2 What Kind of Press Freedom Does Democracy Need?
If press freedom is to mean anything, it needs a normative rationale. That is, for the press to claim that it needs cultural and constitutional protections—that its own decisions and contributions are somehow distinct from those of others—it must show why its vision of democratic life is realizable by no other institution. How does the press’s unique set of professional standards, ethical values, publishing technologies, and public narratives produce a kind of self-government that others cannot create?
Most of this book is an attempt to trace the how of contemporary press freedom—to describe the tensions in tools, practices, norms, and infrastructures that collectively distinguish the networked press from other fields of communication and to show what types of structural controls and leverages are available for configuring the networked press and its freedoms. But first I want to focus on the why of press freedom—to trace reasons the press might give for its unique character and contributions, equipping press designers, advocates, and critics with some democratic theory with which to shape and debate the networked press. In the era of nearly instantaneous digital publishing and ubiquitous social network sites, the press is at an existential crossroads. It must demonstrate not just how it differs from other publishers but why—normatively, structurally, institutionally—it should be allowed and required be different and how its differences are essential to realizing a particular type of democratic life. As C. Edwin Baker (1998, p. 318) puts it, assessing “the media’s service to democracy requires a theory of democracy,” and conversely, different theories of democracy make different demands of the media.
In unpacking the why of press freedom, I want to suggest in this chapter that one way to think about the press’s freedom is how well it ensures a public right to hear. That is, although the press might configure itself in a number of different ways (configurations I explore in subsequent chapters), it might most legitimately defend its unique identity and freedoms to the extent that it helps people hear in ways that markets, states, social networks, algorithms, and self-interest alone cannot create. In Baker’s language, the press’s value to democracy and therefore the legitimacy of its claims for freedom depend not only on how well it endures government oversight or meets the expectations of consumers choosing among viewpoints presented to them by their friends, search engines, or curiosity. The press also must create the conditions under which publics can hear—conditions that require the press to take the public as its primary concern, have a theory of why it matters, and an understanding of how it hears.
I develop this claim—that the press’s freedom depends on how well it ensures a public right to hear—in four ways. First, I argue that the idea of democratic autonomy requires seeing individual freedom as a product of social relationships. Second, I review the demands that this view of autonomy makes on free speech, arguing that autonomy requires more than individual expression in marketplaces of speech. Third, I describe a structural, institutional model of the press, grounded in an affirmative interpretation of the First Amendment and a review of relevant U.S. Supreme Court cases to show that there is a basis in law for seeing the press as an institution that could be dedicated to ensuring a public right to hear. And finally, I use recent literature on the democratic value of listening to argue that the thoughtful absence of speech can be part of a rich system of public communication.
My aim in tying together these threads is to construct a normative case for press freedom grounded in the idea of a public right to hear, a little examined cornerstone of democratic life. That is, the press earns its own freedom by ensuring the democratic autonomy of its constituents—an autonomy requiring that institutions support public speaking and listening. Although the press’s freedom is a matter of institutional design, professional practice, and audience relations (explored in subsequent chapters), the meaning of constituents’ democratic autonomy is a problem for political theory that requires a close examination of what individual autonomy means in democracies.
The Idea of Democratic Autonomy
Although the concept of autonomy is “at the center of the modern democratic project” (Held, 2006, p. 260) and frequently is invoked by theorists and activists of all stripes, there is little agreement on what it means. Sometimes it is seen as unfettered action—individual, physical motions unimpeded by others—and at other times it is seen as an ability to change preferences in the face of changing circumstances (M. J. Meyer, 1987). Some scholars argue that autonomy requires knowledge and anticipation—that autonomous action can be taken only if someone is aware of their circumstances and available options and can reasonably foresee consequences of that action (Benn, 1988; Dworkin, 1988). Still others add that autonomy means making a decision independently because all forms of influence are potentially coercive (Arneson, 1985; Neely, 1974). Finally, other scholars distinguish between autonomy bracketed by global factors that are beyond a person’s immediate control (for example, not being free to act because of legal or military force, cultural norms, or social traditions) and by local influences that are within a person’s immediate, observable context and subject to individual interpretation (for example, personal relationships with friends or coworkers) (Dworkin, 1981). Randall Collins (1992, p. 77) goes so far to suggest that that individual agency is a “fantasy … which we find pleasant to believe in”—an unfortunate result of naively misapplying the findings of microsociologists like Erving Goffman and Harold Garfinkel to the powerful restrictions on individual freedom that are better explained by macrosociological accounts of sociopolitical forces. Collins claims that Anthony Giddens’s (1984) theory of structuration—in which social structures and human agency continually reflect and recreate each other (Sewell, 1992)—presents a romantic and empirically unsupported vision of life because although people craft numerous folk theories about why society behaves as it does (D. Beer & Burrows, 2010; C. W. Mills, 1959/2000), “real-life individuals do not know very much of the social structure which surrounds them” (Collins, 1992).
Nevertheless, especially among Western political ideals and traditions, autonomy is usually about the individual’s power to self-govern (Christman, 1988, 1991). It is rooted in a Kantian desire for “freedom of the will from causal determinism” (Fallon, 1994, p. 878) and driven by a desire to use reason—as opposed to religious faith, naive spiritualism, or monarchical allegiance—to make decisions (Kant, 1785/2002). Autonomy is a future-oriented concept—a way to talk about what people can imagine and realize and a way to critique the extent to which their current circumstances let them create the world in which they wished they lived.
But this focus on an individual—on how preferences, knowledge, anticipations, and actions can be achieved unencumbered by others—is inadequate. It presumes that such individual freedom is possible in the absence of a social system, gives us few clues about how it might be achieved, and pits the individual against the forces of social and cultural enlightenment that people might use to decide what they want to know or be or do for themselves. Let me address each of these shortcomings.
First, the focus on the individual is a particularly Western one that presumes “everyone … to be the best judge of his or her own good or interests” (Dahl, 1989, p. 100). In this idealized form, freedom comes from the absence of social relations. This presumption is consistent with a liberal political tradition in which equality is considered to be a private and individual matter focused on removing obstacles to personal realization:
The only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it. Each is the proper guardian of his own health, whether bodily, or mental and spiritual. Mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each to live as seems good to the rest. (Mill, 1859/1974, p. 81)
Mill acknowledges that people live within associations, but his model of freedom requires that these relationships do not interfere with individuals’ opportunities to make the lives that they see as desirable. Not only is a test for democratic autonomy passed at an individual level, but any role played by the collective is presumed to be, at best, an irrelevant distraction and, at worst, a serious impediment to personal liberty.
The liberal, pluralist tradition is principally concerned with ensuring that people have equal opportunities. It sees community and social associations as either tools for helping individuals advance or as sentimental tangents to the core project of individual, democratic liberty (Christians, Glasser, McQuail, Nordenstreng, & White, 2009, pp. 96–99). Whereas John Stuart Mill and Robert A. Dahl see autonomy as an ideal that individuals try to realize in the absence of interference, David Held (2006) agrees that people should be free from the “arbitrary use of political authority” but otherwise sees the idea of a priori personal independence as both theoretically unrealizable and empirically unfounded. Rather than being constrained by outside influences, he argues, personal autonomy always emerges from and depends on social, political, economic, and cultural circumstances. That is, people can achieve freedom through persuasive relationships (D. A. Strauss, 1991), not despite them. Democratic freedom and self-realization come from resisting others and being empowered by them (Rose, 1999, p. 65). The real challenge, Held argues, is for democratic institutions to create the right mix of influence, persuasion, resistance, and empowerment that best enables individual autonomy.
Democratic freedom is thus entangled with institutional design. For Held (2006, p. 263), the capacity “to deliberate, judge, choose and act upon different possible courses of action in private as well as public life” depends on a set of resources—material and symbolic goods that citizens must have access to and be able to use if they are to realize their potentials. Essentially, this model says that individual autonomy comes not only from having the power to realize preexisting preferences free of undue influence (such preferences rarely preexist, and such freedom is practically impossible) but also from being exposed to influences that you neither created nor chose for yourself. Autonomy comes from living within a set of circumstances that make it likely for you to encounter new perspectives that will, ideally, make future preferences richer and more complex.
Only by acknowledging and engaging with these external factors—essentially, being secure enough to learn things that might challenge but ultimately strengthen that security—can people realize self-reflective autonomy (Benn, 1988). Such self-reflexivity means acknowledging that we are
unique individuals, with our own identities created from the way we have taken up the histories, cultural constructs, language, and social relations of hierarchy and subordination, that condition our lives. (I. M. Young, 1997, p. 392)
Ignoring the power of these unavoidable influences means running the risk of becoming someone who is heteronomously autonomous: “dominated by his own prejudices, blinkered by unexamined ideology, or a slave to convention … One looks for the causes of his decisions in the opinions and beliefs of other people which his own merely reflect” (Benn, 1988, pp. 124–125). Someone may seem independent and free of external influences but actually be simply receiving and uncritically recreating a system of values and influences he cannot see or appreciate.1 (For example, this type of illusory autonomy may appear when people supposedly rationally choose a product or service without understanding that their choice has likely been influenced by a system of media advertising, a company’s strategic positioning in relation to competitors, preexisting brand loyalties, or assumptions about what people like them usually buy.)
The underlying ideal here is that autonomy requires both negative and positive freedoms.2 That is, someone has the right to be “left to do or be what he is able to do or be, without interference by other persons,” but to be realized, that right needs “source[s] of control or interference” (Berlin, 1969, pp. 121–122). In other words, to do or be anything that I want, I need people to challenge and support me, to show me ways of being I never would have discovered on my own, to provide insights I cannot create in isolation, and to critique and check the ideas and actions that I think are right. Although this distinction is a powerful and helpful way to understand the dualistic nature of autonomy—as something that involves both the individual and the surrounding environment—it is too simplistic.
Notably, Gerald C. MacCallum Jr. (1967, p. 314) argues that democratic freedom emerges from a triad of relations: “freedom is always of something (an agent or agents), from something, to do, not do, become or not become something.” That is, individual autonomy never exists as an abstract push-pull between constraints and action. Rather, there is a particular person in the middle—someone with myriad identities and relationships to others who reminds us to ask not just “Can people be free?” but “When do particular people have autonomy, and what does their balance of freedom from and freedom to look like?”3 Richard H. Fallon Jr. (1994) similarly distinguishes between ascriptive and descriptive autonomy. Ascriptive autonomy is an ideal that we may strive for but know that we will never realize. This is the “the autonomy we ascribe to ourselves and others as the foundation of a right to make self-regarding decisions … a moral entailment of personhood” (Fallon, 1994, p. 878). Descriptive autonomy, though, refers to people’s “actual condition and signifies the extent to which they are meaningfully ‘self-governed’ in a universe shaped by causal forces” (p. 877). That is, autonomy is not a dualistic concept—a binary ideal of positive and negative freedoms—but rather a “matter of degree” that depends in part on how well someone understands what her relationships to others are, what influences her, and what action might look like in a particular circumstance. In this descriptive, pragmatic model, even “paternalism can sometimes be defended as a means of preserving or promoting autonomy” (Fallon, 1994, p. 877). Limits on fast-food advertising may be needed to curb the addictions of people who may feel like they are making independent eating decisions and who do not understand that their behavior is influenced by powerful advertising messages. Autonomy comes from making tradeoffs that limit some personal freedoms in order to secure broader autonomy and self-realization.
Understanding why such tradeoffs are necessary means accepting that social influences are crucial for realizing freedom, a strange notion in Western contexts that prize individuals’ freedoms from others. This more complex vision of autonomy as a social construct means subjecting yourself and your thinking to others, appreciating that
to be autonomous one must have reasons for acting and be capable of second thoughts in the light of new reasons.… And for reasons one must have a system of beliefs from which action commitments derive and into which new evidence can be assimilated, yielding new commitments. How could anyone come by these bits of basic equipment except by learning them in the first instance from parents, teachers, friends, and colleagues? Someone who had escaped such a socialization process would not be free, unconstrained, able to make anything of himself that he chose; he would be able to make nothing of himself, being hardly a person at all. (Benn, 1988, p. 179)
Stanley I. Benn encourages us not to concentrate on whether people feel like they are free in their decision making (relying on self-reported satisfaction) but instead to examine the social conditions under which they make decisions and ask how meaningfully different their choices are. Testing whether someone can simply choose one option over another is a poor test of their autonomy if the options offered are few or practically identical. Autonomy based on choice is better seen as a probabilistic and pragmatic phenomenon in which someone’s potential to think or act differently depends on their likelihood of encountering a meaningfully diverse set of choices. As Ulrich Beck puts it:
Opportunities, dangers, biographical uncertainties that were earlier predefined within the family association, the village community, or by recourse to the rules of social estates or classes, must now be perceived, interpreted, decided and processed by individuals themselves. The consequences—opportunities and burdens alike—are shifted onto individuals who, naturally, in face of the complexity of social interconnections, are often unable to take the necessary decisions in a properly founded way, by considering interests, morality and consequences. (Beck, 2002, p. 4)
That is, amid forces that privilege and force individualization, if people are to make choices with democratic value, they need supportive social structures that equip them with “full information and under suitable conditions of reflection” (Fiss, 1996, p. 23). My autonomy depends on how well other people articulate ideas and how diverse the resulting “space of possibles” (Bourdieu, 1993, p. 30)—within which I might think and act—is. The power of this space to “surpass the given toward an open future” (de Beauvoir, 1948, p. 91) depends not only on the rational exchange of truth claims in a marketplace of propositions. Rather, it comes from the messier but no less structured “power of redescribing”
the power of language to make new and different things possible and important—an appreciation which becomes possible only when one’s aim becomes an expanding repertoire of alternative descriptions rather than The One Right Description. (Rorty, 1989, pp. 39–40)
Democratic autonomy is thus a communication problem that sits at an intersection of the individual and the collective, the private and the social. At first glance, we might judge personal autonomy simply in terms of what individuals do, but when it is more fully considered, we can see how such actions (and thus autonomy) emerge from “conditions of enactment” (Held, 2006, p. 260)—pragmatic institutional and organizational circumstances that make it likely for people to communicate about, experiment with, and realize versions of themselves that they could not achieve alone. Thus, communication creates the conditions under which individual autonomy can exist; personal freedom is a problem of free speech. But what kind of free speech does such autonomy require, how does this speech differ from unfettered personal expression, and what kinds of institutions might support such freedom?
Free Speech and Democratic Autonomy
If autonomy requires both freedom from unreasonable influence and a duty to engage with others, then we need to ask what kind of institutions help us become autonomous, “socialized individuals” (Benn, 1988, p. 179). The press is one such public-facing institution, but others also sit at this intersection between individual empowerment and socialization. Ideally, public schools “provide every child with an opportunity to choose freely and rationally among the widest range of lives” (Gutmann, 1987, p. 34), museums critically display cultural objects in order to teach visitors about the broader cultural histories that color their private lives (DiMaggio, 1991), and public libraries are civic-minded environments that offer group learning experiences to individuals and opportunities for borrowers to bring bits of curated collections into their private homes (Kerslake & Kinnell, 1998). Each institution helps individuals follow personal interests—people choose courses, select exhibits, borrow books—but they do so within larger traditions of professionalized curation that enable individual autonomy by selecting materials and experiences intended to help people imagine and choose ways of thinking and acting. That is, institutions are not impediments to individual autonomy but, in many circumstances, are vehicles through which people might realize different versions of themselves, which is a core feature of democratic freedom.
But what, exactly, does it mean for institutional circumstances to give rise to the kind of socialized autonomy outlined earlier—the mix of freedom from and freedom to considered essential for creating the space of possibles? Specific to the press, what demands might we make of how it understands free speech to ensure the kind of public communication required for individuals’ democratic autonomy? Recalling the claim made earlier that the press earns its own freedom by helping to ensure the autonomy of its constituents, this question becomes doubly important. These institutional views of free speech are the conditions under which individuals might better achieve freedom, and they also are also a kind of litmus test for the press—a test it must pass if it wishes to enjoy the kind of cultural and constitutional protections that allow it the security it needs to reinvent itself continually. But what kind of role should the press play in free speech in order to engender democratic autonomy?
The relationship between speech and freedom is complex, but fundamentally it is based on the idea that speech is an other-regarding act (Schauer, 1982). Because speech affects others, it must be regulated on what Thomas Scanlon (1972, pp. 204–205) calls “consequentialist” grounds: speech acts are weighed for their ability to produce good and bad outcomes. These effects can be short-term and personal—“saying or printing something untrue (or true) about another person may damage his reputation, humiliate him, invade his privacy, offend him, or cause emotional distress”—or long-term and public—“the disclosure of military secrets, or the spread of lies (or truth) about government may impair the efficiency of the machinery of the state” (Schauer, 1982, p. 10).
In a democratic system, this speech “machinery” is critical for realizing a type of self-government in which individuals knowingly and freely submit to constraints on their freedom. The democratic legitimacy of this submission depends on how consequences have been discussed and debated and therefore on how speech is produced and circulates. As Franklyn S. Haiman (1981, p. 6) describes it, “Social order is a means to maximizing individual liberty and security,” but for this order to function properly, it requires people to engage in “symbolic behavior” in which they express themselves, debate ideas, agree to resolutions, or maintain dissent.
Knowing that speech has both local and global effects (it matters both to individuals and to the autonomy they derive from their relationships to collectives), there are two main ways to think about the relationship between free speech and personal autonomy—an argument from truth and an argument from democracy.
The Argument from Truth
John Stuart Mill asserted that determining the truth requires the expressions of others. He argued that the “peculiar evil of silencing the expression of an opinion” (Mill, 1859/1974, p. 76) harms not only those who hold that view but also those who disagree with it: “If the opinion is right, [individuals] are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error” (p. 76). Furthermore, the truly autonomous individual must be free even to experience harm that might result from encountering false statements; otherwise, he would “have to concede to the state the right to decide that certain views were false and, once it had so decided, to prevent him from hearing them” (Scanlon, 1972, p. 217).
Essentially, if truths are to be discovered and agreed on, they need environments for unrestricted conversation, debate, and claim making. This idea underpins the marketplace model of speech, a laissez-faire approach to speech regulation often embraced by the U.S. Supreme Court. Justice Oliver Wendell Holmes Jr. asserted that “the best test of truth is the power of the thought to get itself accepted in the competition of the market,” and Justice Felix Frankfurter claimed that “the history of civilization is in considerable measure the displacement of error which once held sway as official truth by beliefs which in turn have yielded to other truths” (Schauer, 1982, p. 15). And the U.S. Supreme Court’s ruling in Citizens United v. Federal Election Commission (2009, p. 5) stated that “All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech, and the First Amendment protects the resulting speech.” By finding that “First Amendment protections do not depend on the speaker’s ‘financial ability to engage in public discussion’” (p. 5), the Court simultaneously accepted a marketplace model of speech and made no provisions for the fact that those with considerable resources to make themselves heard (such as corporations that have amassed large amounts of money from an economic marketplace) may drown out the speech of those with fewer resources.
This market-based theory of speech is powerful and ubiquitous, but as C. Edwin Baker (1989, pp. 6–15) shows, it suffers from three main weaknesses. First, adopting the theoretical perspectives of symbolic interactionism and social constructionism (e.g., see Blumer, 1969; Goffman, 1959; Mead, 1934/1967), Baker argues that the marketplace model assumes that all truths are objective and discoverable. It presumes that truths are unique (there is only one), binary (a claim is either true or false), and “out there” (preexisting and waiting to be discovered). The model also fails to explain why some claims may be considered more truthful than others by certain people at certain times. It has little to say about the value of sustained dissents by challengers who contest the truths presented as consensus by those with the power to do so. The marketplace provides no timeline for arriving at truth, no ethical accounting for the harms that people might have to endure as the market discovers truth, and no comment on how claims can be plausible and function as if they were true—not because they have been verified by a disinterested marketplace but because they “help us to get into satisfactory relation with other parts of our experience” (James, 1981, p. 30). Furthermore, a marketplace model erroneously equates freedom of speech with
liberty of the individual, where individual expression is treated like a property, to be defended and protected insofar as and as long as the rights of others are not violated in the process. (Lacey, 2013, p. 169)
Not only does this speech-as-property model focus only on the negative aspects of liberty (equating it with freedom from constraint), but it also ignores what Baker says is the “special nature of media products”—what makes them “not toasters” (Baker, 2002, p. 7). They are, for example, usually nonrivalrous, nonexcludable public goods that can provide significant positive externalities, distributing benefits to multiple people with little or no extra expense, regardless of whether everyone consumes the product (consider the benefits of living in a society where others consume media and gain knowledge, even if you do not).4
Second, he claims that the classic theory assumes that “people’s rational faculties … enable them to sort through the form and frequency of message presentation to evaluate the core truth in the messages” (Baker, 1989, p. 7). The marketplace model assumes that people are already equipped with critical skills and are somehow already capable of stepping outside themselves and their own understanding to evaluate claims independent of their own identities and social positions. Such an assumption begs the question because it does not explain where such skills or capabilities come from. It suggests the preexistence of trusted agents who determine truth on our behalf (Coase, 1974) or some other space separate from a market that provides people with the facilities necessary to participate in markets.
Third, Baker claims that such a marketplace—even if it could exist—is of questionable value because people may not always want to discover a particular truth. A marketplace model does not allow for a kind of freedom not to be, for whatever reason, uninformed. Such ignorance may seem asocial or unethical (indeed, it may operate under different moral standards), but it also may be a strategic avoidance of information for some reasons that is simply differently efficient. (Consider Anthony Downs’s 1957 theory of “rational ignorance” in which voters strategically decide that further enlightenment is not worth the effort.) People may also be guided by “irrational” desires to reach solutions that they do not consider “true” in any strict sense but that satisfice as good enough (Kahneman, 2003; Simon, 1978, 1983) for their particular circumstances.
Essentially, Baker’s critiques undercut the assumption that a marketplace of speech—a lightly regulated space in which the state is mostly silent and takes little or no action to structure the conditions under which individuals encounter new ideas—is the desired ideal for ensuring democratic autonomy. There is a difference between seeing the marketplace as metaphor (an idealized space in which claims are thoughtfully contributed and considered by a wide variety of people equitably searching for plausible, workable, ethical understandings) and the marketplace as a gatekeeper (a structured environment in which speech is commodified and circulated according to dynamics that privilege rationality and speakers who possess the power to foreclose debate and thus make claims function as truths). If you see truth as a social construct reflecting the dynamics of institutions like the press, then a purely marketplace account of speech is inadequate. The failures of the marketplace model suggest a need for some other way of designing free speech—some other set of values that speak to role free speech plays in democracies, not markets.
The Argument from Democracy
The “argument from democracy” (Schauer, 1982, pp. 35–45) is less concerned with the role that free speech plays in discovering truths and more focused on its ability to sustain democracy. There are indeed different types of democracy that require different types of speech (more on this in chapter 3), but as this argument goes, free speech is a fundamental requirement if citizens are to engage in self-government. In the United States, for instance, the Constitution’s main function is to delimit the state’s power over self-organizing individuals, stating how and when the state may constrain individuals’ personal freedoms. For constitutions to legitimately govern citizens, they must “derive their just powers from the consent of the governed” (Meiklejohn, 1948, p. 3), and citizens must have the autonomy and communication required to give such consent. As Alexander Meiklejohn argues, the
First Amendment is not, primarily, a device for the winning of new truth.… It is a device for the sharing of whatever truth has been won.… The primary purpose of the First Amendment is, then, that all the citizens shall, so far as possible, understand the issues which bear upon common life. That is why no idea, no opinion, no doubt, no belief, no counterbelief, no relevant information, may be kept from them. (Meiklejohn, 1948, pp. 88–89)
The argument from democracy is related to the argument from truth, but with a major difference. It says that the value of free speech is its capacity to achieve public ends—to help structure “common life.” That is, free speech is not concerned only with people having the right to speak or individuals discover truths relevant to their private interests. The democratic function of free speech also must be concerned with how speech enables shared conditions and collective self-government—that is, public issues that may not attract private interests or survive marketplace dynamics. As Meiklejohn (1948, p. 25) famously wrote, the First Amendment’s “point of ultimate interest is not the words of the speakers, but the minds of the hearers.… [W]hat is essential is not that everyone shall speak, but that everything worth saying shall be said.”
Although people certainly make individual communication decisions that make informed citizenship possible—for example, by reading newspapers, voting in elections, writing letters to representatives, and arguing ideas with neighbors—Meiklejohn’s concern is more structural and is focused on the conditions that might give rise to legitimate self-government. Put slightly differently by another free-speech scholar concerned with structural aspects of free speech, Owen Fiss claims that the
purpose of free speech is not individual self-actualization, but rather the preservation of democracy, and the right of a people, as a people, to decide what kind of life it wishes to live. Autonomy is protected not because of its intrinsic value, as a Kantian might insist, but rather as a means or instrument of collective self-determination.… The critical assumption in this theory is that the protection of autonomy will produce a public debate that will be “uninhibited, robust, and wide-open.” (Fiss, 1986, pp. 1409–1410)
Such a relationship between self-government and free speech is certainly open to critique. In an article titled “Meiklejohn’s Mistake,” Robert C. Post (1993) argues that Meiklejohn’s “collectivist” vision of free speech is fundamentally misguided because it assumes an end without specifying the means. Meiklejohn’s ideal, Post argues, is a “‘traditional American town meeting’ [that is] ‘not a Hyde Park’ [or a] scene of ‘unregulated talkativeness” (p. 1112). This town meeting model presumes the existence of a common agenda, set of goals, and subservience to the meeting leaders. It fails to say exactly how such an agenda might arise, who would be responsible for deciding whether everything worth being said had been said, and what might become of citizens who either cannot or do not participate in what Post calls the “managerial” structure of a town hall’s authority. Post is right to call out some circularity in Meiklejohn’s reasoning: Meiklejohn’s ideal of self-government relies on the existence of a system of free expression in which there is some kind of shared communication, but it fails to articulate exactly how this communication arises in the first place. Instead, Post argues that we should reject overt attempts by the state to manage public discourse on our behalf because, by doing so, we relieve ourselves of the individual power to influence the conditions of public discourse and the chance to realize the ideal of self-government that Meiklejohn envisions.5 This individual power, Jack M. Balkin claims in a further critique of Meiklejohn, is now with us because Meiklejohn’s broadcast media world is being transformed by
technological changes [that make] it possible for large numbers of people to broadcast and publish to audiences around the world, to be speakers as well as audiences, to be active producers of information content, not just recipients or consumers. (Balkin, 2008, p. 114)
Meiklejohn’s ideal, Post and Balkin claim, comes from outdated media worlds (the town hall and broadcast media) that no longer exist.
Judith Lichtenberg (1987) also critiques Meiklejohn’s ideal but does so from a slightly different perspective. She emphasizes the need for equality among individual speakers rather than their independence from state control, giving three reasons why democratic free speech requires equality of opportunity to speak: “there is no way of telling in advance where a good idea will come from” (systematically and structurally excluding some speakers will prevent quality perspectives from entering into public discourse); “valuable contributions to arriving at the truth come in many forms, speaking the truth being only one of them” (democracies develop through more than the simple exchange of factually truthful or false statements); and “much of the value of a person’s contribution to the ‘marketplace of ideas’ is its role in stimulating others to defend or reformulate or refute” (someone’s mere presence, less than the rational value of their utterances, may surface differences that are critical for realizing autonomy) (Lichtenberg, 1987, p. 338).
Lichtenberg asks the designers and regulators of speech systems to see themselves not only as facilitators of free speech and self-government but as gatekeepers of particular kinds of self-government. She argues that the press, the state, and corporations—as public-facing collectives—enjoy free-speech rights and privileges only insofar as their actions serve to increase both individual opportunities to speak and also the overall diversity and equitability of speech within the public sphere.6 That is, institutional actors like the state and press have both expressive responsibilities (to say some things but not others at certain times) and structural responsibilities to “establish essential preconditions for collective self-governance by making certain that all sides are presented to the public” (Fiss, 1996, p. 18).
Post’s, Balkin’s, Lichtenberg’s, and Fiss’s critiques help to distinguish between normative ideals and empirical conditions. That is, we can still accept Meiklejohn’s primary theoretical aim—a system in which the consent to be governed emerges when citizens knowingly and freely debate the constraints they place on themselves—while accepting Post’s plea to keep dynamic and debatable the conditions of self-expression. Free speech is not an end in itself (a static state of affairs in which expression is managed by any central authority), nor does it adhere to any particular ideology (such as one in which the individual’s freedom to speak is privileged over a collective right to enlightened self-determination). Rather, as Thomas Emerson puts it, free speech can best be thought of as a system of freedom of expression that includes
the right to form and hold beliefs and opinions on any subject, and to communicate ideas, opinions, and information through any medium … the right to remain silent … the right to hear the views of others and to listen to their version of the facts [and] the right to assemble and to form associations, that is, to combine with others in joint expression. (Emerson, 1970, p. 3)
In his later work, Emerson (1981) elaborates on this system by arguing for two types of government activity.7 The first involves promoting the system of freedom of expression—for example, by granting subsidies to electoral candidates without preference; building cultural centers for use by anyone; regulating airwaves to ensure the sustained delivery of all messages; and protecting individuals’ rights to speech on streets, in parks, in open spaces, and on privately owned land that looks and acts like public spaces. The second entails government participating in the system of freedom of expression—for example, when a government official issues information, a state agency makes a report, or a representative delivers a public speech. The only circumstance in which the state might legitimately exercise what Post would call its “managerial” powers occurs when the state is promoting the overall system of freedom of expression, making possible “greater opportunity for expression, increased diversity, or similar improvements in the system” (Emerson, 1981, p. 799). The government, Emerson argues, should always be expressly prohibited from holding an audience captive for communication; communicating covertly or without disclosing itself as the state; mobilizing citizens through grassroots efforts that pit one branch of government against another; and promoting in even an implicitly partisan manner one religion or political candidate over another, especially within institutions like schools and museums designed to educate citizens (pp. 835–848).
Essentially, Emerson changes the focus of free speech from how individuals can speak or pursue private interests to how systems of free speech enable the achievement of public aims. For instance, in his ideal system of freedom of expression, the U.S. Constitution’s First Amendment speech and press clauses (“Congress shall make no law … abridging the freedom of speech, or of the press”) work together to support both individual and collective aspects of democratic autonomy. Taken together, the clauses ensure people’s (mostly) unfettered freedom to express themselves and pursue individual interests, and they expect the press to earn its unique constitutional privileges (it is the only industry explicitly mentioned in the Constitution) by both contributing speech to the system and investing in the circulation of speech with public value.
It is this understanding of the press clause—as a structural, institutional complement to the free-speech clause—to which I now turn, to trace when and why the press has enjoyed and asserted its autonomy, and how such autonomy has been interpreted and limited by the Supreme Court (in both bench opinions and extrajudicial writings).
A Structural View of the Press, Press Freedom, and an Affirmative First Amendment
Equipped with these rationales for free speech—the arguments from truth and democracy and the critiques thereof—we might ask what role the press can or should play in a system of free expression. How can the press be designed and enacted in ways that contribute to both the individual and collective aspects of democratic autonomy? That is, what are differences between the First Amendment’s8 speech clause and press clause, when has the Supreme Court recognized the press and afforded it privileges, and what might these press rights and responsibilities mean for understanding the press’s own freedom?
For most of U.S. constitutional history, the press and speech clauses were used interchangeably and largely without distinction (D. A. Anderson, 1983, 2002). In the 1920s, the Supreme Court began to consider the press as a potentially distinct institutional actor with democratic functions. For instance, the Court heard but mostly rejected the press’s arguments that it should be free to criticize the government and promote dissenting opinions (issuing decisions that largely upheld the Espionage Act of 1917 and the Sedition Act of 1918). It was not until Near v. Minnesota (1931) that the Court overturned a Minnesota state law prohibiting the press from publishing articles critical of police officers, finding that the state’s prior restraint of the newspaper was unconstitutional (Garry, 1994, p. 15). This was an early instance of what would become a small series of Supreme Court cases mostly in the 1960s and 1970s that focused on deciding what, if any, rights or privileges the press should enjoy.9
As these court cases emerged, so did a body of legal scholarship arguing that the First Amendment could best be understood as a structural provision (Fiss, 1996). In addition to being concerned with particular news-gathering practices, this literature is focused on the broader institutional conditions under which citizens express and hear speech. The core idea is that the press and speech clauses ideally work together to create a system of expression that supports democratic aims (Fiss, 1986, p. 1411). Such a system includes both a negative interpretation of the First Amendment that guarantees individuals freedom from illegitimate constraints on their rights to speak and an affirmative interpretation of the First Amendment that ensures a public’s freedom to hear how it is “affected by the indirect consequences … and see to it that their interests are conserved and protected” (Dewey, 1954, p. 16). An affirmative, structural view of the First Amendment calls for the press to be judged according to how well it ensures both individual rights to speak and also public freedoms to hear. It rejects the idea that a disinterested marketplace of ideas alone somehow aggregates private, individual interests into public, collective concerns, making the public a necessary unit of analysis to consider alongside the individual. It asks journalists to care not only about how well they protect their own professional privileges and news-gathering practices but also about how well the press functions as a democratic institution that helps publics hear what they need to hear to achieve autonomy.10
The press (however it might be constitutionally defined at any moment in history)11 is thus an institutional exemplar in a system of free speech designed for public needs.12 Press autonomy might best be understood not by trying to reconstruct constitutional history (discerning what the constitutional framers meant by “the press”)13 but rather by examining the conditions under which the press envisions and serves publics, and therefore how it might legitimately earn its autonomy.
The Institutional Press
The institutional press has never been explicitly or consistently defined in U.S. Supreme Court jurisprudence. The court historically has been reluctant to hear press clause cases, to issue rulings that invoke the press clause, to distinguish journalists or news organization owners from other citizens, or to give them special privileges. To treat the press differently would mean creating a de facto two-tiered Constitution that assigns rights and responsibilities to some but not others—to define journalism.14
Instead, the Court historically has erred on the side of protecting most speech, no matter where it comes from. It limits speech rights on the bases of particular contexts and scenarios, not immutable identities like “journalist” or “not journalist” (D. A. Anderson, 1983; Bezanson, 2012; Schauer, 1998). It generally has done so using two broad logics. First, it has considered whether the speech in question is considered “low-value” (such as types of pornography, sexual and racial harassment, and threats) or “high-value” (such as political speech, deliberative discussions on current issues, and entertainment considered to be of public value). Second, the Court has evaluated whether speech restrictions are
• Content-neutral: Situations in which the “content of the expression is utterly irrelevant to whether the speech is restricted,” (Sunstein, 1994, p. 11) as in a decision to ban all speech on billboards regardless of who purchased the space or what they said;
• Content-based: Limitations that consider the type or category of speech (for example, banning all political speech in a particular area); or
• Viewpoint-based: Restrictions that actively take sides in a debate, limiting the speech of those who disagree with a particular party’s position.
The Court rarely accepts viewpoint-based restrictions, periodically approves content-based restrictions, and has most often accepted content-neutral “time, manner, and place” restrictions that are blind to who the speaker is or what is being said (Sunstein, 1994, pp. 1–23, 167–208).
Within these logics, the Court has readily differentiated among types of speech, distinguishing “incitement from advocacy, commercial speech from noncommercial speech, obscenity from indecency, public interest speech from personal interest speech, public forums from nonpublic forums and from ‘designated’ public forums” (Schauer, 2005, p. 1263). But with the exception of the broadcasting industry, it historically has not explicitly considered a speaker’s institutional membership. Schauer offers three reasons for this reluctance. First, justices aim to make decisions according to legal distinctions rather than social theories:
What distinguishes categories like viewpoint discrimination, content regulation, public forum, and prior restraint from categories like universities, libraries, elections, and the press is that the former exist in the First Amendment but the latter exist in the world. (Schauer, 2005, p. 1265)
Second, courts are traditionally conservative entities focused on maintaining stability and avoiding radical change. And third, if the Court attempts to interpret the identities of institutions too closely, it may weaken the First Amendment, making it a less useful general instrument of law for regulating action across eras and contexts.
However, there is also a danger that institutionally blind decisions create less protection for the kinds of speech that are essential for self-government. If the Court ignores institutional particularities, it may create “institutional compression” (Schauer, 2005, p. 1272), artificially separating speech and speakers from contexts, norms, principles, and incentives of their circumstances. The First Amendment may be less powerful and increasingly irrelevant if the Court is reluctant to enter into the messiness of institutional action. A “Supreme Court [that is] unwilling to distinguish among the lone pamphleteer, the blogger, and the full-time reporter for the New York Times is far less likely to grant special privileges to pamphleteers and bloggers than it is, as it has, to grant privileges to no one” (Schauer, 2005, p. 1272). In the absence of clear distinctions, the Court may simply avoid getting involved for fear of making definitions where none exists.
An institutional middle ground is needed as a way for the Court to anchor its decisions in principles that affirm a broad interpretation of the First Amendment (making room for consistency with both past circumstances and unanticipated contexts) while staying relevant and timely (guiding citizens’ and governments’ expectations about what speech is more or less encouraged and protected). Frederick Schauer sketches such a two-tier system the Court might use to consider the institutional nature of speech:
We first locate some value that the First Amendment treats, or should treat, as particularly important. Then we investigate whether that value is situated significantly within and thus disproportionately served by some existing social institution whose identity and boundaries are at least moderately identifiable. If so, then we might develop a kind of second-order test. If there is a reporter’s privilege, for example, we might ask not whether this exercise of the privilege serves primary First Amendment purposes, but instead simply whether the person claiming the privilege is a reporter. Obviously, defining the category of people who receive the privilege will be based both on the reasons for having the privilege and the reasons for locating it in a particular institution, but the case-by-case inquiry will largely consist of applying the rule, rather than applying the reasons lying behind the rule directly to individual cases. (Schauer, 2005, p. 1275)
Essentially, this model uses constitutional values as intermediaries—proxies that might be used to bridge legal language and particular actors. Given the court’s reluctance to define reporters or distinguish them from bloggers (a largely fruitless exercise that appears periodically in the popular press), Schauer might better replace the word actors with actions. For example, the Court might consider how to connect First Amendment values such as reporting and publishing instead of reporters and publication. Such an action-oriented grounding might prevent the Court from becoming entangled in the subtleties of ever-changing technologies (for example, are bloggers and Twitter users journalists, and if so, how does blogging differ from tweeting?) and allow it instead to focus on practices and standards of reporting that are likely to produce the kind of speech that enables democratic autonomy, bringing these values to bear on particular technological moments.
As Justice Charles Evans Hughes wrote in a 1938 opinion, “The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets.… The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion” (cited in Horwitz, 2006, p. 45). The question now is twofold: how might the Court continue to recognize the multiple ways in which speech is produced and disseminated, and how might the Court depart from considering particular forms of publication (blogs versus newspapers versus pamphlets) and instead establish standards for evaluating the democratic value of institutionally produced free speech? Answers to these questions might be found in a review of select Supreme Court cases that have—usually without mentioning the press clause—identified what it considers to be valuable roles for the press to play in democratic life, creating what Randall P. Bezanson (1999) calls a “developing law of editorial judgment.”
The aim here is not to create a First Amendment that is too unpredictable for any one person or institution to expect its protections. An unstable First Amendment is as useless as an antiquated one. Rather, the goal here is to describe how the Court might pay attention to the contingent, empirical, and institutional conditions under which contemporary speech is produced—to move toward an institutional view of the press that ensures freedom from and freedom to. If democratic autonomy is a question of institutional design, we need to interrogate the conditions under which the institutional press is allowed or required to circulate speech.
U.S. Supreme Court Press Decisions
Although the U.S. Supreme Court has never formally defined the press or based a decision exclusively on the press clause (D. A. Anderson, 1983; Bollinger, 2010), it has, at various times and for different reasons, assumed that something called the press exists, that its existence serves constitutional purposes, and that the state has an obligation to protect the press’s First Amendment freedoms:15
A prime example is the Supreme Court’s 1945 Associated Press [v. United States] case, in which the AP argued for antitrust exemptions based on its First Amendment rights. The Court dismissed this argument, stating that the First Amendment “rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.” Since “freedom to publish means freedom for all and not for some,” state-guaranteed public-interest press protections were legitimate: “It would be strange indeed … if the grave concern for freedom of the press which prompted adoption of the First Amendment should be read as a command that the government was without power to protect that freedom.” (Pickard, 2015, n.p.)16
Although not part of a Supreme Court decision, one of the most famous statements by a justice on the press comes from Justice Potter Stewart. In a 1974 address at Yale Law School, in the wake of the Watergate scandal and amid popular celebration about the press’s role as an investigative watchdog,17 Stewart (1975, p. 633) argued that “the Free Press guarantee is, in essence, a structural provision of the Constitution.” Without such an institutional guarantee, he argued, the press could fall prey to one of two powerful forces—market forces that erroneously purport to create a “neutral forum for debate” (p. 634) and government forces that could require the media to “promote contemporary government policy or current notions of social justice” (p. 636). Although he expressed his opinions in a speech and not a ruling, Stewart’s speech18 suggests a need to look more closely at Supreme Court decisions, examining them for clues as to how courts might think about the press as a distinct institution with a constitutional role. Such clues can help address two of this book’s concerns: what democratic role might the press play, and how might the press be defined?
If the Court recognizes press clause privileges distinct from those guaranteed by the speech clause, it runs the risk of creating a two-tiered First Amendment in which not all clauses apply equally to all people.19 This was the question that Chief Justice Warren E. Burger had in mind when he wrote that “the very task of including some entities within the ‘institutional press’ while excluding others … is reminiscent of the abhorred [press] licensing system,” which “the First Amendment was intended to ban” (cited in Bollinger 2010, p. 10).
The modern Court’s case law is concisely and thoughtfully summarized by Bollinger (1991, 2010), and it is his typology that I adopt here.20 He identifies three broad ways of understanding the Supreme Court cases on the press clause—protecting publics against censorship, providing access to information, and regulating press structures in public interests. By offering this typology, I do not argue that the Court defines the press in these terms, that the Court should define the press these ways, or even that the Court is consistent in its reasoning (as several cases show). Rather, these are cases to think with—ways of seeing the constitutionality of an institutional press and starting points for debating the roles that the press might play in ensuring the pursuit of democratic autonomy.
Protecting Publics against Censorship
One set of cases focuses on ensuring that news organizations are not prevented from publishing (ensuring that they do not suffer what legal theory calls prior restraint). In New York Times Co. v. Sullivan (1964), the Court held—in an opinion by Justice Brennan a year before his speech supporting Meiklejohn’s view of the First Amendment—that although Sullivan’s personal reputation may have been damaged by a critical, error-filled advertisement run by Times, Sullivan was a public official who had voluntarily entered the public sphere, so the public had an overriding right to hear such criticisms. Unless a news organization publishes “defamatory falsehoods knowingly or in reckless disregard for the truth” (Bollinger, 1991, p. 8), public officials—and later, unelected public figures (Gertz v. Robert Welch Inc., 1974)—enjoyed fewer protections against libel than other citizens. False statements, the Court ruled, “must be protected if the freedoms of expression are to have the breathing space that they need to survive” (Bollinger, 2010, p. 16), and the press is “entitled to act on the assumption that public officials and public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehoods concerning them” (p. 18). Essentially, the press—acting in its role as a producer and distributor of potentially valuable public information—could privilege the public right to hear information about public officials over any concerns about libel.
In Florida Star v. B.J.F. (1989, p. 491), the Court similarly ruled that “If a newspaper lawfully obtains truthful information about a matter of public significance, then state officials may not constitutionally punish publication of the information.” Two elements of this ruling are important to note in order to understand the press as a public service institution. First, although it failed to define the term, the Court granted a newspaper (not any other organization, medium, or individual) the right to publish. Second, the Court recognized that there are issues of public significance separate from the state’s interests and that newspapers are thought to know the difference. The Court was essentially using similar logic as it had in the Pentagon Papers case (New York Times Co. v. United States, 1971) when it found that the federal government could not prevent the New York Times and Washington Post from publishing a classified Department of Defense report. The public’s interest in knowing what the newspapers thought it should know overruled the government’s interest in protecting what it considered to be state secrets.
Finally, in Nebraska Press Association v. Stuart (1976), the Court overruled a lower court’s ban on allowing journalists to report a court case, ruling that part of what makes a trial fair is the public scrutiny provided by the press.21 That is, if, on the public’s behalf, a court is trying someone for committing a crime, the public—with the press as its proxy22—has a right to hear how justice is being administered. Although this ruling, like the others, does not define the press (nor does it ground its finding in the press clause), it effectively finds that something called the press can oversee the administration of justice and contradict the state’s conceptions of public interest, ensuring what Vincent Blasi (1977) calls the “checking value” of the First Amendment. By reading the Constitution in a way that gives the press these publication rights, the Court aims to guard against the kind of structural, institutional censorship that prevents individuals from realizing their autonomy and from democratically self-governing.
Regulating Access to Information
As evidence that Supreme Court press law is more a collection of seemingly disjointed opinions than a coherent body of law, the Court assumes that the press will protect citizens against the forces of censorship, but it gives the press few special privileges with which to seek out information.23 For example, although some state laws shield reporters from being compelled to testify in court,24 in Branzburg v. Hayes (1972),25 the Court ruled that reporters have no federal “constitutional right not to reveal the identities of their sources in grand jury or other criminal proceedings” (Bollinger, 2010, p. 25). Reporters counter by arguing that they need a shield from compelled testimony to prevent two kinds of speech chilling. First, they claim that because the stories with the most potential public value are usually sensitive and confidential and likely to attract litigation (R. E. Anderson, 1973), if editors and reporters knew that they could be subpoenaed, they would self-censor, pursuing fewer controversial topics and fewer enlightening sources. Second, if sources knew that their conversations with reporters were potentially matters of the public record, they would be far less willing to reveal information that might be of critical interest to the public (Murasky, 1974, pp. 851–862). Finally, reporters claim that they are most often called to testify in cases when the government wants to know the identities of suspected criminals, effectively deputizing reporters and making them agents of the state against their will (Guest & Stanzler, 1969).26
Two years later, in Pell v. Procunier (1974) and Saxbe v. Washington Post Co. (1974), the Court similarly found that reporters had no special right to interview prisoners who journalists thought may be being mistreated, failing to find that “the Constitution imposes upon government the affirmative duty to make available to journalists sources of information not available to members of the public generally” (Pell, p. 834). In both cases, the Court declines to define the press, but a weak definition can be reverse-engineered from comparing its rulings in these cases. In contrast to its earlier opinions that valued press oversight of criminal trials, in Pell and Saxbe, the Court decided that, whatever the press means, it has no legitimate public interest in telling the stories of posttrial inmates. Only during a trial does the press fulfill a public service by providing oversight of the judiciary. If the press is defined in terms of its interest in using particular inmates as sources in stories about incarceration, the state’s interest in administering prisons—specifically its desire to avoid giving individual inmates the ability to increase their notoriety through press interviews—will prevail, and the press will have no special rights.27
Regulating Press Structures in Public Interests
Finally, in a series of decisions, the Court gave some constitutional rationales for prior restraint on news gathering and also for public interest in the press’s institutional structures.28 The trend began with the Communications Act (1934), which allowed the government to “take and to keep control over channels of ‘radio transmission’; and to provide for the use of such channels, but not the ownership thereof, by persons for limited periods of time” (Bollinger, 2010, p. 29). Essentially, the state asserted its right to manage the technical systems of mass communication, recognizing that it needed to ensure, on the public’s behalf, that the means of speaking and hearing opinions were structured in the public’s interest.
The underlying logic of this act—a “fairness doctrine” that aimed to provide equal speaking time and reasonable access to airwaves for public office candidates—was first put to the test in the landmark case Red Lion Broadcasting Co. v. FCC (1969). In this case, the Court affirmed the fairness doctrine, finding that because radio and television spectra are limited and of great public value, the government has a constitutional interest in protecting their allocation and administration on the public’s behalf. The Court thus waded into the empirical, structural conditions under which the press speaks and publics hear, finding that a “marginal interference” with broadcasters’ free-speech rights “is justified when empirically calculated against the rights of the audience” (Streeter, 1996, p. 130). The ruling is significant because it suggests that a public right to hear exists—that “what is ‘crucial’ in this environment is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences” (Red Lion, p. 390). The Court has never more clearly suggested that a public right to hear exists, that the press has a role in securing it, and that the public’s interests in “ideas and experiences” can override a private broadcaster’s interests.
The Court’s affirmative interpretation of the First Amendment—recognizing not only an individual’s freedom from censorship but also a public freedom to hear—was short-lived, though. Five years later, in Miami Herald Publishing Co. v. Tornillo (1974), the Court found that no “right of reply” existed in newspapers and that editors and newspaper owners were free to decide what they would print in their publications. Essentially, Miami stopped in its tracks the Red Lion finding that press had a constitutional role in ensuring a public right to hear, a logic that tentatively emerged in Near v. Minnesota (1931) and matured in New York Times v. Sullivan (1964). The affirmative interpretation of the First Amendment apparently applied only to media that had limited spectra, and the fairness doctrine was not a philosophical critique of laissez-faire corporate liberalism or an embrace of the press’s institutional role guaranteeing a public right to hear but instead was a technology-specific policy “useful for maintaining smooth relations between corporations and the consuming public” (Streeter, 1996, p. 195).
The Court confirmed this rejection of Red Lion in a series of cases. In Columbia Broadcasting System v. Democratic National Committee (1981), the Court found that a private broadcaster had no obligation to air a public-interest advertisement. Such an ad could be refused “for purely business reasons” (Fiss, 1996, p. 61). And in Turner Broadcasting System v. Federal Communications Commission (1994), the Court found that since cable technology offered virtually limitless bandwidth (technical infrastructures again trumped public interests), the government could not compel cable providers to carry channels. The only potential weakness of the cable industry, Justice Anthony Kennedy suggested, was its creation of economic monopolies that might interfere with free-speech markets. But the risk of market failure was considered an insufficient reason to regulate, essentially ending any hope that Red Lion’s affirmative interpretation of the First Amendment might translate into technologies other than television (Bollinger, 2010, p. 38).
The Court further confirmed this logic in Reno v. American Civil Liberties Union (1997), when it struck down parts of the Communications Decency Act (1996) that attempted to ban indecent material on the Internet. It ruled that because the Internet “provides relatively unlimited, low-cost capacity for communication of all kinds,” no spectrum-scarcity rationale applies and that because the medium was not considered “invasive,” people were free not to expose themselves to Internet content. Although it is certainly true that technological scarcity makes little sense in relation to the Internet, especially in light of research on the harms of multitasking and information overload (Ophir, Nass, & Wagner, 2009) and the fragmentation of online attention (Goldhaber, 1997; Terranova, 2012; Webster & Ksiaze, 2012; Wu, 2016), it is still difficult to classify people into publics in online environments. That is, although there may be no longer be a purely technological rationale for regulating spectrum, there remains a clear public interest in structuring the social and technological conditions (such as search engine rankings, newsfeed algorithms, and content moderation systems) that lead people to the “ideas and experiences” (as the Court wrote in Red Lion) that are critical for public life, self-government, and democratic autonomy.
Another structural element of the press’s public role is how much the government funds broadcasters and whether such funding carries public obligations. In Federal Communications Commission v. League of Women Voters (1984), the Court found unconstitutional the part of the Public Broadcasting Act (1967) that prohibited publicly funded stations from editorializing. It ruled that broadcasters—regardless of their funding sources—could not be prohibited from “speaking out on public issues” because to do so would be a “substantial abridgement of important journalistic freedoms which the First Amendment protects” (FCC, p. 402). Again, we see the Court—without explicitly invoking the press clause or defining the press—implying that press freedom (in this case, news organizations’ rights to interpret and not only report on public issues) is linked to a public’s right to hear. Instead of supposing that publicly funded media might reflect the viewpoints of their state financers, the Court assumed that there was some kind of professionally monitored journalistic buffer between a news organization’s financial and editorial interests, trusting editors to represent public concerns regardless of who paid them. The Court reaffirmed this finding in Legal Services Corp. v. Velazquez (2001), when it found that “prohibitions against editorializing by public radio networks were an impermissible restriction” (p. 543) and in Arkansas Educational Television Commission v. Forbes (1998, p. 673) when it ruled that “Public and private broadcasters alike are not only permitted, but indeed required, to exercise substantial editorial discretion in the selection and presentation of their programming.” Again, editorializing and editorial discretion are never defined, although the Court finds them somehow integral to the press’s First Amendment roles.
Across court decisions about journalism and the press (at both federal and state levels), there is less of a canon that defines the press or the press clause and instead more of a “developing law of editorial judgment” Bezanson (1999, p. 754) on:
• The subjective intent of editors (for example, whether news organizations are guilty of libel),
• The effect of a news organization’s decision to publish (such as whether there seems to be a public interest in a particular story),
• The fact versus opinion nature of a story (for example, privileging stories that contain verifiable, truth-oriented reporting over subjective, opinion-based commentary),
• The accuracy of a story (such as favoring stories that later prove to be true versus those found to have factual errors), and
• How journalists prepared a story (for example, looking positively on publishing decisions that show rigorous editorial thoughtfulness).
Considered alongside the typology of Supreme Court cases, it can be seen that, even in the absence of clear definitions, legal thinking about press freedom often assumes public interests—structural and institutional contributions the press might make to civic life. Although there are certainly inconsistencies and dropped logics (the fairness doctrine and Red Lion logic have largely fallen out of favor), the courts still leave open the idea that it matters more what the press does than what it is—a vision of the press and its freedoms as dynamic and contingent that is explored further in the following chapters.
The Democratic Value of Listening
I have argued that democratic autonomy requires not only that individuals are free to speak but that collectives have freedom to speech. Although the former is a key dimension of how freedom is usually thought of in the United States (as an individual possession akin to a property right), the latter is better seen as a public right to hear that the press can help to realize—indeed, that it should help to guarantee if it is legitimately to claim its constitutional protections as a democratic institution of public communication and not simply a private broker of individual information. But what, exactly, is the democratic value of listening? What is this activity that the press should guarantee, what role does it play in civic life, and why is it crucial to a normative defense of contemporary, networked news production?
The simplest but most fundamental point to make about listening is that it is both a necessary and sufficient form of democratic participation. Democracies need people who listen; “just listening” is a fully legitimate way of belonging to a public sphere. Although listening “tends to be taken for granted [as] a natural mode of reception that is more passive than active” (Lacey, 2013, p. 163), listening can be a political act. When you listen, you acknowledge the existence of others by literally giving them your attention—by “ceding the possibility of control” and the “quest for certainty” (Bickford, 1996, p. 5) and entering into a collective phenomenon that shows us how we are simultaneously individuals and members of societies. As Hannah Arendt (1958, p. 50) writes, the “presence of others who see what we see and hear what we hear assures us of the reality of the world and ourselves.” Ideally, listening means temporarily suspending the pursuit of personal preferences and allowing the possibility of outcomes that come from others (Bickford, 1996, pp. 1–6) as you empathize with people and imagine what it might be like to adopt or help realize their preferences (Belman, 1977; Husband, 2009; Lipari, 2010). This kind of generous and thoughtful listening can help people engage with the sources of difference that Iris Marion Young (1997) says create us—the influences that we ignore at the risk of failing to achieve the kind of self-reflexive autonomy that makes us freer than simply being allowed to speak.
Listening is thus both a “private experience and a public activity” (Lacey, 2013, p. 17). Although individuals certainly interpret speech through the lenses of their personal identities and experiences, they often do so as part of a collective: “They become an aggregate entity—an audience—and whether or not they all agree with or like what they hear, they are unified around that common experience” (Douglas, 2004, p. 29).29 A common listening experience creates the possibility for shared consequences. When individuals listen to the same perspectives on a common topic, through the same medium, and perhaps even at the same time, they are brought into existence as a public (Dobson, 2014; Evans, 2001). They are a public convened by their active attention to speech and “their awareness of absent others” (Lacey, 2006, p. 74). If Facebook reconstituted itself as a place for listening publics, it would not prioritize sorting people according to individually satisfying and commercially profitable information preferences; it would acknowledge and take normative responsibility for what its audiences are able to hear and what kind of publics such hearing creates. Such recognition and accountability would appear not only in the design of its algorithms and advertising markets but also in its relationships with news organizations and other social media platforms. This would mean acknowledging that it is more than a technology company that organizes the speech of others30 and that it is a media organization with interests and values, speaking through curation—a dominant powerhouse creating conditions under which people hear and, thus, listening publics. What kind of publics people can become depends on how they listen—how they adopt or reject the speaker’s views, share the speaker’s interpretation of the world, and create consensus or splinter into dissenting subgroups with alternate interpretations. These public dynamics are visible only if we see listening to be just as critical as speaking.
Rather than seeing listening as a “preparatory stage” (Lacey, 2013, p. 16) for creating a public—where the goal is to convert listeners into speakers—we might instead see listening as participation in its own right, part of a “difficult and disciplined civic duty” to engage meaningfully with “opinions that contradict, challenge, test one’s own opinion” (Lacey, 2013, p. 167). Indeed, the phrase “listening in” is used by educational researchers to describe “intent participation”—what can happen in learning environments that value “observation as an aspect of participation” (Rogoff, Paradise, Arauz, Correa-Chavez, & Angelillo, 2003).
Listening reminds us that democratic autonomy cannot come only from speech marketplaces that prohibit illegitimate restrictions on individual expression. Listening and autonomy are collective phenomena that require rejecting the idea that an individual freedom to speak automatically creates a collective freedom to speech.
There is thus a “second-order value of voice” that listening helps us realize. It is a way to see how “our stories [are] endlessly entangled in each others’ stories,” beyond a neoliberal model that “reduces politics to market functioning” (Couldry, 2009, p. 580). Understanding the democratic value of this kind of listening means studying how individuals encounter individuals through speech markets—a problematic reification of face-to-face dialogue as the ultimate form of democratic engagement (J. D. Peters, 2006; Schudson, 1997). And it also means studying how they understand the “conventions, institutions and privileges which shape who and what can be heard in the media” (Dreher, 2009, p. 445)—from tracing which stories institutions like the press tell and which entanglements they articulate.
There are at least two ways in which institutions can function as listening structures. The first, sketched above, highlights institutions’ capacity to bring us information and interpretations we might not have encountered on our own—to listen for us and then orient our attention to experiences and ideas we probably would not have chosen for ourselves.31 The second focuses on how institutions can give us freedom from certain kinds of speech, creating pauses for meaningful silences. Rather than being evidence of consensus, disinterest, antisocial lurking, failed participation, the nonuse of media technologies,32 or dysfunctional speech markets, silence might be heard as a thoughtful absence of speech (Ananny, 2017) and even a way of exercising the freedom to not use language that may have oppressive connotations. As Wendy Brown (1998) argues, sometimes silence is preferable because it creates ambiguities that can resist oppressive speech. It can create pauses to reflect on and integrate what has been heard. Silence is “what allows speech to take place. It endows speech with the capacity to bear meaning” (Pinchevski, 2001, p. 74) and helps to create an “inner life”—somewhere between complete isolation and constant noise where one might “explore unpublic feelings in something other than solitude” (Nagel, 1998, p. 20). For silences to serve public functions, they must be publicly motivated absences of speech. They cannot result from people being barred from speaking or from people being compelled to listen or join forums against their will or under illegitimate terms (C. M. Corbin, 2009). Silences that come from censorship and coercion must be distinguished from those that come from participating by listening.
The press, for example, might not listen to audiences simply in order to discern their preferences (Crawford, 2009; O’Donnell, 2009; Willey, 1998), give them more information of a particular type, provide forums that work for certain debates, or disseminate information as quickly as possible.33 It also might create spaces and rhythms that give publics time to listen to what they hear. By making listening and silence part of journalistic ethics (S. J. A. Ward & Wasserman, 2015), the press could provide the “proper distances” that Roger Silverstone (2003, p. 477) says give people time and space to consider “differences between neighbors and strangers.”
The public right to hear is not in opposition to an individual right to speak, nor is it about an individual’s right to gain access to speech. Rather, its focus is the public. I argue not that individuals need to say or hear particular things but rather that people can more fully understand themselves as collectives with intertwined dependencies if they live in societies not just where people say things but where people say things that they can hear. A public right to hear is a kind of group metaright (Garden, 2014)—a collective right that individual self-governance requires.
Positive freedom is not only having the courage to say things that liberate yourself and others (Hansen, 2014), but it is about living within social structures that make hearing such things possible and likely. Yes, it is essential that journalists are able to observe, to gain access to people and information, and to publish as they see fit. But for all this speaking to add up to democratic self-governance, it needs to rest on something other than faith in the eventual success of a marketplace of speech. When we shift our focus away from individual rights and the image of press freedom as journalists’ right to report and publish, we start to see how we might also demand that “journalists should facilitate an awareness of which voices are not heard” (Hansen, 2013, p. 678) and see themselves as part of an institution that creates the conditions for speaking and hearing. Such a conceptual move may help us distinguish among legal rights to receive information, social contexts in which to hear information, epistemological conditions through which to understand information, and material forces that help people act on information. If, as John Dewey (1954) argues, publics are formed by realizing inextricably shared consequences—social conditions that individuals cannot extract themselves from—then they need more than just marketplaces of speech that may or may not surface consequences. They also need institutional conditions that help them hear potential consequences that they can talk about, share together, and act on.
Conclusion
I have tried to give normative and institutional shape to the idea of democratic autonomy and the press’s role in securing it. I attempt to show how the idea of democratic autonomy depends on both separation from others (negative, freedom-from liberties) and reliance on them (positive, freedom-to liberties) and how such dynamics relate to the free production and circulation of free speech. Part of ensuring these dynamics involves creating public institutions that assume structural responsibility for free speech—for speaking and listening. The press is one such institution. Regardless of how we might define the press (the courts offer some hints but little clarity), one way to defend the legitimacy of its constitutional protections is to ask how it ensures a public right to hear—how it helps to create what Kate Lacey (2013) calls “listening publics” who can imagine and work to realize possible futures that exist outside themselves. The press might be held accountable, in part, for its capacity to create publics that both speak and listen.
An autonomous press is a kind of interstitial, institutional glue that works across multiple levels. It enables an individual’s autonomy by ensuring that she hears everything she needs to realize her personal autonomy, it understands and depends on social relations to ensure that it presents individuals with truly diverse options, and it uses law, culture, and technology to distinguish and protect itself sufficiently well from other types of institutions so that it can do the work it needs to do to help democracies realize autonomy.
Most essentially, for the press to explain what kind of autonomy it wants and deserves, it needs to explain how its separations and dependencies help realize a public right to hear and how its autonomy both requires and involves balancing such distances. In the next chapter, I revisit some of the modern history of U.S. press freedom to show how—despite the assumption that journalists are most free when they pursue their own visions of the public independent of nonjournalists—the press has always negotiated its autonomy through a system of separations and dependencies.
Notes