Permanence and Change in the Global Village

The economy, the technology, and the regulatory infrastructure of communications are undergoing rapid change, with unpredictable but probably important social consequences. In his brief and readable book, Scrambling for Protection, Patrick Garry proposes that policy and law guiding the developments in new media industries should be governed by a reconstructed understanding of the press clause of the First Amendment of the United States Constitution. The First Amendment of the Bill of Rights addresses issues of freedom of religion, speech, press, assembly, and petition:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Garry argues that changes in media technology, as well as changes in the press and its public reception, render outmoded an existing patchwork of doctrines that have evolved through a historical process of case law and ad hoc regulation. Newspapers have increasingly become monopolistic creatures driven by large conglomerates remote from the local communities they serve. Journalism has changed from an organ of community information and opinion formation into a scandal-mongering, adversarial, investigative enterprise open to only a few professional journalists and a small band of experts. As a result of these changes in the press, the public, disenfranchised by journalism, is increasingly hostile and apathetic towards both the press and the political system. Meanwhile, information delivery systems have blurred the distinctions among the largest media industries—press, phone, broadcast television, radio, cable—and there is every indication that further blurring is on its way.

Garry proposes a way to solve the problems of the press and the public by guiding the coming changes in information technology from the perspective of the press clause of the First Amendment. But this requires, as well, a re-definition of the press clause. According to Garry, the most attractive feature of the new information technologies is that, with their vastly increased bandwidth and the new social practices they are tentatively exercising on the internet, media consumers have now become active—and interactive—media participants. If we could restore participation as a feature of journalism, argues Garry, we could restore a sense of community, giving American media and government back to the people. How would such a change be brought about in a consistent way? Here is where Garry attempts his reconstruction of the press clause, arguing that the best features of the new media are precisely consonant with what the authors of the Bill of Rights meant to protect with the press clause.

Garry argues that the Bill of Rights was not meant to protect the press, as such, and certainly not journalism as it has evolved over the past two hundred years, but rather that it was meant to protect certain practices and principles that were embodied in the American press of the late 18th century. Garry distinguishes between freedom of speech and freedom of the press by arguing that “while the speech clause protects individuals in their act of speaking, the press clause protects the dissemination of those views and assures an open forum for communication in society and for democratic political dialogue” (115). The framers meant to protect three primary values: (1) the attainment of truth through the open clash of antagonistic views; (2) the promotion of democratic government by rendering the government more rational in its decision making and the public more energetic in the formation of political coalitions; (3) the promotion of democratic society through the development of social bonds that help to “create a common social world” (113). These values, writes Garry, and not the press itself, were the objects of protection.

What follows from Garry’s redefinition of the press clause is that in developing law and policy for the changing media infrastructure, the courts and agencies should be guided not by any attempt to prefer the press as it now exists, and not by outmoded attempts to...