A. Historical defense of freedom of expression

The Levellers were the first mass-based, pro-democracy movement in English history. They were a group of seventeenth century English people who favored a written constitution with limits on governmental power, broad religious toleration, and Parliament elected by substantially broadened male suffrage from districts of roughly equal population. In one of their many pamphlets, the Levellers said censorship was an instrument of tyranny, for people “kept ignorant” were “fitted only to serve the unjust ends of Tyrants and Oppressers.”²⁵

Freedom of the press was necessary to preserve “any nation from the worst … bondage.” As a result, both for the government and the people, “it will be good, if not absolutely necessary … to hear all voices and judgments, which they can never do, but by giving freedom to the Press.” Scandalous pamphlets about the government could be answered by counterspeech.²⁶ Though the Levellers were suppressed, similar and more elaborate ideas about freedom of expression continued to emerge. Cato's Letters are a prime example.

The Letters were a series of essays on civil and religious liberty first printed in England in the eighteenth century. The Letters, which were widely reprinted in America before and after the Revolution, also emphasized the connection between free speech and press and representative government. Since those who administered government were “but … trustees” doing the business of the people, it was in the interest of the people to see whether “public Matters” were “well or ill transacted.” For this, free speech was essential.²⁷

In its “Address to the Inhabitants of Quebec” during the American Revolution, the Continental Congress expressed similar sentiments.

Critics of the Sedition Act of 1798 produced a strong defense of freedom of expression as central to democracy. As we have seen, the act was written and deployed to punish “false” opinions about President John Adams and the Federalist-controlled Congress. But it did not punish “false” statements about Republican Vice President Thomas Jefferson. Republican critics of the Sedition Act emphasized the relation of free speech and press to elective government. People had no means of examining the conduct of their elected officials except through the press and free speech. The “unrestrained investigation” by the press of the “conduct of the government” was essential; it was “the heart and soul of a free government.” Restrictions on press freedom of the sort imposed by the Sedition Act would “destroy the elective principle” because the chilling effect of the Act would suppress all criticism.²⁸

For Republicans, one of the vices of the Sedition Act was that it silenced only one point of view in the political debate. Praise of President Adams was allowed. Criticism was silenced.

Strong defenses of freedom of expression as crucial to democracy also emerged, as we have seen, in the 1830s during controversies over slavery and anti-slavery expression. In 1836, Whig Senator John Davis of Massachusetts described the function of the press. Davis spoke in opposition to a bill sponsored by Senator John C. Calhoun that would have required the Post Office to censor publications touching on the subject of slavery when mailed to a slave state that forbade the expression. Davis declared:

Davis said that the reasons supporting this incendiary publication bill were the same ones always given for abridging the liberty of the press, that is, because the press

For this reason the Constitution prohibited abridging the liberty of the press “come what might.”³¹

The Boston Daily Advocate discussed the function of free speech in an 1838 editorial condemning the killing of Elijah Lovejoy by an anti-abolition mob:

While freedom of discussion might not produce truth, “it is reasonable,” the editorial continued, “to suppose that a nearer approach to it will be made” than under a system of suppression.³³

In popular understanding, as the controversy over anti-slavery speech shows, subjects protected by free speech included harsh criticism of powerful private interests—in this case the “slave power”—that shaped public policy.

There were also trans-Atlantic influences on the development of American free speech doctrine. In 1859, the English philosopher John Stuart Mill emphasized the need to protect minority opinion, because without considering a full range of views we are unlikely to come to wise decisions. Wise decisions, he suggested, require hearing all sides.³⁴

Though Mill wrote well after the ratification of the First Amendment in 1791, his and similar ideas are part of the background for the Fourteenth Amendment. (The First Amendment limited only the federal government. The Fourteenth Amendment extended the protections for freedom of expression to the states, a fact the Supreme Court belatedly “assume[d]” in the 1925 case Gitlow v. New York.)

These ideas about the relation of free speech to democratic government, announced long ago, were echoed in twentieth century Supreme Court opinions. As noted above, the Supreme Court has emphasized the importance of free speech and diverse perspectives for democratic decision-making.

As both the historic tradition and more modern expressions of it show, government suppression is problematic because it interferes with the democratic function of freedom of expression. In defending free speech and press as essential to democratic choice, the Court has assumed that freedom of expression provides citizens with a better basis for informed choice than a regime of suppression or of authoritative selection and that informed choice requires access to different perspectives and alternatives. Thus, suppression of minority points of view or enforcement of an orthodoxy is antidemocratic. As the twentieth century philosopher Friedrich Hayek noted, one should not confuse what the law is and what the law ought to be:

To be sure, the historic emphasis on the need for broad freedom of expression never went unchallenged. In England, Parliament suppressed the Levellers; in the United States, as we have seen, attempts at suppression ranged from the Sedition Act to the harassment and jailing of abolitionists. Additional examples of suppression are not difficult to find: One of Lincoln's generals jailed a Northern Democratic politician for making an antiwar speech. After the end of Reconstruction in the South, both democracy and free speech were effectively suppressed for a substantial part of the population. When, in the 1960s, blacks in the deep South began demanding the right to vote, civil rights activists were shot, bombed, burned out of their homes and churches, and beaten. They were also arrested for peaceful protests that should have been protected by the guarantees of the First and Fourteenth Amendments.³⁶

Other twentieth century examples of suppression include the jailing of Eugene Debs for an antiwar speech during World War I³⁷ and the barring of Julian Bond from the Georgia Legislature for endorsing an antiwar circular during the Vietnam War—an effort that the Supreme Court held violated the First and Fourteenth Amendments.³⁸

Of course, commitment to democracy has not been uniform throughout American history either. From early times, some Americans worried about economic “levelling” and responded to the worry by favoring property qualifications to limit the right to vote. During Reconstruction (1865–77), Ku Klux Klan terrorism destroyed the Republican Party in the South as an effective force and contracted the electorate by preventing blacks from voting. Later, similar tactics were aimed at Populists. After Reconstruction, certain influential Northern intellectuals accepted Southern disfranchisement of blacks, rejected universal male suffrage, and considered restricting the vote for some white Northern men as well. During the Great Depression, the Republican chair of the Board of Elections in Lewiston, Maine, attempted to disfranchise relief recipients as ineligible paupers, a move that would have disfranchised one thousand people in that town alone.³⁹

When blacks sought to register and vote in the deep South in the 1960s, they were attacked by Klan terrorists and blocked by elected officials. While actual practice often has been inconsistent in American history, democracy and a functional view of free press and free speech have been vibrant American ideals, now accepted by most Americans.

B. The environment of freedom of expression: 1830–1868

To be more nearly complete, free speech history should examine the role of the larger environment in nurturing or hindering free speech and press. I will now look at the free speech environment, particularly in the years 1830–1868.⁴⁰

These were the years leading up to the Civil War, Reconstruction, and the ratification of the Fourteenth Amendment. My focus will be on the nature of the mass communication environment and how it interacted with the democratic goals of a system of freedom of expression.

The past is not a free speech golden age, as the killing of Elijah Lovejoy and the suppression of anti-slavery speech in the pre–Civil War South show. Adherence to the ideal of freedom of expression has often had its shortcomings, and no doubt always will. Yet, the free speech environment of the past embodied some positive values that are being lost in the modern world.

The era I have studied most closely runs from the 1830s through the Civil War, which ended in 1865, three years before the adoption of the Fourteenth Amendment. During that time the mass media consisted mainly of newspapers, books, pamphlets, and public meetings. There were numerous periodicals, mostly separately owned. Publishing for a mass market was decentralized, and the press carried on a lively dialogue on political issues and candidates.

William Seward, a Whig and later Republican politician, governor of New York, United States Senator, and Lincoln's Secretary of State, marveled at the development of the press. In his 1853 Notes on New York, Seward commented on the technological innovations of new labor-saving machinery and stereotype foundries that had made publishing so much more efficient.⁴¹

Books and newspapers, fiction and nonfiction, proliferated. The political press was, he said, “divided between contending parties,” and subdivided further based on the “tempers and the tastes, the passions and the prejudices of the community.” It conducted “political warfare” with “energy, zeal, and … unsparing severity.”⁴² Still, Seward had a sanguine view of the press:

Another commentator on the press, Frederick Grimke, was born in Charleston, South Carolina and trained in the law. He was the brother of Sarah and Angelina Grimke, who became famous abolitionists and advocates of women's rights. After practicing law in South Carolina, Frederick Grimke migrated to Ohio where he served first as a trial judge and later on the Ohio Supreme Court. He wrote about the press in the 1856 edition of his book, Considerations upon the Nature and Tendency of Free Institutions. For Grimke, the press was “the organ of public opinion,” and it distributed knowledge and a common sympathy among the great mass of the population.⁴⁴

“[F]reedom of the press was to knowledge what the abolition of primogeniture was to property: the one diffuses knowledge as the other diffuses property.”⁴⁵ “If the press were extinguished, the great principle on which representative government hinges, the responsibility of public agents to the people, would be lost… .”⁴⁶

Grimke saw the crucial democratic function of the press in terms of political power. The power of opinions depended on their “intrinsic value” and on “the publicity which they acquire.”⁴⁷

The principal political function performed by the press was to “equalize power throughout all parts of the community.”⁴⁸ The press was “an extension or amplification of the principles of representation. It reflects the opinions of all classes as completely as do the deputies of the people.”⁴⁹

Grimke had faith in the ability of the great mass of mankind to acquire knowledge “when it is communicated in detail.”⁵⁰

Indeed, as Grimke saw it, much improvement in society had come from “the sagacious and inquisitive spirit of very obscure men in the inferior walks of life.”⁵¹ “The freedom of religion, of suffrage, and of the press … was brought about by the very reasonable complaints of men who occupied an inferior position in society.”⁵² In the United States, the press was “emphatically the organ of popular opinion.” But “the power of the press is broken up into small fragments… .”⁵³

Grimke had a realistic view of the function of government censorship in human history. It was “applied to restrain one class of publications only. No one ever heard in a monarchical or aristocratical government of any attempt to forbid the circulation of writings which were calculated to increase the influence of the prince and nobility. The utmost indulgence is extended to them….” Still, the licentiousness of the press was a problem, but not one to be solved by government regulation. Instead, abuse of press power was to be controlled by the structure of the press:

Thomas M. Cooley, a Chief Justice of the Michigan Supreme Court, wrote a famous treatise on constitutional law. His appreciation for the importance of a free press in a democracy was as keen as Grimke's. In his 1868 book, A Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the States, he ranked the newspaper among the inventions of modern times that had powerfully influenced and advanced civilization. Newspapers brought the debates of leading legislative bodies, the events of war, the triumphs of peace, and many other subjects to “the knowledge of every reading person.”⁵⁵

The press made the actions and words of public men “public property.”⁵⁶

Cooley noted the importance of the press in reporting matters of public and commercial concern. “The public demand and expect accounts of every important meeting, of every important trial, and of all the events which have a bearing upon trade … or upon political affairs.”⁵⁷ The power of the press was great, but its power was dispersed. “Every party has its newspaper organs; every shade of opinion on political, religious, literary, moral [and other] questions has its representative; every locality has its press to advocate its claims.”⁵⁸ It was “one of the chief means for the education of the people” and on politics it was their “chief educator.”⁵⁹ As he praised the press and remarked on its power and importance, Cooley also noted, paradoxically, that the law was not strongly protective.⁶⁰

The decentralized nature of the press helped to defeat a censorship proposal made in the mid–1830s. As noted in subsection III A, in the 1830s, Congress debated a bill to censor abolitionist publications aimed at the South. Senator John C. Calhoun had proposed a bill to prohibit postmasters from mailing any publication touching on the subject of slavery to a state whose laws prohibited the expression. The bill would have required postmasters to examine each newspaper, magazine, and pamphlet and compare its contents to the laws of the Southern state to which it was directed.⁶¹

Senator John Milton Niles of Connecticut noted that more than fifty periodicals were issued from New York City alone. Many were published daily and contained items taken from other papers. “[E]ach paper must be carefully examined in its entire contents, to see if it contains anything touching the subject of slavery. This would be utterly impracticable.”⁶²

Seward, Grimke, and Cooley shared some common assumptions. For each, the press was crucial to the functioning of democracy. Each emphasized the connection between freedom of expression and representative government. “The people” needed detailed information about public questions in order to perform their democratic function, and these writers thought that the press supplied it. Crucially, the press as a whole provided a wide range of points of view, and ownership was decentralized and dispersed among various political and other factions. A “checking function” is essential to a free press, but the checking function envisioned by these thinkers went beyond merely checking abuses of government power. They also saw that the dispersed and decentralized nature of the press would check abuses of press power, a power which they recognized to be potentially great.

Past supporters of broad protection for free speech and press emphasized or assumed a press environment that fostered democratic ideals. The environment included dispersed ownership, politicians and political parties that had substantial access to the press, and a press that purveyed diverse points of view.

I have spent a good amount of time in the past twenty years or so reading old newspapers from the 1830s through the Civil War. In contrast to our times, there was a great profusion of newspapers, often quite a number in each major city. Ownership was dispersed. Many papers were overtly partisan. Partisanship had advantages as well as drawbacks for democracy. Major parties and their candidates had substantial direct access to the mass media because newspapers typically and strongly supported one party or the other.

Newspapers presented very detailed information on major public controversies, often extensively reprinting debates in Congress. Most reprinted stories and editorials from other papers, sometimes for purposes of criticism. A few gave both sides considerable space. Abolitionist papers often reprinted pro-slavery arguments, in part because their editors were convinced that these arguments would aid the anti-slavery cause. While partisan newspapers generally did not reprint campaign speeches from leaders of the opposing party, they did give detailed accounts of the speeches of members of their own parties. In exceptional cases, such as the Lincoln-Douglas debates, speeches of both sides were presented and reported with reasonable accuracy.⁶³

Consider the following example: in the summer of 1866, a major issue was whether the Fourteenth Amendment should be ratified by the states. The amendment contained new limits on the states in order to protect civil liberties, and it did not allow Southern states to count disfranchised black males for purposes of representation in Congress or the electoral college. Page one of the Cincinnati Commercial for August 17, 1866, reported a speech by Congressman John A. Bingham of Ohio under the headline, “The Constitutional Amendment—Discussed by Its Author.” The report covered virtually the entire front page.

Though newspapers typically had political allegiances, the dispersion of ownership produced diversity, even among papers affiliated with the same political party. In the mid–1830s, the Democratic New York Post strongly condemned efforts by government officials, legislators, or mobs to silence abolitionists, while the Democratic Washington Globe chortled gleefully at efforts to shut them up. Groups that at first had difficulty getting a hearing in the partisan press, such as the abolitionists, founded their own newspapers.

The major shortcoming of these nineteenth century papers was lack of balance within each paper, while the major virtue was that they provided an avenue through which politicians could directly and fully address their constituents. The newspapers also afforded a forum where citizens could express their views.

The press was one way to reach a mass audience. Another was public meetings. Speakers needed the ability to draw a crowd, but costs were minimal: the location could be a tree stump or a simple platform, and the largest cost might be advertisements for the meeting. With few other sources of entertainment, a speech on politics or the law could draw a crowd. Books and pamphlets offered another way to reach a large audience. Books such as the anti-slavery novel Uncle Tom's Cabin (1851) and Helper's The Impending Crisis of the South: How to Meet It (1857) became best sellers. Both helped to focus national attention on slavery in the South. Political leaders could and did get their messages out to the party faithful and the larger public through the mass media of newspapers, speeches, books, and pamphlets.

A. Characteristics of today's mass media

In the United States today, the mass media is, of course, far different from that of the nineteenth century. Although the differences are numerous, I will discuss only the four most striking dissimilarities. First, there is so much more media today: movies, videos, DVDs, a dizzying array of television channels, radio, the Internet, etc. Few of us would be willing to return to the monochromatic media of the nineteenth century, whatever its virtues. Second, the mass media today is dominated by television. Americans spend a huge amount of time watching television. In 1999, the television set was in use for 7 hours and 24 minutes per day in the average household.⁶⁷

Women from age twenty-five to fifty-five spent over 30 hours per week viewing television; men in the same age group spent over 27 hours per week.⁶⁸ For women older than fifty-five the figure jumped to more than 41 hours per week, and for men older than fifty-five, to more than 36 hours per week.⁶⁹ A significant number of Americans get their political news only from television and even more get most of their news there.⁷⁰ Radio is the second major source of information.

Third, below the apparent diversity of the modern mass media is an ever growing corporate centralization. The media world of the first decade of the twenty-first century is consolidated and centralized to a degree unimaginable in the nineteenth century. Most Americans get the vast majority of their political information from a few mass media outlets owned by a few major corporations.⁷¹

It is true, of course, that information is now much more widely disseminated than in the nineteenth century, and with television and radio, it is available even to the illiterate. Depending on the quality of the information, this could be positive or negative.

Concentrated media control can be used for deleterious purposes and is prone to manipulation. By his control of most of Yugoslavia's television, then-President Slobodan Milosevic was able to control public opinion by pervasive propaganda. By his control of a “private” television empire, Silvio Berlusconi, the Prime Minister of Italy, can be assured of favorable news coverage on at least half of Italy's television stations.⁷²

His influence over Italian public television has made his control nearly universal. Concentrated media power can be abused, and this is true even when the power is “private.”

Consider the media world of 1999, as described by columnist Molly Ivins:

Since 1999 consolidation has proceeded apace. Ivins' description ignored university presses, but it is an accurate picture of the major mass media as of the time she wrote.

The Federal Communications Commission, the courts, and Congress have all done their part in recent years to contribute to the consolidated corporate media world and to undermine guaranteed access for diverse points of view, for example by removing barriers to media consolidation, repealing the Fairness Doctrine (which required some air time for opposing points of view), and imposing legal barriers on legislative efforts to protect or promote diversity. (As of this writing it seems as though Congress, for the first time in recent years, may overrule the FCC's decision to allow greater consolidation of media holdings.) Government actions removing barriers to consolidation, together with other factors, have produced both a much more consolidated electronic media and one far freer from requirements for viewpoint diversity.

Fourth, compared to the press of the nineteenth century, commercial television devotes a tiny amount of news time to serious discussion of candidates' views and policy issues. As one observer noted, “two elections ago [in 1998], the three networks together gave you about 25 minutes a night of election news, or about eight minutes apiece. This [2000] election they gave you about 12 minutes, or four minutes apiece per night.”⁷⁴

But even this reduced amount was news of a special type. The Annenberg Public Policy Center found that only an average of 64 seconds per night was quality, “candidate-centered” time during which the candidates themselves had an opportunity to discuss their views on issues. The rest was “heavily filtered reporting about the suspense of who might win the horse race….”⁷⁵ Of course, C-SPAN and some other cable networks provide more candidate time, but even this time can be degraded by journalists. In a December 2003 televised “debate” among Democratic candidates in New Hampshire, an event moderated by ABC's Ted Koppel, during the first forty-five minutes the journalist did not ask a single question devoted to public policy issues. All questions focused on Al Gore's endorsement of a candidate, on polls, candidate fundraising, and so forth.

Journalists typically frame campaigns as strategic games of people struggling for power. Policy issues and debates become noteworthy not in themselves but at most as moves in a strategic game.⁷⁶

Of course, the “horse race” is a part, but only part, of what is going on.

In 1968, the average presidential campaign sound bite on network news was 43 seconds. In the 1996 election, it dropped to 8.2 seconds.⁷⁷

Journalists spoke six minutes for every minute George Bush or Al Gore spoke on the evening news in the 2000 campaign.⁷⁸ An Annenberg study found that only one in four campaign stories aired in the month before the election was issue-oriented; the rest focused on the bumps and dips of polls and campaign strategy.⁷⁹ Journalists talking about the election accounted for 74 percent of the news airtime. Candidates actually shown speaking accounted for 11 percent. Sixteen of nineteen top-rated TV stations in the top eleven markets broadcast, on average, only 39 seconds a night about political campaigns, while top stations in Philadelphia and Tampa averaged 6 seconds a night.⁸⁰

However bad the situation is for candidates for president, coverage of other races is worse. There is very little day-to-day coverage, for example, of state politics and government. News reporting on state legislatures and almost all races for governor has virtually disappeared from much television news. The 2003 California recall, featuring a movie star as candidate for governor, was a rare exception. In the 1998 California gubernatorial race, local TV news on the subject was less than one third of one percent of possible news time—one tenth of what it had been in 1974.⁸¹

There are additional serious problems with today's mass media. First, broadcast and cable news coverage is often devoted to trivial issues. Trivial issues have always been aired, but based on my unscientific survey, the percentage of trivia in political discussion has grown dramatically compared to newspapers of the period from 1830 through the end of the Civil War. George W. Bush's arrest for drunk driving twenty-five years before the 2000 election got more election coverage than all foreign policy issues combined.⁸²

The problem has existed for some time. Examples of quite trivial news coverage include Gerald Ford's statement in a 1976 presidential debate suggesting that Poland was not a puppet state of the Soviet Union; Jimmy Carter's 1976 “lust in my heart” Playboy interview (in which he confessed to feelings for women other than his wife); and, of course, obsessive reporting of politicians' sexual adventures.⁸³

After the first debate in the 2000 Presidential election, one network took footage from the debate and clipped out everything except Gore sighing or showing expressions of dismay. One after another, photos of Gore's expressions flashed across the screen. All context had been removed. The viewer did not hear or see the Bush statements that produced these reactions; the viewer did not hear or see what Gore had said, if anything, in response to statements that elicited these reactions. Then a group of journalists gravely discussed Gore's facial expressions in the debate. The episode is a metaphor for the current state of American television journalism, a journalism that drains substance from the discussion of politics and substitutes predictions about the horse race and critiques of style.

For the press at large, more than 50 percent of candidate gaffes got news coverage extended over at least two days compared with 15 percent of policy stories. Network news gave extended coverage to more than 65 percent of gaffes compared with 15 percent of policy issues.⁸⁴

News audiences took more notice of stories about gaffes and recalled them better,⁸⁵ but at least part of this effect can be attributed to the greater press attention that the gaffes received.

Gaffes (or alleged gaffes) and the evidence they supposedly provided that Gore was untrustworthy or Bush was ignorant and dumb were of major importance in the 2000 election.⁸⁶

Examples include Bush's “failure” of a pop quiz asking him to name leaders in various third world countries; Gore's statement that a schoolgirl “has” to stand for want of a desk and chair in her crowded science class when, in fact, she only “had” to stand for a time; and Gore's mistaken assertion that he had accompanied the Director of the Federal Emergency Management Agency to Texas in connection with forest fires. In fact, Gore had often accompanied the Director to scenes of disasters, but in this case he had been briefed by the Director's deputy.⁸⁷

Obsessive and often inaccurate press accounts become received wisdom too rarely corrected by the press. The checking function that Grimke saw in the press of the nineteenth century seems not to be functioning well in the twenty-first.⁸⁸

As the number of outlets run by diverse owners shrinks, viewpoint diversity and critiques of press orthodoxies in the mass media also seem to shrink.

The second serious problem with today's mass media is that, because most candidates cannot hope to reach viewers and listeners through free news coverage, candidates must spend more and more money to buy television or radio time. As serious news coverage has declined, revenue spent on political advertising has increased. In 2000, television political ads produced an estimated $1 billion in revenue for broadcasters.⁸⁹

Revenue from political spots was up 40 percent from 1996 and, adjusted for inflation, amounted to a five-fold increase from the level of spending in 1980. Though they run only during a part of the year, political commercials were the third largest source of advertising revenue for broadcasters in 2000. Campaign coverage has decreased as ad revenue has increased.⁹⁰ (In the nineteenth century, in contrast, heavily partisan newspapers typically gave extensive, free coverage to the candidates of the party they supported.)

Critics charge that there is something amiss when stations, having received their broadcast licenses for free from government, turn around and sell access to their audiences to candidates for political office. Cable is a special case, but the dominance of existing cable companies was substantially advanced by monopolies granted to them by local governments. At any rate, the present system makes it ever more expensive for candidates to run for office, and it tends to undermine democracy, both by limiting who can run and the sort of appeal candidates can make, and by actually or apparently undermining the relationship of trust between public officials and voters. In three separate, recent polls, over three-fourths of the respondents agreed with the statement that “Congress is largely owned by the special interest groups,” which “have too much influence,” and “our present system of government is democratic in name only” because special interests run things.⁹¹

A third serious problem with the media is that coverage is even worse on issues of public policy that are not immediately connected with candidates for election. In 1998, when the tobacco industry decided to oppose the amended version of Senator John McCain's Universal Tobacco Settlement Act—which unlike an earlier version did not protect tobacco companies from tort suits—the industry spent $35 million on television ads attacking the bill.⁹²

Viewers were regaled with pictures of a cuckoo bird coming out of a clock, while an announcer solemnly intoned that it was cuckoo time in Washington—with the settlement likely to cause huge new taxes on working people and sixty new bureaucracies.⁹³

Kathleen Hall Jamieson of the Annenberg School for Communication says that the ads lacked context and were misleading.⁹⁴

They did not explain, she points out, the purpose of the taxes or the use to which the money would be put. The charge of sixty new bureaucracies cited an apparently impartial source, yet in fact, the source was merely quoting from a speech made by a tobacco company executive.⁹⁵ By contrast, the American Cancer Society sponsored the only ad supporting the bill, which ran for a single week and reached a far smaller number of viewers. Both the New York Times and ABC News ran a single story pointing out inaccuracies in the tobacco industry ads. CNN, which aired most of the ads, did not run a single piece evaluating the accuracy of the tobacco companies' ads.⁹⁶ In spite of very strong early support, this version of the bill was defeated.

Citizens for Better Medicare spent $65 million in ads opposing an effort during the Clinton Administration to add a prescription drug benefit to Medicare.⁹⁷

In the ads, a woman named “Flo” warned viewers of the need to keep the government out of their medicine cabinets.⁹⁸ Under the law at that time, the ads did not need to tell viewers that Citizens for Better Medicare was created by the pharmaceutical industry.⁹⁹ The corporate owners of television did little or nothing to inform viewers on that score. The checking function of television journalism is hardly robust in such cases.

In initiative and referendum elections, poorly funded grassroots coalitions typically face well-financed, corporate-backed organizations. Often only one side gets a meaningful hearing in the electronic square, where advertising, especially on television, is expensive. The “debate” is closer to a monologue.

The fates of two recent Oregon ballot measures exemplify this disparity and the difficulty of overcoming the power of corporations to disseminate their preferred messages. Opponents of Oregon Measure 27, which would have required labeling of food containing genetically engineered material, spent $5.4 million to defeat the measure; its supporters spent barely $80,000. The measure failed in November 2002. The same year, insurance companies and their allies spent $1.3 million to defeat Oregon Measure 23, which would have extended health insurance coverage to all Oregonians and authorized tax increases to pay for the program. Supporters spent about $70,000.¹⁰⁰

This measure also failed.

In a 2002 California public power initiative, Pacific Gas and Electric (PG&E) spent $2.7 million in its successful effort to defeat the measure, compared to $50,000 spent by supporters. The initiative would have allowed the San Francisco Public Utilities Commission to provide power to all of San Francisco, rather than just its 30 percent share, and would have given it the prerogative to buy out PG&E's local distribution network. PG&E outspent the supporters of public power by a ratio of fifty to one. As a result, according to news reports, PG&E was able to “blanket the city in broadcast and print advertisements.”¹⁰¹

A study of seventy-two ballot issues in California, Massachusetts, Michigan, and Oregon showed that the higher spending side won 76 percent of the time. Lopsided spending is most effective in defeating proposals.¹⁰²

With the repeal of the Fairness Doctrine, which guaranteed some degree of balance, the disparity in the amount of television time each side can obtain has increased.

The fourth serious problem with today's media is conflicts of interest. The press has always had such conflicts, but media consolidation has aggravated the problem. The Walt Disney Corporation hopes to market its products in China's huge and lucrative market. The Chinese elite dislikes films and news stories critical of how China treats Tibet.¹⁰³

Will Chinese objections affect how Chinese rule in Tibet is portrayed in future films or in the news outlets owned by Disney? In some cases, Chinese market power has already distorted the news. Television and press baron Rupert Murdoch wants to expand his media products in the Chinese market, and he has been careful to avoid offending the Chinese government.¹⁰⁴ In 1994, his Star TV eliminated the BBC international news from its satellite service because Chinese authorities objected to some of its coverage on human rights issues, and in 1998 his publishing house broke a contract to publish a book by the last British governor of Hong Kong because he was critical of China's antidemocratic policies.¹⁰⁵ Fortunately, the author found another publisher.¹⁰⁶

Many multinational corporations have substantial economic power that can affect press coverage. A number of magazines now allow advertisers to preview stories. In a 1977 article, the Wall Street Journal cited a letter from the Chrysler Corporation: “In an effort to avoid potential conflicts, it is required that Chrysler Corporation be alerted in advance of any and all editorial content that encompasses sexual, political, social issues or any editorial that might be construed as provocative or offensive.” The Journal article suggested that business mergers have given advertisers far greater clout with publishers than they had in the past.¹⁰⁷

In a 2000 poll, some 26 percent of journalists admitted to engaging in self-censorship of news stories because of conflicts of interest involving their news organization, its parent company, advertisers, or friends of the boss.¹⁰⁸

Forty-one percent admitted to reshaping or softening stories.¹⁰⁹

America's ever more consolidated media have other serious conflicts of interest. As we have seen, television and cable corporations reaped rich rewards from the tobacco company ads against the McCain Bill, while they did almost no critical (or other) reporting about this massive advertising campaign.¹¹⁰

The problem is not that tobacco, insurance, utility, and drug companies can and do buy a lavish hearing for their preferred views. It is that the other side is often virtually absent from the televised “debate.” The mass media is in the business of selling viewers to advertisers. An arrangement in which one side can afford to buy massive amounts of media time and viewer attention while the other cannot is, of course, not ideologically neutral. The United States has a regulatory system that favors the opulent over the poorly funded side of the debate.

Advertising is, of course, a major source of conflicts of interest between the fiduciary role of the press in a democracy and its role as a profit-seeking business. Advertisers can threaten to withdraw advertising from stations that carry stories critical of them. In addition, the pursuit of advertising revenue may tilt news coverage toward subjects and perspectives most likely to generate viewers in advertisers' target audiences.¹¹¹

The fifth problem with the media, especially the broadcast media, is the failure to perform their checking function. A version of ‘Gresham's law’ may be at work, by which simple stories that are cheaper to produce and easier to state in a few seconds drive out more complex and expensive investigative stories. The Savings and Loan scandal of the 1980s is estimated to have cost U.S. taxpayers between $500 billion and $1 trillion. Professor C. Edwin Baker observes that, “The media … found that early reporting was simply too difficult or boring.”¹¹²

Welfare fraud, costing perhaps 1/500th as much, was better covered.¹¹³ Similarly, even as crime was declining in the 1990s, reporting of crime stories increased.

B. Censorship by the media

The prohibitive cost of television time for the less well-funded side of public issues is a serious problem, as I noted above. Another related problem is the power of media corporations simply to refuse to carry ads for dissenters, even when they are able to pay. For example, television executives would not permit the Media Foundation, a group opposed to the ethic of consumption, to purchase television time for its advertisements, a denial that is hardly surprising since the major purpose of television commercials is to promote precisely this ethic of consumption.¹¹⁴

Similarly, in 2003 a group called Win Without War, whose members include the National Council of Churches, attempted to place television ads opposing the war in Iraq. CNN, Fox, and NBC declined to sell airtime on their national networks. CNN explained that it did not accept “international advocacy ads on regions in conflict.” An NBC spokesman, who confirmed the refusal of a local station to run the ad, said “[i]t pertained to a controversial issue which we prefer to handle in our news and public affairs programing.” Officials at Fox did not respond to repeated calls from a journalist seeking their comment.¹¹⁵

Other antiwar groups experienced similar frustrations at the local level. The Princeton-based Coalition for Peace Action had planned to run six ads. Comcast had accepted $5,000 in payment for the ads and agreed to run them in the Washington, DC, area, where the peace activists hoped to get the attention of lawmakers. Before any of the ads were telecast, Comcast issued a statement saying that it rejected the ads because it could not substantiate some of the claims made in them. Reverend Robert Moore, a United Church of Christ minister who is executive director of the coalition, was surprised: “I was under the impression that we enjoy freedom of speech in this country.”¹¹⁶

Experts in constitutional law know, of course, that, with reference to the mass media, as journalist A. J. Liebling put it many years ago, “[F]reedom of the press is limited to those who own one.” The Supreme Court, over only two dissenting votes in Columbia Broadcasting System v. Democratic National Committee (1973), found no free speech right to nondiscriminatory access to advertising on television.¹¹⁷ The question is not simply whether the Court's decision, viewed in isolation, was correct. The question is the effect of the decision as part of a larger pattern of media practices.

Understandably, media corporations often do a poor job of reporting stories that involve claims that their own interests and lobbying activities conflict with the public interest. Examples include conflicts over the television spectrum and high definition television, and demands for free time for political candidates.¹¹⁸

C. The Internet

Of course, the Internet has greatly democratized publishing. For the moment, anyone can be a publisher, just as anyone can be a speaker in the public forum. Reaching a mass audience or even a modest one, however, is a very different proposition. Most people still get most of their political information from television and, to a lesser degree, radio. Many of those who get political information from the Web get most of it from major media companies such as AOL–Time Warner, General Electric, News Corporation, Disney, and Viacom. Often the most heavily visited sites are ones that are publicized in the mass media. Still, the Internet has provided remarkable opportunities for outsiders to organize and to get their messages heard by others. For people today who share a commitment to a broad-based popular democracy, preservation of the democratic character of the Internet is a prime concern.

Corporate interests may be winning the battle to transform the Internet from a kind of public forum to something closer to a private shopping mall.¹¹⁹

For those who champion some form of participatory democracy, who seek to come closer to the ideal of a government in which all have an equal voice, the prospect of effective corporate control of the “information superhighway” is distressing.

Initially, the Internet used telephone lines. The phone companies were obligated to operate their lines as common carriers. They had to open their lines to all and could not interfere with the message or decide who could send or receive it. Now the Internet is migrating to broadband, a much faster and more flexible system offered by local cable companies and by phone companies through digital subscriber lines (DSL). Eighty percent of U.S. households have access to these broadband systems, though so far only 10 percent of Internet users use these more expensive services. Led by Chairman Michael Powell, the FCC voted to classify cable modem service in a way that left it free of common carrier, open-access requirements. The FCC is also moving to deregulate DSL and free it from common carrier restrictions.¹²⁰

This is the most recent defeat for those who battle for more open access to the media.

We can hope that wide access to the Internet is preserved, and that access is not severely undermined by the FCC's ruling, as access has been lost to other media by regulatory changes. Preservation of democratic access would be served by regulation. As C. Edwin Baker notes, “prohibiting enterprises that own and operate transmission facilities from also owning and marketing media content … [was] a clean, structural solution” to the incentive that companies have to use their power to disadvantage creators of competitive content or, for that matter, to block disfavored ideas. This approach led to “sensible legal prohibitions on telephone companies owning and selling (as opposed to carrying) cable programming. By requiring phone companies only to carry content, the incentive for the phone companies was to … reduc[e] bottlenecks and increas[e] communications flows.”¹²¹

D. The incredible shrinking forum

Public streets and sidewalks of the 1930s were a judicially protected public forum. People on downtown sidewalks weren't just shoppers; they were also citizens. They could go about their shopping, but their fellow citizens could also ask them to take political leaflets or listen to a street-corner speech. Then a change in architecture and ownership, combined with a change in the Court, transformed yesterday's citizen-shoppers into today's mall consumers. The change from public to private streets and sidewalks and malls set the stage for a greatly eroded public forum. The change was largely completed when the Burger Court reversed an earlier Supreme Court decision and held there was no free speech right in common areas of shopping malls.¹²²

Recently, sixty-year-old attorney Steve Downs refused to remove his “Give Peace a Chance” T-shirt on orders from a mall security guard at Crossgates Mall in New York. When he refused, he was ordered to leave the mall, and when he refused to leave, he was arrested.¹²³

As a free speech matter before the courts, the prospects for Downs' vindication were bleak. New York's highest court had found no free speech rights in common areas of shopping malls under its state constitution.¹²⁴ As a matter of federal and state constitutional law, the mall could disallow all political statements or it could discriminate among them, permitting, say, “Give War a Chance” T-shirts while banning those advocating peace.

Still, there is a happy ending to the New York shopping mall story. Hundreds of people—peace activists and civil libertarians—appeared at the mall to protest its policy. Though the mall had legal precedent on its side, the mall sought to drop the prosecution. The popular perception that the mall's censorship was a violation of free expression seemed to be a powerful force, even overcoming the “correct” legal view.

In Tinker v. Des Moines Independent Community School District (1969),¹²⁵

the Court, in an opinion by Justice Abe Fortas, upheld the right of public school children to wear black armbands to school to protest the war in Vietnam. Public schools, he wrote, are not enclaves of totalitarianism. In contrast, under Supreme Court precedent, “private” shopping malls, the successors to the downtown business districts of the 1930s and 1940s, can be enclaves of totalitarianism if they choose.

The danger is that corporations that own the cable or DSL lines that enter most of our homes will join the shopping malls. Thanks to the miracles of technology and a legal doctrine that treats the cable as purely private property, corporations might have the same control over expression that shopping malls now enjoy. Furthermore, corporate suppression of Internet speech might be harder to spot and might also get less publicity from the media.

The response to this concern, of course, is that the market would never tolerate such a transformation and that, in any case, regulation would violate the constitutional rights of the corporations. On this view, the cable or DSL lines that carry the speech that reaches mass audiences are treated as speakers, and the corporations that own them are treated as persons who may not be forced to carry ideas with which they disagree.¹²⁶

Thus, there is no public forum aspect to the information superhighway. Once corporations establish control over their “information private highway,” how will megamedia companies respond to Web sites that criticize their power?

As the case of Steve Downs and the shopping mall shows, public protest can sometimes make a difference, at least to a degree. At a minimum, however, for effective public protest any private censorship needs to be visible and widely publicized. Some Internet codes and filters that limit free expression are invisible.