On January 12, 1994, the U.S. Supreme Court took a spin down the information superhighway. The justices heard opening arguments in Turner Broadcasting System v. Federal Communications Commission about whether the cable industry's free-speech rights, are being trampled by a 1992 federal law that requires cable systems to set aside up to one-third of their channels for local broadcasts. As telecommunications technologies, like cable TV, the telephone, and the computer merge, billions of dollars in profits are at stake. The cable industry loses potential revenue for every pay-per-view or movie channel they must replace with local stations broadcasting their own mix of local news, sit-com reruns, educational and culinary programs, old movies, and the like.
It is ironic that the cable industry should make a First Amendment claim in Turner v. FCC to deny local broadcasters access, since the intent of the federal law was to offset the cable industry's monopoly, which has increasingly crowded out the local broadcasters. The comments of legal scholars both sides reveal a contradiction: in the modern age, effective speech is neither free nor cheap. The rights of those who can afford to buy a lot of speech take precedence over the rights of those who cannot afford it. This de facto censorship of the market-place limits freedom of speech as much as any government censor. Today, speech is property, and some of us have more of it than others.
But what if we were to take the monolithic free-speech provision of the First Amendment and break it down into two distinct categories: wealthy speech and cheap speech? How would that affect our understanding and policymaking regarding free speech? Suppose our First Amendment jurisprudence were to distinguish between the free speech of, say, the New York Times and a soapbox radical, or between General Electric-owned NBC and a homeless single mother. Or between nationally ally based cable-industry leader Telecommunications Inc. (TCI) and the smaller, locally based stations. As obvious as such a distinction may seem, current First Amendment theory depicts free-speech doctrine as monolithic, allowing very little distinction between the elephants and the ants of the media, let alone between corporations and individuals or the rich and the poor. Constitutional conservatives, First Amendment purists, and many civil libertarians take literally the First Amendment's proscription "Congress shall make no law ... abridging the freedom of speech." No law means no law, they say.
So much for theory. In practice, if the US. Supreme Court's past record in matters of speech is any indication, it seem that the justices have been quietly making their own distinctions between wealthy speech and cheap speech for at least 25 years. A clear pattern emerges: during the Warren, Burger, and Rehnquist courts, in case after case regarding matters of speech, the winners have been the powerful and privileged and the losers have been those with lesser means. It's as if, in the eyes of the Court, free speech is synonymous with wealthy speech, while cheap speech has been pushed to the margins of First Amendment protection. For instance, in 1984, Chief justice William Rehnquist wrote the Court's decision in Federal Election Election Commission v. National Conservative Political Action Committee, which struck down Congress efforts to restrict campaign expenditures made by political-action committees like the NCPAC and the National Rifle Association. Rehnquist seemed to think he was being inordinately fair and nondiscriminatory when he reminded us that the Court's decision applied equally to multi-billion-dollar PACs and to "informal discussion groups that solicit neighborhood contributions to publicize their views."
This decision is just one of a consistent series of decisions by the Burger-Rehnquist Courts expanding the wealthy-speech rights of banks, private corporations, and millionaires and restricting the cheap-speech rights of grass-roots and community, activists. …