Setting the Wayback Machine to 1995: "Cheap Speech and What It Will Do": A Possible Dark Side

[This is an excerpt from my 1995 Yale Law Journal article "Cheap Speech and What It Will Do," written for a symposium called "Emerging Media Technology and the First Amendment.) Thirty years later, I thought I'd serialize the piece here, to see what I may have gotten right—and what I got wrong. Here is the final section.]

[S]ome of the other [First Amendment] assumptions that the new technologies will upset may lead to more trouble. Missouri Knights of the KKK v. Kansas City  tells a cautionary tale. In exchange for giving a franchise to a cable company, Kansas City demanded that the company provide a public-access channel. Everything went well until the Ku Klux Klan decided to put on its own show, which offended the city government so much that it authorized the cable system to shut the entire channel down.

A court ultimately overturned the city's action on First Amendment grounds, but the story shows what can happen when the assumptions underlying certain rules are changed. The city's willingness to provide a forum for the little guy, it turned out, was based (perhaps unconsciously) on the supposition that the little guys would either provide a public service or at worst be harmless eccentrics. When the assumption proved false, the consensus behind the rule evaporated.

As the new media arrive, they may likewise cause some popular sentiment for changes in the doctrine. Today, for instance, the First Amendment rules that give broad protection to extremist speakers—Klansmen, Communists, and the like—are relatively low-cost, because these groups are politically rather insignificant. Even without government regulation, they are in large measure silenced by lack of funds and by the disapproval of the media establishment. What will happen when the KKK becomes able to conveniently send its views to hundreds of thousands of supporters throughout the country, or create its own TV show that can be ordered from any infobahn-connected household?

Likewise, the broad protection for false speech  evolved in a time when the main suppliers of news and opinion were large, ostensibly nonpartisan, media organizations. Obviously these broadcasters and publishers weren't entirely reliable—they still lost some libel lawsuits even after New York Times v. Sullivan—but they were the sort of speakers that people could feel relatively comfortable with.

But with the emergence of talk radio as a powerful force, some have begun to grouse. Consider, for instance, a recent speech to the National Association of Broadcasters by FCC Chairman Reed Hundt, whose Commission decides whether to renew the broadcasters' licenses. Chairman Hundt, focusing specifically on talk radio, "urged station owners and management to … emphasiz[e] accuracy and truth over a quest for ratings and advertising dollars."  "As a society," the chairman said, "we need solutions to public disinformation and misinformation, but solutions that don't involve governmental intrusion and yet don't leave us callously indifferent to truth or falsity."  While this isn't yet a call for greater regulation-the chairman specifically "stressed that the FCC should not be the judge of content or quality in radio's public discourses" -it shows the sort of concern that may be a harbinger of future regulatory proposals.

Finally, current First Amendment law developed in a time when the public got its news and opinion from sources that provided a relatively broad mix of topics and viewpoints. Someone buying a newspaper or watching the nightly news would see a variety of stories, stories that professional editors thought fairly covered the most important issues facing the nation. And these stories would be a common base that people would be able to talk about with their acquaintances. The media, of course, were often criticized for falling down on the job, by covering fluff instead of the really important issues.  But these criticisms only help show that people do think it's the media's job to give the public a trustworthy mix of the truly important news of the day.

As listeners get more control over the topics and viewpoints they see, they may choose to focus on a much narrower mix of information. They may subscribe only to articles on topics in which they're interested, or to commentators with whose opinions they already agree. They may consciously choose fluff—more easily than they can today—over serious news.

Listeners will no longer be a captive audience to the selection that the intermediaries—publishers and broadcasters—want to feed them. Will listeners do a better job of informing themselves than the intermediaries have been doing? When the media aren't there to help set a national agenda, or to give people a common base of information to argue from, will people be able to deliberate together? I think the answer to both questions is yes, but others, including many in the audience when I presented this paper at the Symposium, disagree.

In my view, none of these changes, significant as they may be, should cause us to reconsider the basics of First Amendment law. The dangers of extremists with access to the media, of falsehoods with an audience in the millions, and of an ill-informed electorate are quite real; but the dangers of content regulation, it seems to me, are greater. And the dangers of regulation are exacerbated by the difficulty of doing anything about the most significant problems (here, the possibility that people will choose to watch or read infotainment instead of the important news of the day seems particularly intractable). Finally, the criticisms by Dean Thomas G. Krattenmaker and Professor L.A. Powe of the FCC's attempts at content regulation seem to me hard to answer.

Still, the media will change, and change dramatically. As people find themselves in a new media environment there'll be new calls for regulation, and new calls for changes to First Amendment doctrines that some people may think are no longer apt.

I may be wrong in my predictions about what the new media order will look like. But the one thing that seems certain is that the new order will, in many ways, be vastly different from the old.