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. During the past two decades, the Court has upheld the night of banks to spend money to influence the outcome of public referendums; affirmed the right of millionaires, to spend unlimited personal funds on their own elections ("Thank God!" says Ross Perot; "Too bad," says Larry Agran and Ron Daniels); affirmed the right of utilities to include public-policy statements with their monthly bills to customers; struck down laws used to curb state regulation of commercial advertising; and, in March 1993, reaffirmed that advertising and commercial speech are to be accorded substantial constitutional protection - a status that did not even exist prior to 1976. The only deviation from this pattern was the Court's affirmation of a Michigan law prohibiting corporate spending in support of political candidates.
These decisions are in stark contrast to others involving the exercise of cheap speech by those poorly financed causes of the grass roots. In these cases, the majority found ample justification for government restriction, often as a means to protect private property For instance, the Burger Court held that shopping malls, despite having replaced town squares as the new public arena, were private property and not subject to the First Amendment (since then, a few state courts have decided under their own constitutions that malls must accommodate free speech). Also, the Burger-Rehnquist Courts have ruled that the federal government could prohibit the deposit of leaflets and circulars in the mailboxes of private homes; that the Fairness Doctrine did not have to be extended to include the print media, opening the door to a repudiation of the Fairness Doctrine by a Reagan-appointed FCC; and that the Combined Federal Campaign, which facilitated charitable contributions by federal employees through payroll deductions, could exclude advocacy groups such as the NAACP and the Sierra Club (a decision which was subsequently reversed by congressional action).
In addition, the Court has also manipulated "time, place, and manner" restrictions, ruling that the city of Los Angeles could prohibit the display of posters on public property, such as utility poles and trees; that the managers of a publicly operated state fair could limit the activities of religious solicitors to an assigned booth and bar them from the crowded midway; that homeless people could be prevented from conducting a symbolic sleep-in at the public park opposite the White House; and that the sidewalk in front of the post office could be placed off-limits to political solicitations. In all of these decisions, the Court's reasoning seems to be that the homeless and poorly financed have available to them other channels of communication than those being restricted. They are entitled - just like major corporations and wealthy individuals - to use their own private resources (however meager these actually are) to publish their own newspapers or set up their own PACs that can spend unlimited amounts on their lobbying efforts. In short, in any First Amendment foot race, it doesn't matter if one competitor is an Olympic gold-medal winner and the other is a turtle, as long as both begin at the same starting line.
This historical context is essential for understanding the magnitude of Turner v. FCC and other cases regarding the telecommunications industry and the information superhighway that will be heard by the Supreme Court in the years to come. The Court will have the opportunity in Turner v. FCC to extend its First Amendment jurisprudence to the emerging telecommunications technologies. And as a result of the rapid growth of these technologies, vexing legal questions will be revisited concerning computer bulletin boards and the like: questions of libel, of pornography and obscenity over the wire, of rights of privacy, of exposure of children to violent and adult material, and so on.
But perhaps most vexing of all is the question of just how available the new communications technology is to the general public. In a few short months, Congress is slated to auction off 120 megahertz of frequencies for cellular and personal communications services. The going price for each frequency begins in the tens of millions of dollars, and the Congressional Budget Office estimates that the auction will raise $10 billion for the federal treasury. At that price, only the wealthiest can afford to buy. Wireless communications and other telecommunications technologies are poised for what could be the twenty-first-century version of the great Western land grab, except only the cattle barons will be eligible.
"I tend to look at cable and telephone as part of one big food chain," said John Malone, chief executive of TCI, in a moment of candor. "Right now, the higher mammals are doing the eating."
"We're throwing 120 megahertz out there and it's going to change the world," cautions the FCC's Tom Mooring. "We don't know for sure what's going to happen, but we do know it's going to shake things up."
The government has established a few mitigating rules, setting aside a portion of the frequencies for minority-owned businesses and limiting how much frequency any existing cellular company can control in a given service area. Yet these types of restrictions and set-asides are exactly what the cable industry is presently fighting in lawsuits like Turner as a violation of its free-speech rights. The ability of many individuals to pay for access to the information superhighway is in no way guaranteed, and existing economic disparities - the gap between the rich and the poor, the haves and the have nots - could easily be intensified. To an uncomfortable degree, the public's accessibility will be in the hands of a Supreme Court which has already shown an ideological sympathy for wealthy speech over cheap speech.
Is it wise to allow the First Amendment to be taken prisoner like this by our economic system? Some legal experts and policy advocates are beginning to question certain constitutional presumptions, sounding an alarm that the new telecommunications technologies - like free-trade agreements - may exacerbate anti-democratic and authoritarian tendencies.
"As history has shown time and time again," says electronic-media consultant David Bollier, "the unfettered market-place will not produce a telecommunications system which adequately serves the full spectrum of society's needs." The free-market model is not truly operative here, insists Bollier, since market forces push the electronic media toward monopoly. And the few large media players that survive, gobbling like Pac-Men for ever larger pieces of the market, are pushed by commercial forces toward homogeneous programming. Despite the availability of 30 or more channels, the familiar complaint is that "there's nothing on tonight." Does anyone actually believe that 100 or 500 channels will change this? The free speech of TCI and TBS or NBC and the New York Times has not yielded even a close approximation to the classic "free marketplace of ideas," says Bollier. Nor have the media offered chokes in any way equivalent to the diverse kinds of expression that can be found in US. society.
The new telecommunications infrastructure has the potential, to re-invent and liberate contemporary media. But this will require fresh and imaginative federal policy, as well as a US. Supreme Court capable of reversing its past allegiances to wealthy speech over cheap speech. Policy advocates who favor the public's accessibility to telecommunications technologies must recognize the very real and significant differences between wealthy speech and cheap speech and cease treating the free-speech doctrine of the First Amendment as a nondiscriminating monolith. A jurisprudence acknowledging the difference between, wealthy speech and cheap speech - and in addition up-holding holding the principle that society has a compelling interest in valuing the latter even at the expense of the former - will put the public's accessibility to the information superhighway on a more sold footing. Set-asides of cellular frequencies for minority-owned businesses is a good start, as are set-asides for local broadcasters and for those wacky "Wayne's World" programmers of late-night public-access television. Such trends need to be defended when attacked, as well as broadened and strengthened.
Indeed, the very principle of set-asides is under attack in Turner v. FCC, just as affirmative action set-asides like those for minority contractors have been assailed. But what is significant in Turner is that the set-asides are under attack by a free-speech argument. It is counterproductive to ignore the complexities and ambiguities of such an attack. People with little money need effective speech as much as people with a lot of money - arguably more so. But in the 1990s, because effective speech is sold to the highest bidder, cheap speech may become an increasingly irrelevant and endangered species. Regrettably, the public space for cheap speech is actually shrinking as local, state, and federal governments and courts restrict public postering, leaflets on car windshields, leaflets in shopping malls, use of amplified speech in public areas, and other forms of cheap speech. But the solution cannot be simply a cry for "more speech," since that does nothing to alter the market forces which have captured the First Amendment.
First Amendment purists and civil libertarians who claim to be in favor of the public's accessibility to the information superhighway as well as a monolithic, nondiscriminating free-speech speech doctrine in fact fight for one at the expense of the other. But a jurisprudence that argues for a compelling interest to expand cheap speech, even at the expense of wealthy speech, offers a viable route out of this dilemma. Anything less perpetuates a free-speech doctrine that has allowed the US. Supreme Court's sorry track record over the past 25 years, during which time the corporate elite has almost always won and "we, the people" have almost always lost.
Stay tuned this summer, when the Court will render its decision in Turner v. FCC.…