Speech Rights in America: The First Amendment, Democracy, and the Media

2. Rethinking Speech Rights

ij 2 Rethinking Speech Rights every interpretation of speech rights relies on ideas about democratic communication to give it meaning.But understandings of democratic communication are characterized by different,sometimes irreconcilable,visions of the role of communication in political and social life. Further clarifying what is meant by democratic communication and its link to speech rights is an essential step in any effort to interpret speech rights in a manner appropriate to democratic societies.The deep links between liberal-democratic theory and speech-rights interpretations are seldom thoroughly elucidated, however. Scholars who do address the relationship between speech rights and democratic communication turn most often to marketplace analogies, participatory-media theory, or social-rights approaches to explain the normative role of communication in a democracy and justify a preferred definition of speech rights to support that role. While these theories offer some useful and important insights, they fall short of providing adequate law and policy tools for regulating media and protecting speech rights in liberaldemocratic societies. Before embarking on a closer analysis of liberal-democratic theory, I offer here a brief review of those theories most commonly used to advocate for preferred understandings of democratic communication and speech rights. I do so to underscore their theoretical contributions to understanding the requirements of democratic communication and their shortcomings when it comes to building the conceptual bridge needed to move from the realm of theory to adequate definitions of speech rights. As I will argue throughout this chapter, only liberal-democratic theory can provide that bridge. Rethinking Speech Rights 15 Popular Theories of Democratic Communication and Speech Rights Marketplace analogies have their roots in laissez-faire economic theory and draw on contemporary thinking about free markets, as well as the popular marketplace-of-ideas metaphor, to articulate their view of democratic communication . Justice Holmes’s dissent in Abrams v. US (1919) offers the classic formulation of the marketplace-of-ideas metaphor. The metaphor holds that a free and competing trade in ideas is the best means of arriving at truth and knowledge. As Holmes stated in Abrams, “The best test of truth is the power of the thought to get itself accepted in the competition of the market” (630). Holmes did not believe that the best ideas would inevitably triumph in the market, but that vigorous debate free from government interference offered the best means of arriving at whatever comes to be accepted as truth (Gitlow v. New York 673; Ingber 3; Smolla 7–8). If the marketplace of ideas does not always produce truth, it at least tends to favor better ideas and to advance the greatest social good. Somewhat different from Holmes’s more nuanced view,in contemporary usage the metaphor often invokes a romantic vision of a vibrant village market where the bustling economic exchange of information products results in well-informed citizens who have inspected, compared, and chosen the best goods available. The marketplace-of-ideas metaphor also serves to bolster the application of economic free-market theory to ideas about democratic communication and speech rights. For those who advocate this marketplace approach, democratic communication is the inevitable outcome of well-functioning markets. In a competitive market, communication resources are abundant, and markets allocate these resources optimally to those who are willing and able to pay for them. Under this approach, ownership is the best arbiter of speech rights, and democratic communication is operative as long as people have exclusive control over the communication resources they own (Fowler and Brenner 237; Pool, Technologies of Freedom 133). In other words, speech rights will accrue to those with the resources and means to exercise them. In addition, marketplace advocates view government regulation of communication as antidemocratic. Regulation corrupts the free market for ideas by facilitating the inefficient allocation of resources, the threat of government censorship, and the violation of property rights. This neoclassical economic reading of the metaphor has increasingly dominated policy discourse (Napoli , “Marketplace of Ideas” 166). 16 speech rights in america The marketplace approach values the efficient and widespread circulation of communication resources and throws a spotlight on the potential dangers of government regulation of speech. But its vision of democratic communication is incomplete. The approach is hypersensitive to the power of government to disrupt communication in private spaces, but virtually oblivious to the ways in which economic power, operating through markets , can corrupt democratic processes. Market power can be as damaging and coercive as government...