Justice Breyer at George Washington

Access to the Media Symposium at George Washington Law School

Dean Frederick M. Lawrence, George Washington University Law School:

Jerome Barron’s Access to the Press is a pathbreaking article, the hallmark of which is that after reading it you say “I knew that,” even though you’d never seen the matter that way before.

Robert Brauneis, George Washington University Law School, introduction:

Breyer’s concept of active liberty fits well with Barron’s insight that the First Amendment right of free speech is effective only if there is access to the ability to speak: They are united in practicality.

The Honorable Stephen G. Breyer:

[NB: I have, unfortunately, extracted much of the wit of Justice Breyer’s snappy and self-deprecating presentation.]

There is room for legal scholarship that addresses what is really going on in the world and then theorizes it. Academia has the ability and the mission to synthesize law (constitutional, statutory, etc.) and make it helpful to judges. “Law and…” can be useful, but traditional work of rationalizing a field is worthy of celebration.

(1) Barron’s article has a practical perspective: what is really going on? Takes the traditional/romantic/free market view of the First Amendment, what Learned Hand called the “democratic wager,” and asks what the payoff is. The traditional view says “don’t regulate speech to get better speech.” Barron introduced realism – freedom of the press only works if you own one. The First Amendment is about promoting speech, not just prohibiting government action.

There is a risk that we turn to those who reinforce our prejudices and close ourselves off to new information that may shape our views. That’s not just an individual problem. When media monopolies arise, it is hard for others to break through and communicate different information to the public. This can be true even with the internet.

(2) Barron forces us to think about what we mean by democracy. It’s not just freedom from government compulsion. How is a community of equals to behave? By participating, sharing sovereignty among themselves. De Tocqueville spoke of the “clamor” that was the first thing he noticed about America, and it was a clamor about politics. It is good for us to fight about the PATRIOT Act and the bankruptcy act, in classrooms and in chat rooms, in committee hearings and in police chief meetings. We can then return to the First Amendment and read it in the light of our commitment to a democracy of equal participants.

(3) Barron’s argument helps with cases. Turner was not too hard a case for Breyer. Congress told cable to carry over-the-air broadcasters to avoid having them shut out. Cable said “we don’t want to carry cooking programs.” Four Justices would uphold the law for economic/antitrust reasons. Four Justices rejected the antitrust reasons and said they were rubbish, thus the law was unconstitutional. Breyer thought the antitrust reasons were rubbish too, but that didn’t bar Congress from acting. His reasoning was like Barron’s: the law adds more voices without shutting lots out or disfavoring ideas. Once you’ve said that, you’ve rejected the traditional claim that you can’t use speech regulation to get more speech.

Campaign finance regulation is the same problem, only more difficult. If you believe in access, then money enables speech and donations should be protected. But what is the rationale for regulation? That $25 million from one source shouldn’t drown others out; others should have the ability to get their messages out too. Once you see First Amendment interests on both sides, the analysis is quite complicated – is this the right type of speech-promoting regulation?

(4) Barron’s article doesn’t have an ending, just a suggestion. It encourages us to think of other solutions, whether in statutes, practices, or cases. Breyer emphasizes that he will say nothing about the constitutionality of particular proposals; these are things that we might consider if we’re brainstorming. E.g., television time for presidential candidates – the French did a debate where two candidates just ask each other questions for two hours, with no moderator. If you want to know your candidates, maybe that’s better than having newspapers ask them questions; newspapers might not have the right questions.