Cross posted from Marvin Ammori's post at Concurring Opinions.
At our nation’s founding, the framers of the Constitution faced a formidable challenge: creating a national democracy that would bind together thirteen diverse and autonomous states spread over a large geographical area. In 1787, the only successful historical models of democratic governance were small, tightly knit units, such as the ancient Greek city-states. No nation had ever succeeded in maintaining a democracy on such large and disparate turf as the thirteen colonies. James Madison argued that size actually favored democracies, as large countries were less likely to fall subject to “faction.” Federalism was another important answer to the question. But a less heralded answer was aggressive pursuit of promoting a national identity and national unity, while still preserving the independent, unencumbered character of local spaces. Ensuring both national unity and local forums would pose a challenge.
But early American leaders did not rely merely on an “unregulated” speech market and negative liberty.
Rather, American leaders established speech policies that consciously furthered two distinct purposes: the promotion of some speech virtual speech spaces to unify the nation and the promotion of others to preserve local communities. These affirmative goals illustrate the fourth principle evident in precedent, a principle that has been almost completely overlooked in First Amendment literature.
As discussed in earlier posts, a critical medium of public discourse in early America was the newspaper, and newspapers relied on the postal system for distribution. To promote national unity, Congress subsidized the cost for newspaper editors to mail their papers to other editors in different states. This policy encouraged local papers across the nation to include news from distant areas of the nation. The outcome of this “free exchange” was that readers would be informed about national affairs, not just local community news. In addition, the government’s heavy investment in a vast network of postal roads ensured that citizens in even the most remote areas of the nation had access to this shared, national journalism.
In tandem with these nation-unifying speech policies, early policymakers also enacted rules consciously to ensure local forums for speech. Congress provided inexpensive or free mailing rates newspapers within a local region, providing a huge price advantage for local newspapers over national papers. As a result, local papers flourished, and did not have to compete in on a level playing field with big city papers from New York and elsewhere. These rates were based on conscious speech policy, not a relation to postal costs. (Paul Starr, Richard Keilbowicz, Ed Baker and others have written important work about postal policy and media generally.)
More recently, rules for television broadcasters illustrate similar governmental policies to encourage spaces for local discourse in response to a market that would “naturally” tend towards national discourse. The government assigned broadcast television licenses to ensure that even small communities have at least one local news outlet. Further, the FCC long encouraged local news coverage through various rules and requiring cable companies to carry local broadcast television stations. Similarly, the FCC divided its AM radio licenses in order to guarantee a certain number of stations serving local, regional, and national markets, ensuring national and local forums. Telephone laws, including complex subsidy systems, have encouraged community cohesion by setting very low prices for local calls and subsidizing them with far more expensive long distance rates, even though long distance calls do not have much higher marginal costs.
None of these policies seem especially controversial, and they have received little attention in First Amendment scholarship. These policies are, however, highly substantive and value-laden. They represent active government involvement in speech decisions, and, more than that, they represent government’s use of affirmative policies to shape the structure of American discourse – with an eye toward fostering the very structure of our democracy.