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1. The First Amendment and Communication in Democratic Societies
- University of Illinois Press
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ij 1 The First Amendment and Communication in Democratic Societies the first amendment to the U.S. Constitution, which states that “Congress shall make no law . . . abridging the freedom of speech,or of the press,” functions as the principle guarantor of speech rights in the United States. The First Amendment does not uphold all citizens’ claims to free speech, however.In the latter half of the twentieth century,the First Amendment has not endorsed the right of responsible individuals and organizations to place paid advertisements on broadcast television.It has not protected the right of political candidates to print their replies in the pages of a newspaper that attacks them during an election. The U.S. Supreme Court decided in the 1970s that the public has no right to speak in print and broadcast media. Nor has the First Amendment supported a right to speak for community members who produce programming for public-access cable television or for Internet users who communicate over online service providers. The Supreme Court has not extended speech rights to citizens in either of these media.Programmers have no Court-confirmed speech rights on public-access cable channels , and Internet users have no right to send or receive electronic communications , including e-mail, over proprietary servers and other parts of the Internet’s infrastructure. In these and other cases, opposing parties, namely those controlling information and communication technologies and those seeking access to them, have asked the courts to invoke very different interpretations of speech rights. By and large, the courts have favored interpretations that privilege the free-speech interests of media owners and operators over those of other speakers, whether these were political candidates and associations, public-access programmers, or Internet users. speech rights in america This book is about competing interpretations of speech rights in the United States and why currently dominant First Amendment interpretations fail to protect a vision of speech rights appropriate to democratic societies. At its core, democracy is a system of governance in which politically equal citizens participate in their own self-rule. Democracy can also be said to require certain resources,capacities,and institutions that make self-governance possible. Some of these resources involve communication. Communication that serves democratic political processes,enabling citizens to deliberate over, define, and decide the common good, is the essence of democratic communication . The First Amendment fulfills its role as the guardian of speech rights in a democratic society when it protects the conditions necessary to democratic communication. First Amendment interpretations that fail to support these conditions or actively work against them alienate citizens from their rights and corrupt the essential workings of democracy. At present, First Amendment interpretations only partially accomplish the task of safeguarding democratic speech rights, or speech rights necessary for democratic societies.While it is generally understood to protect the right to speak in public spaces and to prohibit government censorship, the First Amendment often abnegates speech-rights protections in the media. Rather than support speaking opportunities, public spaces, and access to information, the First Amendment is used as a tool for blocking avenues of public debate and discussion and striking down policy initiatives that create speaking opportunities for the broader public. For the most part, First Amendment interpretations applied to print, broadcast, and cable favor extensive speech rights for media owners and offer few and tenuous rights to the general populace. If past First Amendment law is any indication of the future, the ability of the public to communicate over computer networks, like the Internet, may fare no better. Currently, people have many opportunities to engage in speech over computer networks, but no real rights. The legal regime, or system of rules, for the Internet has yet to take shape. Although today’s Internet offers access under terms and conditions that favor democratic communication , changes in law, policy, and industry structure could effectively foreclose these opportunities. The future of democratic communication on the Internet may well depend on how First Amendment rights evolve over this medium. The path to this future will be marked by discord. The First Amendment is a site where both competing definitions of speech rights and competing understandings of democracy itself do battle. This book locates the source [3.83.187.36] Project MUSE (2024-03-29 10:16 GMT) The First Amendment and Communication of these clashes in liberal-democratic theory and considers the implications of divergent views of speech rights on communication law and policy and on the prospects for democratic communication...