The Right of Expressive Access in First Amendment Theory: Redistributive Values and the Democratic Dilemma

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INTRODUCTION

Over the years, it has not been uncommon for scholars or jurists to analogize the right of free expression to a marketplace in which contrasting ideas compete for acceptance among a consuming public.1 Many have questioned whether the analogy is an appropriate one.2 But whether or not such a characterization was ever accurate or appropriate, a number of respected scholars have in recent years suggested that the right of free expression does suffer from many of the inequities and inequalities that have historically been thought to plague the economic darwinism of the actual capitalist marketplace.3

No one could reasonably dispute that, for much of the twentieth century's second half, economic power and the ability to get oneself heard became significantly intertwined. The simple realities were-and, to a certain extent, may still be-that one must either control or at least have meaningful access to institutionalized modes of communication in order to reach an extended audience. Yet for the large majority of individuals and organizations the costs of doing so have generally been prohibitive. Not surprisingly, then, most effective means of modern communication have been controlled largely by economically powerful entities or individuals. The result, some have argued, has been a harmful inequity in the relative ability of members of the populace to communicate their messages and a resulting impoverishment of the scope and substance of public debate.4

Certain scholars have further argued that control of expressive resources by economically powerful interests enables those interests to shape the modern political agenda and thereby heavily influence political decisionmaking.5 This strategic by-product of such concentration of expressive power, they suggest, circularly assures that government will refuse to adopt modes of economic redistribution that would both allow change in the political agenda and, ultimately, the readjustment of societal economic power in a more equitable manner.6 The only means to break the cycle, these scholars contend, is to recognize some form of a governmentally enforced right of access on the part of private individuals and entities to existing sources of privately owned expression and information. Such a right of access, they assert, not only would fail to contravene the core values protected by the First Amendment, it would actually foster them.7

A right of expressive access can assume a variety of concrete forms. For example, it may require that broadcast licensees provide an opportunity for the expression of varying viewpoints on issues of public concern,8 or that the print media provide an opportunity for reply to those whom it has criticized,9 or that cable operators provide channels for local broadcasters.10

The arguments in support of a right of expressive access may at first appear intuitively appealing. But many of the empirical assumptions concerning the alleged link between financial resources and the ability to contribute meaningfully to public debate fail to take into account the impact of several relatively recent and important advances in communications technology, which may have ameliorated the communicative problems caused by financial concentration. Surely, the growth of cable television (with its opportunities for both smaller and more specialized stations as well as for numerous public access channels) and the Internet (with its opportunity for immediate and inexpensive world-wide communications and information retrieval abilities) suggests the possibility of an explosion in the common person's ability to influence and communicate with her local community, as well as with broader national and international communities.11

To be sure, despite the potentially dramatic impact of such modern technological advances, it remains arguable that the scope and substantive diversity of public debate would be even further enriched by the extension of a right of expressive access to those who normally lack the opportunity to speak through institutional communicative sources. …