Freedom of Amplified Speech

Part 38 of Prisoners of the Real

The main function of news media is the communication of information and ideas. Since their public nature is also widely accepted, it is reasonable to conclude that most individual speech via these media isn't inherently intrusive. Furthermore, both print and electronic news media describe their work as disseminating information and viewpoints that are necessary for self-government. Approaches may vary, from reprinting press statements to investigating corruption. Still, all news media enterprises capitalize on the image that they reflect the mood, sentiments, and activities of the public. And most of the time they depend on members of the public as their primary sources. In fact, without the public, what would there be to report?

In short, with the exception of C-Span and noncommercial radio, US news media are mainly private enterprises with an essentially public function. The issue is whether and how they can be made more available to a wide variety of speakers. As long as the presence of more participants doesn't prevent them from performing their basic functions it is certainly a valid question to ask.

Broadening access to quasi-public forums is clearly consistent with the spirit of the First Amendment to the US Constitution. The real issue is whether it's possible. As every student is told, Congress is prohibited from abridging freedom of speech and of the press. It is not prevented, however, from taking affirmative steps to enhance the ability of individuals to gain access to public forums. This need not mean that the rights of "listeners" conflict with the rights of the press as "speakers." Instead, we can simply guarantee that individual speech isn’t snuffed out because powerful media owners arbitrarily decide that only they, their employees or their friends deserve access.

The idea that government can take action to insure relative equality in the ideas marketplace was explored in the 1972 Supreme Court case, Police Department of the City of Chicago v. Mosely. In that case, a man who had been picketing peacefully near a school to protest discrimination sought to overrule a city ordinance that prohibited picketing within 150 feet during classes – unless the pickets were involved in a labor dispute.

The case posed this question: What is the relationship between equality and the First Amendment? Noting that the ordinance was a form of censorship based on subject matter, Justice Marshall wrote, "Above all else the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." He went on to say that the principle involved was "equality of status in the field of ideas."

Chicago v. Mosely set out two complementary aspects of access to public forums. It prohibited government from judging the content of speech, and provided ground rules for channeling expression based on "time, place and manner restrictions." In other words, any decision to exclude speakers should be the minimum necessary. For example, if a community wanted to protect its children by restricting TV advertising on Saturday mornings, theoretically it could do so if the action was proven to be the "least means" of reducing the exposure of young people to socially destructive messages. Although the Court has found it difficult to set clear boundaries for access, the concepts of "least means" and "content neutrality" do provide a basis for setting limits on corporate and personal speech.

The issue is not whether the message makes a significant contribution to self-government. Rather, this approach assumes that all messages are valid expressions of individual autonomy, contributing to the speaker's sense of self-worth. Media managers can set time, place and manner restrictions – rules dealing with length, distribution throughout the day or the publication, and repetition. Communication can even be barred at certain times, as long as the decision doesn’t discriminate based on content.

Such access to dominant public forums could be called freedom of "amplified speech." In practical terms, it would mean expanded citizen access to newspapers, compensating for the virtually unlimited access afforded to corporations and other large institutions. The rights of reporters and editors – society's "informed speakers" – would be brought into balance with the rights of non-journalists, possibly even enhancing the role of the press in checking abuses of power.

Electronic media would have the right to impose restrictions, but these would have to apply equally to wealthy and poor speakers, to those with views that agree with the owners and those with ideas they oppose. For the cable industry, freedom of amplified speech obviously involves access to a channel and equipment for anyone who wanted it. The articulate and technically knowledgeable will have an advantage at first, but experience tends to reduce such disparities over time.

In each case, the right applies only to individuals, since freedom of expression is fundamentally a personal right and freedom of the press really means the right of citizens to use various means of communication without prior restraint. Under this approach, institutions wouldn't be prohibited from issuing messages and opinions, but their speech should receive no special protection or treatment.

This ultimately leads to the big question: who decides? Hopefully, the speakers themselves or their communities would make most of the choices. Every person has the basic right to choose when to speak, whether, and about what. Participation should never be compulsory. On the other hand, the gates of a public forum shouldn't be locked when someone wants to use it. Relying again on the "least means" test, most disputes can be resolved at the local level.

Such solutions will usually be less expensive and time consuming. When local action is impractical, however, the next level of government will have to intervene. The goal is to find the way to leave future options open, in the community, across the nation, and around the world.

If individuals and communities are to assert such rights, a new form of literacy must be cultivated. The right to self-expression will have little value unless the message can be effectively conveyed. This is a complex social issue, growing out of the technological revolution of the late 20th century, and must be addressed by all our institutions, particularly schools. Working as enablers (another word we may want to reclaim from its negative definition), along with local government and educational organizations, media institutions can be instrumental in developing a citizenry with the capacity for full self-expression.

If young people are to become effective and self-regulated speakers, if they are going to develop a sense of self-worth and make meaningful contributions to a self-governing society, media literacy must be an intrinsic part of their education. This area of study should go beyond how to use computers and handheld devices, including a critical awareness of the role mass communication plays in society, as well as effective techniques of speaking, writing, programming, and visual presentation, and an understanding of how media affect opinion formation and the democratic process. If access to the "ideas" marketplace is to be meaningful, skill development and critical understanding must start at an early age.

Interpreting political rights from the standpoint of autonomy also requires a balance of negative and affirmative aspects. Speech is usually considered a negative right; that is, a restriction on government's ability to restrain communication by the people or the press. Any fair analysis of contemporary problems, however, will reveal that the threat today is not mainly government but instead the manipulation of media and mass perceptions by giant institutions with enormous economic and information power at their disposal. Protecting free speech therefore requires affirmative action to re-open the marketplace of ideas. Failure to fulfill this responsibility leaves the power to inform and, ultimately, to censor and control in the hand of a few private interests.

Although news media claim special rights due to their important public function, they normally deny that they have a responsibility to keep their doors open. In the face of such hypocrisy, intervention is sorely needed if the right of self-expression is to have any real meaning in the years ahead.

The survival of a free society depends ultimately on the actions of self-governing people. But people can’t manage their society, or their own lives, if they lack the sense of dignity that comes from exercising the right of self-expression. No government can guarantee democracy. No business can manufacture it. And the media can’t sell it. The best any of them can do is to keep the door open. If they just do that, the vast potential of humanity will take care of the rest, and the promise of a self-governing society may yet be kept.

Cynics complain that no government can be trusted, or that humanity simply isn't capable of self-rule. Sectarian ideologues say that all reforms are futile and the only way to transform society is through a disruptive (and inevitably violent) break with the past. Both approaches carry the burden of despair, a loss of faith in the possibility of moving, day by day, toward a better world. What such extreme views lack is hope, that richness of spirit essential for any lasting change.

Next: The Dionysian Approach

To read other chapters, go to Prisoners of the Real: An Odyssey