prostituted . . . (coverage is) bleached . . . sanitized."[97]

97. The immediate reaction is that the harms of smoking cigarettes eventually became public controversy, anyway. However, there is no telling how many other threats to the public health are kept from viewers and readers by self-interested advertisers. And our current public information regarding the dangers of smoking does not help those who became addicted while press coverage of the issue was silenced.

98. The case of Gerard C. Zilg is another example of corporate silencing of dissent. Zilg, a New York lawyer, wrote a book entitled Du Pont: Behind the Nylon Curtain, published by Prentice-Hall in 1974, in which he characterized the munitions manufacturer as a war profiteer. Zilg also exposed various scandals and frauds associated with the corporation.[98]

99. Du Pont immediately wielded its corporate power (or, from its perspective, its "First Amendment rights to speak out against a book of which it disapproved") in threatening the publisher and the Book of the Month Club with libel suits. Both companies, in response, allowed the book to go out of print, even though sales were rising. Zilg, the author, tried to generate publicity for the book on his own by getting parts of it published in Delaware newspapers. Unfortunately for Zilg, however, most papers in the state were owned by Du Pont.[99] Zilg brought action in federal court, which ruled that Du Pont had every right under the First Amendment to express vigorously its opinion of the book.[100]

100. The very fact that a corporation can silence its critic by doing little more than making phone calls or sending letters -and then can defend its actions on free speech grounds -reveals a skewed interpretation of the First Amendment. It is an interpretation that has allowed some corporations to be even more direct than Du Pont in censorship by bringing libel suits (which sometimes have no basis in law or fact).

101. There are numerous examples of corporate libel suits used as a weapon by the rich and powerful to retaliate against challengers to their interests. A California housewife protested a land development in a letter to a newspaper and was sued for $3 million.[101] A West Virginia man who earned less than $10,000 a year complained to the EPA that a coal company had polluted a river near his house and voiced his concerns in a local paper, and was sued by the coal company in a $200,000 libel suit[102] The president of a local League of Women Voters led a successful anti-development ballot initiative and wrote two letters to editors of newspapers and was sued for $63 million for libel and slander by condominium developers.[103]

102. The suits, even though they are usually dropped, are used as a weapon to scare corporate critics into keeping silent.[104] The suits are a dangerous method employed by corporations for the purposes of censoring important speech. As Richard Criley, former executive director of an ACLU chapter stated:

103. The First Amendment is being threatened and the threats have a certain class basis. It's only those who have enough money to play around with litigation who can afford to (bring frivolous libel suits in order to chill critical speech.)[105]

104. Thus, the doctrines promoting equal access to media may not be enough while corporate entities can succeed in silencing dissenters through direct and indirect censorship. A lawyer for an antinuclear group that was sued in a fashion similar to the above-mentioned libel suits, sees these suits as "a signal (being sent) by large corporation(s): run afoul of our interests, and we will attack you . . . . People are less likely to speak out on issues if their target, a corporation, indicate(s) it might sue them for millions of dollars."[106]

     Conclusion: A "Brave New World"?

105. Unfortunately, what holds true for the equal access doctrine is true for most attempts to open profit-oriented broadcasting to democratic discourse: it generally fails. This failure is attributable to the fact that the concentration of wealth cuts across all facets of our culture; it is not isolated in the realm of communication. A realignment of media access might not be possible without a redistribution of wealth on the whole. Such a shift, however necessary -and unlikely -is beyond discussion within the scope of this paper.

106. Given the concentration of resources and class disparities that we face, are there ways to return more to the spirit of the First Amendment? Yes. First, courts could reorient their First Amendment analysis in such a way that the rights of hearers, not speakers, are paramount. Free expression would then be viewed not as an end in itself, but rather as a means to the nurturing of a more informed, sophisticated citizenry -one worthy of making democratic decisions.

107. Under this reorientation in First Amendment theory, would every individual have access to the airwaves and the malls' center courts? No. Rather, everything worth saying would be voiced. Courts or Congress could develop rigorous standards by which to empower groups whose speech is worthy of mass broadcast -the criteria could parallel that which the National Endowment for the Arts uses in distributing its grant money. The system, although potentially flawed, would be a movement in the proper direction -towards the respect for ideas and expression, and away from the arbitrary basis (money) that currently decides who speaks and who does not.

108. Ultimately, the spirit of the First Amendment has been lost because contexts have changed: through communications technology and economic development, we are no longer tightly knit communities with town squares and town meeting. We are a national culture that responds to high-tech, high-powered broadcasts. Thus, new rules and perspectives are mandated, so that a revamped "marketplace of ideas" might truly reflect the spirited, sophisticated democratic discourse necessary for effective self-government.