Democracy is impossible without a free press. At least courts and commentators tell us so.(1) This consensus, however, floats above crucial, more controversial matters. What type of free press does democracy need and why does democracy need it? Answers to these questions allow the next question. Are existing media in this country adequate? Do they provide for the informational or communication needs of democracy? And if not, in what way do they fail, and what can be done? If there are inadequacies, do they reflect bad decisions made by media professionals, such that the prime need is for better, smarter, tougher editors and reporters or better training in journalism schools? Or do inadequacies reflect, at least in part, deeper structural problems? And if governmental policy correctives are necessary to make matters better, what interventions would promote a more "democratic press"--that is, a press that properly serves a society committed to democracy?
These questions implicate central issues of First Amendment theory. Agreement on two abstractions--that democracy requires a free press and that the First Amendment protects a free press--is relatively easy. But what constitutes "freedom of the press"? That question cannot be answered without understanding the role or purpose of the constitutional guarantee. If the Press Clause is a structural provision designed either to support or to protect a press that adequately serves democracy, how does this premise affect the interpretation of the Press Clause?
Well, that's the agenda. But how to proceed? To assess the media's service to democracy requires a theory of democracy. A choice among possible theories will largely reflect why the chooser values democracy, a normative issue about which people inevitably disagree. Although variations may be infinite, three or four rough approaches may capture most people's view of the normative rationale for democratic government. First, elitist theories of democracy often reflect the somewhat cynical view that the only good thing (although a very important thing) about democracy is that it is better than the next best alternative. Somewhat more optimistically, many people value democracy as the only form of government that respects people's equality and affirms their autonomy. It embodies the equal right of each person to participate in matters of collective self-determination. Democracy is a political order that respects each person as an equal in her status as a citizen and as a moral agent. Democracy provides a form of public liberty that is inextricably bound to private liberties, whose existence requires, and is required by, public liberty.(2) Within the legal- and political-theory literature, two dramatically different ways of respecting people's equality are often described. In a liberal pluralist or interest group conception of democracy, an ideally functioning democratic system is equally influenced by the desires of each person; a well-functioning democracy is the fairest mechanism of aggregating preferences or desires for purposes of making law and policy. In a republican conception, an ideally functioning democracy is open to everyone's participation in the formulation of collective ideals and public goals; democracy is an open process of defining and advancing the public good.
The next Part fleshes out these three theories of democracy, describing premises that make each plausible and maybe even appealing.(3) It also de scribes what each theory--the elitist, the liberal pluralist, and the republican theory--require of or hope for in the media. In addition, the next Part describes a fourth approach, which I label "complex democracy," that may be somewhat less familiar, but which I defend and to which I believe our constitutional order is roughly committed. Complex democracy claims to express a more realistic empirical, and a sounder normative, perspective than offered by either liberal pluralist or republican democracy. It expects the media to take on the tasks assigned by each of these theories and, in addition, to support the self-constitution of pluralist groups.(4) Since these different tasks are sometimes in tension, complex democracy complicates the problem of assessing media performance. It turns out, or so I argue in Part IV, that this complication restricts the issues that should be resolved constitutionally. Before getting to the constitutional issue, however, Part II identifies the democratic theory implicitly held by several prominent conceptions of journalism, and Part III considers each democratic theory's implications for media policy.
DEMOCRATIC THEORIES AND THEIR CORRESPONDING MEDIA
Modern societies require governments for a host of reasons, many involving the need to sidestep collective-action problems that would exist in a world of purely private action. Governments can increase the flexibility, the usefulness, and the effectiveness of a legal or normative order that is used to resolve disputes, help people coordinate private behavior, and encourage productive or "pro-social" behavior. The question is what type of government would be best at performing these functions. At least one analysis, the first to be considered here, suggests democracy, but democracy of a distinctly limited sort.
Good governments must routinely respond to problems that are technically complex. Moreover, governmental interventions are often most effective if implemented before people experience a problem. Effective responses frequently rely on intricate economic and scientific analyses. Most people have neither the interest nor the ability to understand, much less to devise solutions for, the problems facing society that government should address. Experts and specialists at understanding the economic, human, and natural environments must do the bulk of the government's decision making work. As Walter Lippman argued seventy-five years ago:
"There is no prospect ... that the whole invisible environment will be so clear to all men that they will spontaneously arrive at sound public opinions on the whole business of government. And even if there were a prospect, it is extremely doubtful whether many of us would wish to be bothered, or would take the time...."(5) More recently, Vince Blasi questioned whether citizen involvement describes either the "reality" or the "shared ideal of American politics"; he suggested that "occasions for involvement in public affairs [such as; the necessity to stop totalitarian forces] are a cause of sadness," not a description of the good society.(6) Widespread popular involvement in government seems, to many, at best a romantic, but idle, fantasy--and at worst a disaster.(7) The complexity of the modern world requires that policy-oriented decision making be a full time activity. A country can only be governed sensibly by vanguard leadership elites or skilled experts. Nevertheless, three practical problems come with government by experts, by technicians, or by purportedly wise leadership elites. These three problems point to the desirability of a limited form of democracy--that is, where "people have the opportunity of accepting or refusing the men who are to rule them" as a result of "a free competition" for votes(8)--as the most practical form of government, at least for more developed societies.
First, an effective government cannot rely primarily on force to gain obedience. Reliable legal orders require high levels of voluntary compliance to most of their laws, by most of the population, for most of the time. To a significant degree, voluntary compliance often reflects habit, lack of reason to deviate, or the overlap of the laws' substantive directives with behavior adopted for a person's own practical or normative reasons. Still, compliance with legal commands that require conscious conformance can be expected to be more stable and secure when people view the government as basically legitimate.(9) The problem is, at least in a world dominated by Enlightenment values, that people are unlikely to accept a self-perpetuating government of elite technicians as legitimate.
Second, some experts and technicians will be more skilled than others in responding to a society's problems. In the economy, the invisible hand of the market (hopefully) works to determine which "experts" do the best job. Competition assures that ineffective solutions and inept problem solvers lose out.(10) In governance, however, no such system works automatically. Optimistically, badly managed regimes will collapse in the long run, as arguably happened with the Soviet Empire. But the long run is hardly heartening for those living at any moment. Think of the pain that could have been avoided and the gains that could have been obtained if the Soviet regime (at least, accepting common critical assessments of it) could have been replaced earlier (at least, if replaced by something better). A country needs some systematic, structural means of replacing less effective, less intelligent experts with others who may do better.
Third, no one's commitment to the public good is ever perfect.(11) Cynics suggest that, as opposed to a person's dedication to her own personal or private good, dedication to the public good is seldom evident. Outright corruption, as well as small-time advantage seeking, is endemic to government and governmental leadership.(12) No matter how idealistic the revolutionaries, no matter how patriotic the coup's new rulers, history consistently portrays them as losing their civic virtue over time and well-intended government degenerating into corrupt administrations. Reasonably acceptable government, whether or not comprised of elites, depends on finding systematic, structural means to keep the level and type of corruption within limits.
Democratic elections provide partial solutions to each problem. For reasons not necessary to consider here, the legitimacy of unelected...