Free Speech Architecture: Access for Diverse & Antagonistic Sources (#5)

Cross posted from Marvin Ammori's post at Concurring Opinions.

In the previous posts, I argued that First Amendment precedent guarantees minimal access to certain essential speech spaces (like streets and parks) and permits government to pass laws opening additional spaces (from designated public forums to shopping malls to digital spaces). But Supreme Court decisions historically endorse access not merely for a few, homogenous voices. The Court has repeatedly recognized that the First Amendment’s “basic tenet” is that “the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.”

Following that basic tenet, courts generally do not require government to “stay out” of speech. Rather, courts permit government to pursue the substantive speech goal of promoting diverse sources on physical and virtual spaces opened for speech. In practice, since the nation’s founding, legislative policies have been important to ensuring that Americans have been exposed to diverse speech sources.

The courts have endorsed several categories of laws furthering this principle. First, we can look at the discretionary access rules, mentioned in the last post. These rules promote more speech, and more diverse speech. The postal access rule for carrying newspapers promoted access for users of more distinct newspapers; common carriage rules ensure more speakers can speak through the phone systems; access rules for both cable and broadcast encourage diverse sources.

Second, the courts have generally upheld legislatively imposed media ownership limits. These rules rest on the assumption that each owner is a distinct “speaker,” and that Americans should have access to many diverse and antagonistic speakers. The list of media ownership limits is long. There are limits on how many broadcast TV and radio stations that one person can own locally or nationally, and also there have been limits on co-ownership of broadcast stations and newspapers, cable systems, or phone systems. Companies often challenge these rules, claiming that they limit a speaker’s voice—no less than limiting the number of pamphlets someone could publish and distribute. They would violate the negative-liberty model’s emphasis on government nonintervention in speech, as government intervenes to pursue substantive goals. Despite legal challenges, courts, including the Supreme Court, have generally upheld ownership limits.

Third, the judicial requirements of content- and viewpoint neutrality in mandatory public forums guarantees at least the opportunity for diverse sources to speak, to the extent necessary to ensure that unpopular speakers are not suppressed. This nondiscrimination policy cuts across traditional, designated, and limited public forums, as well as access rules for private physical and virtual spaces. While these policies limit government’s powers, it reflects a judicial decision that government may promote speech spaces but cannot favor particular messages or viewpoints.

While the Supreme Court has repeatedly held 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,” the Court has understood that government policy can and has helped further this goal. Government policy remains important today—particularly as today’s dominant speech spaces are virtual spaces on privately owned infrastructure. It is government policy in designing these speech spaces that may be the most important First Amendment policies of our time, something Jack Balkin and others have observed. Negative liberty alone will not ensure citizens’ access to diverse and antagonistic sources.

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