Assistant State Public Defender, State of Minnesota. J.D. University of Minnesota 1998. I would like to thank my wife for her patience and support and dedicate this article to Sadie, who always kept me alert when writing.
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.
-First Amendment, United States Constitution
On its face, the First Amendment grants only liberty-freedom from governmental regulation of speech, freedom from government interference in religion, freedom to organize, and freedom to dissent. The first five words-"Congress shall make no law"-make clear that it is the government's powers that are restricted. But with regard to the freedom of speech and of the press, these words have evolved from a declaration of the rights of citizens to be free from government regulation into a declaration of the necessity of government regulation to protect the rights of citizens.
This article will explore how the First Amendment's evolution was a necessary response to changes in our nation's media. More importantly, this article will demonstrate that, as society has abandoned a pragmatic approach to the media in favor of a return to the original concept of liberty from government, society is undermining one of the most fundamental political institutions and posing a threat to the continuing viability of our democratic process.Page 690
And though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously, by licensing and prohibiting, to misdoubt her strength. Let her and Falsehood grapple: who ever knew Truth put to the worst, in a free and open encounter?
-John Milton, The Areopagitica (1643)1
Mass communication, or "the media," carries and transmits a variety of political and social messages from opinion leaders to voters; it is our modern political infrastructure. Evaluating the health of this infrastructure requires understanding the choices involved in, and consequences of, its design, construction, and redesign.
More than a century after John Milton wrote his defense of a free press in The Areopagitica, Thomas Jefferson, a continent removed, was in the process of putting Milton's rhetoric into practice. Seeing a free press as essential to the new democracy that was being reworked in the Constitution and Bill of Rights, Jefferson commented that "[w]henever the people are well-informed, they can be trusted with their own government."2Jefferson understood, even in our nation's infancy, that democracy does not exist in a vacuum. Jefferson understood that because the will of the people is the active force in a democracy, the will must be enlightened.
The importance placed on a free press in the Bill of Rights was certainly derivative of the role the press played in the formation of America. Toward the end of the colonial period, small local presses began to produce pamphlets and leaflets critical of English colonial policy, fomenting discontent among the colonists.
By the time the First Amendment was adopted in 1791, the press had evolved into a relatively small number of highly partisan newspapers.7Though the writings of the independent colonial newspapers contributed to the expulsion of the British from America,8the new government did not take long to tire of an antagonistic and independent press. In 1798, Congress passed the Sedition Act,9which criminalized the publishing of writings intended to bring the United States government into "disrepute." The goal of the Sedition Act was not to spare the nation's reputation but to deny Antifederalists like Jefferson a platform from which he could launch his philosophical attacks on the Federalist Adams Administration.10Though the Sedition Act was not an enduring piece of legislation,11the very existence of the Act stands as aPage 692 reminder of the power of dissenting voices in the press and of the urge of those in power to control them.
Throughout the nineteenth century, the press, consisting of local and regional newspapers, continued to wield its influence relatively free from interference or regulation. The freedom enjoyed by the press in the nineteeth century gave way to a more restrictive atmosphere in the early twentieth century. The First World War and the rise of Communism motivated the U.S. Congress to pass the Espionage Act of 1917 (Espionage Act)12and the Sedition Act of 1918.13The Espionage Act and the Sedition Act of 1918, which criminalized an assortment of antiwar activities,14were close cousins of the Sedition Act of 1798. The enduring importance of these acts was not a long-lasting impact, but rather the formalization of modern First Amendment theory. In Abrams v. United States,15the U.S. Supreme Court upheld the Espionage Act convictions of a small group of Russian immigrants who had passed out leaflets protesting U.S. policy against the emerging Bolshevik regime. The Court found no First Amendment violation resulted from the convictions because the prohibited words created a clear and present danger of obstructing the war effort.16Justice Oliver Wendell Holmes dissented, recognizing that the real issue was not national security, but the public's right to express discontent with government policy. Holmes observed that "the ultimate good desired is better reached by free tradePage 693 in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market . . . ."17
While Holmes's dissent in Ahrams was the first appearance of the "marketplace" as a metaphor for the aspirations of the First Amendment, the concept of ideas competing for adherents had deep roots: Holmes drew heavily upon the rhetoric of both Milton's Areopagitica18and John Stuart Mill's On Liberty.19Perhaps due to deep roots, Holmes' metaphor grew to be the dominant view of how the First Amendment functions. A majority of the Supreme Court first relied on the marketplace of ideas metaphor in a 1945 opinion in which the First Amendment is described as resting "on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public."20The "marketplace of ideas" has since remained the dominant metaphor used in First Amendment jurisprudence.
Nearly three decades later, the Supreme Court in Red Lion Broadcasting v. Federal Communications Commissioner21declared that
- the purpose of the First Amendment [is] to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or by a private licensee .... It is the right of the public to receive suitable access to social, political, aesthetic, moral, and other ideas and experiences which is crucial here . . . .22
The Court's Red Lion statement articulated a view of the First Amendment that stands in stark contrast to the actual words. First, the Court states that the marketplace of ideas may sometimes require "preservation," in other words, government action. According to the Court, the First Amendment is not without a sense of irony: the power to regulate speech emanates from the First Amendment's declaration of freedom from government regulation of speech. Second, the Court emphasizes the public's right to receive information and not the media's right to disburse it.Page 694
In prioritizing the rights of the political consumer over those of the media and recognizing the government's duty to enforce those priorities, the U.S. Supreme Court demonstrated the view that the First Amendment's meaning differs dramatically from the text. Whereas the text of the First Amendment only emphasized the government's limitations concerning public discourse,23in Red Lion, the Supreme Court emphasized the government's role in protecting a democratic ideal. In other words, the Court said the ends (a robust marketplace of ideas) justify the means (regulation). The political consumer-oriented approach endorsed by the Court was crucial to the development of our nation's media.
The twentieth century ushered in a new era of media, as news-gathering and opinion-making entered the age of broadcast. As with the print media before, the new technology-radio-was initially unregulated; this did not last long.
A "tragedy of the commons" is a situation where a collective resource is squandered because individuals, acting in their narrow self-interest, have no incentive to limit consumption of resources.24This concept was...