Barron tribute, panel 2

Panel II: Access and First Amendment Theory

Jeffrey Rosen, George Washington University Law School

Barron has been honored in theory, but less successful in practice. The judicial enthusiasm for access rights has waned over the past few decades. Why?

Frederick Schauer, Harvard University John F. Kennedy School of Government

Barron’s vision doesn’t represent current First Amendment doctrine. Schauer’s question here: Whether, how and when we should understand the 1A/free speech in light of Supreme Court cases, or legal doctrine more generally.

He’s skeptical that we should form our views about 1A/free speech based on court cases. Holmes, Brandeis, Warren, Harlan, Rehnquist, Frankfurter, Scalia, White etc. have of course been very important to our understanding of free speech – but note that not all of these would win any ACLU awards.

His concern is that we have exported legitimate institutional aspects of 1A doctrine to broader concepts of freedom of speech, to the latter’s detriment. Standing, mootness, justiciability, linedrawing problems etc. are filters that exclude things that broad theoretical and policy considerations of free speech would tell us are relevant.

Examples: state action doctrine. John Stuart Mill spent virtually as much time and space on “social intolerance” as he did on government actions. Private universities, schools, corporations have important consequences for free speech, and the concept of free speech need not relate inherently to the government. So too with the idea of positive rights. Rejection of positive rights of access is but a subset of a constitutional understanding in the US that is skeptical of positive rights, unlike (say) South Africa. Even cases about access to government, e.g. Pell v. Procunier, should be understood as of a piece with DeShaney and other broader constitutional canons about avoiding positive rights. There is no constitutional right to resources, even education, that make it easier for people to exercise their other constitutional rights.

Finally, the extent to which the 1A provides an exception for generally applicable laws. Branzburg v. Hayes, Clark v. CCNV, etc. are skeptical of the proposition that constitutional doctrine should grant 1A-based exemptions from laws of general application. (Thought: this analogy suggests that Congress could rearrange the background somewhat in the service of access rights, producing a situation more like the establishment/free exercise tension, which courts have allowed legislatures to resolve more readily than they’ve allowed the legislature to explicitly calibrate speech v. speech. Though the religious exemption cases aren’t exactly models of clarity, they may be better than what we’ve got now in speech v. speech.)

Questions from the broader free speech perspective: Should universities have institutional review boards for human subject research, and how aggressive should they be? Should the National Endowment for the Arts have a bigger budget? Should the US adopt a journalist’s privilege for investigations? Should newspapers publish letters from the subjects of stories complaining about the stories? Should political primaries be open or closed? These are questions about how much people should speak, who should speak, and what the free expression environment in the US is like.

Existing constitutional doctrine doesn’t help much; we shouldn’t let the case law overly influence us. When the question is whether a university should invite a controversial speaker to its campus, the debate is often converted to “this isn’t not censorship, the university gets to pick who can speak.” Shouldn’t the exercise of the university’s power to decide be informed by what we think free speech values mean?

The marketplace of ideas and the success of the best ideas in this market is a testable empirical proposition, not a philosophical one. Suppose it’s basically right. Mill says truth gets better tested by falsity. How much of the Millian value in challenging accepted ideas is served by prohibiting government censorship of falsity? Schauer’s tentative answer: some but not much. An anti-censorship rule is not sufficient. If we wanted maximum exposure of falsity, anti-censorship would be part of the array of techniques, but not primary. We can’t assume we get most of what we want for our background values merely by banning censorship.

Much the same can be said about the “checking value” of free speech, as developed by Blasi and others. If our concern is controlling abuse, avoiding government self-dealing, etc., we’d want a ban on censoring speech critical of government, but we’d also want to think in free speech and, especially, free press terms about whether government agencies should have inspectors general, internal affairs departments, devil’s advocates, mandatory press conferences, free-form town meetings for presidential candidates, more robust freedom of information laws, etc. To think of the checking value as essentially a reason for anti-censorship is to ignore the various ways in which that value might be served.

Most of these decisions will be made against a background of Type 1/Type 2 errors. When we check government abuse we also check government success. Designing 1A policy is a question of balancing these errors.

Rosen: There is another 1A tradition aside from marketplace – individual self-expression and autonomy. How does this affect your view?

Schauer: If he believed in this foundation for the 1A (which he does not), it would be another reason to endorse his larger view – other institutions than the state can affect autonomy. Institutions can provide forums for expression, education, etc.

Jack M. Balkin, Yale Law School

Recent story: political organizations use SMS/text messaging to get the word out. NARAL wanted to send messages to subscribers through Verizon; Verizon said no, that was controversial/unsavory. Verizon quickly backed down and said NARAL was welcome to send messages – but Verizon reiterated its right to block messages it thought were inappropriate.

Traditionally, plain vanilla voice services are common carriers and can’t discriminate. Cellphone text messaging isn’t treated like that even though it uses much of the same equipment. Much of today’s key infrastructure is free from common carrier obligations. Balkin reads Barron’s article as being essentially about private power. The major problem of private power is the power of conduits. Today, this problem is centered around the internet: Google, Facebook, Blogger, Digg, etc., as well as traditional mass media conduits that tightly connect the delivery of information from its production. The conduits of Barron’s day tightly controlled editorial function, but now conduits deliver messages from others, create applications allowing others to create content, and deliver their own content. These conduits thrive and depend on everyone’s access. User-generated content is a central feature of Web 2.0, as when you write a book review on Amazon, helping out Amazon. The irony is that the dead-tree NYT is superficially similar to nytimes.com, but the latter has blogs and lots of UGC.

The normative prescription in Barron’s piece is so modest, despite all the attention it got: not everyone gets to speak, but if you are a bona fide representative of a specific community, you can get a right of reply – if you convince a judge. If you think about how much actual speech that would allow, it’s tiny compared to today’s world. The proposal took for granted the existing media ecology and layered a tiny judicial remedy on top. What if we opened the question of media ecology design? Media ecology comes first, the 1A only layers on top.

We could say the 1A is underenforced, or talk about 1A values, or information/innovation policy. Free speech can start to merge with these other concerns. If we’re really interested in media access, think about requiring broadband carriers to open up the last mile to ISPs, increasing competition and diversifying applications. Some would prohibit users from uploading video; others wouldn’t. Or: network neutrality. We care about that because of NARAL, and because we want filmmakers to be able to upload video and compete with the big guys through the power of linking.

Barron is skeptical of NYT v. Sullivan, which does nothing to promote access to the media even if it helps the NYT. Now, it’s flipped: § 230 of the CDA is the most important protection for free speech on the internet. The CDA excludes IP, which is sad, but the DMCA is better than nothing. You wouldn’t have a website, and nytimes.com wouldn’t have UGC, were it not for § 230.

Barron owed much to Meiklejohn, and was limited by him, because M’s model was so deeply tied to the idea that not everyone can speak and that we therefore need a moderator. It’s elitist and ignores culture in favor of high politics. And it takes existing business models for granted. We’re all children of Meiklejohn, so this isn’t a criticism of Barron in himself. But with today’s freedom to imagine, think of possible proposals for 1967: convert some bandwidth to separate control of the bandwidth to control of the content. Get rid of the FCC policy prohibiting low-power FM/AM, allowing churches and civic organizations to reach small towns. Pour government money into developing spread-spectrum technologies and radios/TVs that could receive such signals.

Access could be understood in a Meiklejohnian way or in a culturally populist way; Balkin chooses the latter. Everybody should be able to speak and help control what makes us people, which is our culture.

Rosen: What about judicial doctrine? If the FCC refuses net neutrality, should judges impose it? What if they won’t?

Balkin: This isn’t about positive liberty. Judges aren’t good at tech policy. There are things they can do at the margins, but their job is to interpret statutes & regulations. Brand X was a mistake, for example, but judges can’t design internet backbones or mandate municipal Wi-Fi.

Vincent A. Blasi, Columbia Law School/University of Virginia School of Law

He’ll talk in instrumentalist terms, but wants to underline the importance of the question of whether the 1A protects something non-instrumentalist. He set forth various possible benefits of access suggested in Barron’s article – I liked his emphasis on Barron’s idea that there is a need for public opinion to be mobile, to overcome inertia.

Instrumentalist rationales are hostage to their empirical basis; do Barron’s arguments still apply? Gatekeepers have declined in importance in the ensuing decades, even if mass media play a legitimating role. But access could still be important, for example in talk radio. If talk radio were intellectually balanced, the last two elections would have come out differently. But if the left doesn’t have a comparable influence, whose fault is that? There are gatekeepers, and access policies could make a big difference. On the other side of the ideological divide, many conservatives think universities aren’t open enough to things like unapologetic nationalism, the importance of tradition, intelligent design, etc. Maybe opening them up would create a richer experience for students.

Barron’s worry about blandness doesn’t ring true today, where the problems seem to be antagonism and snapping partisanship. There are economic incentives for media to encourage divisive speech too. New, radical ideas have gained a lot of traction without access rights, from intelligent design to deconstruction in the academy to revisionist Vietnam history. So this also makes him skeptical of the need to avoid inertia, and the relationship between access rights in intertia – we’ve seen huge changes in public views of feminism, environmentalism, free-market economics, evangelical religion, etc.

What we might want to promote: a character ideal: someone capable of changing her mind, who doesn’t get all her news from one subculture. Arguments about character figure heavily in the classic defenses and discussions of free speech. This might be the strongest way to justify nonjudicial measures to promote access and subculture-crossing.

Rosen: Without gatekeepers, are remedies hopeless? How do we get someone to click on a news link instead of another episode of The Simpsons? Maybe we need to subsidize gatekeepers like national newspapers rather than worrying about access to them.

Blasi: He is ambivalent about remedies. He’s generally enthusiastic about judicial review. But these are things courts can’t do. Again, he wants to establish norms about how to run a university, or a talk show.

More generally, the question of the role of authority in a world where anyone can put out an opinion is an extremely difficult question. Without authority figures, it’s hard to change public opinion – the change of opinion about the Vietnam War, for example, was significantly propelled by Walter Cronkite. Or the drama of Joseph Welch confronting McCarthy at the hearings – imagine how that moment would have been dissipated on the talk shows the next day had the hearings occurred this year.

Schauer: Balkin seems to define the First Amendment, and then information/innovation/knowledge policy separately. Should they be unrooted from the history of free press/speech/thinking as he seems to present them? We could do worse than starting our thinking with Mill, Meiklejohn, and others. Participation in the public sphere can draw on traditions associated now with the First Amendment. This is more than terminology: the cultural significance of the First Amendment will be deployed, and the question is how its rhetorical power will be brought to bear.

Balkin’s skepticism about judges was not matched by a skepticism about lawyers doing the same things. Mill, Meiklejohn, Popper, etc. were not lawyers and maybe innovation policy shouldn’t be dominated by lawyers.

Blasi pointed out that newpapers were really, really worried before they won Tornillo, and newspaper lawyers encouraged them to invite outside views in, leading them to start running op-eds, to show their good faith and openness. Barron’s criticism of newspapers for their insularity thus had a nonjudicial effect of promoting a new kind of access. Many journalists thought that Tornillo shouldn’t have had to rely on a statutory right of reply, and should have been accorded it by the Herald itself.

Magarian: Public discourse failed us in the Iraq world, despite new forms of access. The very cultural gatekeepers – Washington Post, NYT – were strongly presenting the administration’s side at a time when debate might have made a difference. How should we think about that? Is public discourse hopeless when the government has such a strong message? If so, what’s public discourse for?

Blasi: Public opinion about the wisdom of the war changed rapidly. (I don’t think this is responsive to Magarian’s argument. It’s not how fast error was recognized, it was that error was not prevented despite the length of the lead-up to the war and the availability of contrary information.) The problem is larger than opportunity to persuade. Persuasion needs to change will, which hasn’t occurred yet with Iraq.

Balkin: The blogosphere didn’t really get going until this was well underway. The problem was a government that fetishized secrecy and manipulated the traditional media; because of mass media concentration, you only had to coopt a small number of people before the conduits of information dried up. This interacts with changes in how news is gathered; in some ways the media were much weaker in 2001 than in 1967 because of concentration and other forces.

Political operatives studied how to coopt and manipulate the press much more carefully in recent decades, honing manipulation to a degree unknown to the Johnson administration. Technologies create opportunities, but some people are slow out of the starting gate. The most powerful forces in society are the most likely to take advantage of change – that’s why the first out of the gate in the internet space were the IP maximalists. (What’s being described by Balkin, I think, is a variant of the problems created by tournaments: in a national, highly specialized economy, you get really good political operatives at the top of the heap, and the really good news reporters may not have the resources, power, or incentive to counteract them.)

Blasi: Not just open-mindedness, but independent-mindedness is a key First Amendment ideal. People who might have been opinion-shapers in the lead-up to the war disappointed us by not asking harder questions. That’s a problem in any age.

Schauer: Does independence correlate with correctness? He’s not sure.