Speech May Be Free, But It Sure Isn't Cheap

by Steven Hill

This article has been published in Z Magazine and The Humanist

On January 12, 1994 the U.S. Supreme Court took a plunge down the information superhighway. The Justices heard opening arguments in Turner Broadcasting System v. Federal Communications Commission about whether the cable industry's free speech rights are being trampled by a 1992 federal law that requires cable systems to set aside up to one third of their channels for local broadcasts. As telecommunications technologies like cable TV, the telephone, and the computer merge, billions of dollars in profits are at stake. The cable industry loses potential revenue for every pay-per-view or movie channel they must replace with local stations broadcasting their own mix of local news, sit-com reruns, educational and culinary programs, old movies and the like.

It is ironic that the cable industry should make a First Amendment claim in Turner v. FCC to deny local broadcast, since the intent of the federal law was to offset the cable industry's monopoly that was increasingly crowding out the local broadcasters. The comments of legal scholars on both sides reveal a contradiction: in the modern age effective speech is neither free nor cheap. The rights of those who can afford to buy a lot of speech can drown out the rights of those who can't afford it, as much a s any government censor. Today, speech is property, and some of us have more of it than others.

But what if we were to take the monolithic free speech provision of the First Amendment, and break it down into two distinct categories -- wealthy speech and cheap speech? How would that affect our understanding and policy-making regarding that doctrine? What if our First Amendment jurisprudence were to distinguish between the free speech of say, the New York Times and a soapbox radical, or between General Electric-owned NBC and a homeless single mother? Or between nationally-based cable industry leade r TCI and the smaller locally-based stations? As obvious as such a distinction may seem, current First Amendment theory treats the free speech doctrine as mostly a nondiscriminating monolith, allowing very little distinction between the elephants and the ants of the media, let alone between corporations and individuals or the rich and the poor. Constitutional conservatives, First Amendment purists and many civil libertarians take literally the First Amendment proscription saying "Congress shall make no law... abridging the freedom of speech." No law means no law, they say.

So much for theory. In practice, if the U.S. Supreme Court's past record in matters of speech is any indication, it seems that the justices have been quietly making their own distinction between "wealthy" speech and "cheap" speech for at least twenty fiv e years. A clear pattern has emerged. During the Warren, Burger and Rehnquist courts, in case after case regarding matters of speech, the winner has been the well-to-do and the loser has been those with lesser means. It's as if, in the eyes of the Cour t, free speech is synonymous with wealthy speech, while cheap speech has been pushed to the margins of First Amendment protection. These results are troubling, especially since the Court will have an opportunity in Turner v. FCC to extend its First Amend ment jurisprudence to the emerging telecommunication technologies.

For instance, in 1984, Chief Justice William Rehnquist wrote the Court's decision striking down Congress's efforts to restrict campaign expenditures made by political action committees like the National Rifle Association, in Federal Election Commission v. National Conservative Political Action Committee. Rehnquist seemed to think he was being inordinately fair and nondiscriminatory when he reminded us that the Court's decision applied equally to multi-million dollar PACs as to "informal discussion groups that solicit neighborhood contributions to publicize their views."

This decision followed a consistent series of decisions by the Burger-Rehnquist Courts expanding the wealthy speech rights of banks, private corporations and millionaires on the one hand, and restricting the cheap speech rights of the grass roots and comm unity activists. During the past two decades the Court has: upheld the right of banks to spend money to influence the outcome of public referendums; affirmed the right of millionaires to spend unlimited personal funds on their own elections ("Thank God! " says Ross Perot -- "Too bad" says Larry Agran and Ron Daniels); affirmed the right of utilities to include statements on issues of public policy with their monthly bills to their customers; struck down laws used to curb state regulation of commercial ad vertising; and in March 1993 reaffirmed that advertising and commercial speech are accorded substantial constitutional protection, a status that did not even exist prior to 1976. The only deviation from this pattern was the Court's affirmation of a Michi gan law prohibiting corporate spending in support of political candidates.(see footnote 1)

These decisions are in stark contrast to others involving the exercise of cheap speech by those poorly financed causes of the grass roots. In these cases the majority found ample justification for government restriction, often as a means to protect priva te property. For instance, the Burger Court held that shopping malls, despite having replaced public town squares as the new public arena, were private property and not subject to the First Amendment (since then, a few state courts have decided, under th eir own constitutions, that malls must accommodate free speech). Also, the Burger-Rehnquist Courts have ruled that the federal government could prohibit the deposit of leaflets and circulars in the mailboxes of private homes; that the Fairness Doctrine d id not have to be extended to include the print media, opening the door to a repudiation of the Fairness Doctrine by a Reagan-appointed FCC; and that the Combined Federal Campaign, which facilitated charitable contributions by federal employees through pa yroll deductions, could exclude from participation advocacy groups such as the N.A.A.C.P. and the Sierra Club (a decision which was subsequently reversed by Congressional action).

In addition, the Court has also manipulated "time, place and manner" restrictions, ruling that the city of Los Angeles could prohibit the posting of posters on public property such as utility poles and trees; that the managers of a publicly operated state fair could limit the activities of religious solicitors to an assigned booth and bar them from the crowded midway; that homeless people could be prevented from conducting a symbolic sleep-in at the public park opposite the White House; and that the sidew alk in front of the post office could be placed off-limits to political solicitation. In all of these decisions the Court's reasoning seems to indicate that the homeless and poorly financed have available to them other channels of communication than thos e being restricted, since they are entitled -- just like major corporations and wealthy individuals -- to use their own private resources, however meager, to publish their own newspaper or set up their own PACs that can spend unlimited amounts on their lo bbying efforts. Apparently in the foot race of the First Amendment, it doesn't matter if a competitor is of Olympic caliber or a grade-schooler, as long as all competitors begin at the same starting line.

This historical context is essential for understanding the magnitude of Turner v. FCC, and other cases regarding the telecommunications industry and the information superhighway that will be heard by the Supreme Court in the years to come. As a result of the rapid growth of communications technologies, vexing legal questions will be revisited concerning computer bulletin boards and the like, questions of libel, of pornography and obscenity over the wire, of rights to privacy, of exposure of children to v iolent and adult material, and so on.

But perhaps most vexing of all is the question of the availability of the new communications technology to the general public. In a few short months, Congress is slated to auction off to the highest bidder 120 megahertz of frequencies for cellular and pe rsonal communications services. The going price for each frequency is at least in the tens of millions of dollars, and the Congressional Budget Office estimates that the auction will raise $10 billion for the Federal Treasury. At that price, only the we althiest will be able to afford to buy. Wireless communication and other telecommunication technologies are poised at what could be the 21st-century version of the great Western land grab, except only the land barons will be eligible.

"I tend to look at cable and telephone as part of one big food chain," said John Malone, chief executive of cable industry leader TCI, in a moment of candor. "Right now, the higher mammals are doing the eating."

"We're throwing 120 megahertz out there and it's going to change the world," cautions the FCC's Tom Mooring. "We don't know for sure what's going to happen, but we do know it's going to shake things up."

The government has established a few mitigating rules, setting aside a portion of the frequencies for minority-owned businesses and limiting how much frequency any existing cellular companies can control in a given service area. Yet these types of restri ctions and set-asides are exactly what the cable industry is presently fighting as a violation of their free speech rights, in lawsuits like Turner. The ability of many individuals to pay for access to the information superhighway is in no way guaranteed , and existing economic disparities could easily be exacerbated, the gap between rich and poor, between the haves and have nots, intensified. To an uncomfortable degree the public's accessibility will be in the hands of a U.S. Supreme Court which, as we have seen, has had an ideological sympathy with wealthy speech over cheap speech.

Is it wise to allow the First Amendment to be captured like this by our economic system? Some legal experts and policy advocates are beginning to question certain constitutional presumptions, sounding an alarm that the new telecommunications technologies , like free trade agreements, may exacerbate anti-democratic and authoritarian tendencies.

"As history has shown time and time again," says electronic media consultant David Bollier, "the unfettered marketplace will not produce a telecommunications system which adequately serves the full spectrum of society's needs." The free market model is n ot truly operative here, insists Bollier, since market forces push the electronic media toward monopoly. And the few large media players that survive, gobbling like Pac-Men for ever larger pieces of the market, are pushed by commercial forces toward homo geneous programming. Despite the availability of thirty or more channels, the familiar complaint is that "there's nothing on tonight." Does anyone actually believe that 100 or 500 channels will change this? The free speech of TCI and the Turner Broadca sting Company, or NBC and the New York Times, has not yielded even a close approximation to the classic "free marketplace of ideas," says Bollier. Nor have the media offered choices in any way equivalent to the diverse kinds of expression that make up U. S. society.

The new telecommunications infrastructure has the potential to serve as an instrument to re-invent and liberate contemporary media. But this will require fresh imaginative federal policy, as well as a U.S. Supreme Court capable of reversing its past alle giances to wealthy speech over cheap speech. Policy advocates who favor the public's accessibility to the telecommunication technologies must recognize the very real and significant differences between wealthy speech and cheap speech, and cease treating the free speech doctrine of the First Amendment as a nondiscriminating monolith. A jurisprudence acknowledging the difference between wealthy and cheap speech, and in addition upholding a principle that society has a compelling interest in valuing the la tter even at the expense of the former, will put the public's accessibility to the information superhighway on a more solid footing. Set-asides of cellular frequencies for minority-owned businesses is a good start, as are set-asides for local broadcaster s and for those wacky Wayne's World programmers of late-night public access television. Such trends need to be defended when attacked, and broadened and strengthened.

Indeed, the very principle of set-asides is under attack in Turner v. FCC, just as affirmative action set-asides like those for minority contractors have been assailed. But what is significant in Turner is that the set-asides are under attack by a free s peech argument. It is counter-productive to ignore the complexities and ambiguities of such an attack. People with little money need effective speech as much as people with a lot of money -- arguably more so. But in the 1990's, because effective speech is sold to the highest bidder, cheap speech may become an increasingly irrelevant and endangered species. Regrettably, the public space for cheap speech is actually shrinking as local, state and federal governments and courts restrict public postering, leaflets on car windshields, leaflets in shopping malls, use of amplified speech in public areas, and other forms of cheap speech. But the solution cannot be simply a cry for "more speech," since that does nothing to alter the market forces that are corr alling the First Amendment.

First Amendment purists and civil libertarians who claim to be for the public's accessibility to the information superhighway and for a monolithic nondiscriminating free speech doctrine fight for one at the expense of the other. But a jurisprudence that argues for a compelling interest to expand cheap speech even at the expense of wealthy speech offers a viable route out of this dilemma. Anything less perpetuates a free speech doctrine that has allowed the U.S. Supreme Court's sorry track record the pas t twenty five years, during which capitalism has almost always won, and "We, the People" have almost always lost.

Stay tuned this summer, when the U.S. Supreme Court will render its decision in Turner v. FCC.

1. see "Free Speech for the Rich" by Professor Frank Askin, The Nation, Dec. 10, 1990

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