In the rush of events following the collapse of the Berlin Wall in 1989, more and more attention focused on the United States Supreme Court and the body of decisions it had produced. To the world, the United States appeared the most stable and vibrant of all democracies, and many thought that one of the keys to its success lay in the role that the Supreme Court had created for itself. Comparative constitutional law became a growth industry. To a large extent, I welcomed this development, believing that there was a lot in the history of the Supreme Court of which we could be proud. Nonetheless, I worried that in the climate of the late 1980s and the 1990s, dominated by an exaltation of capitalism as expounded by Ronald Reagan and Margaret Thatcher, the wrong lessons might be extracted from our constitutional experience. This was the dominant theme of the seminar I taught with George Priest in the early 1990s entitled "Capitalism or Democracy?"
Ever since Hungary broke from the Soviet bloc and established a constitutional democracy, it has been besieged by problems in its efforts to create a free press, especially in the broadcasting field. It was therefore natural that the first major conference in the region on issues regarding freedom of the press was held in Budapest. The conference was convened in June 1993 by the Central European University in that city and was attended by representatives of the countries from the former Soviet empire as well as by scholars from the United States, Germany, and England. This essay was written for that conference and first appeared in the Spring 1995 issue of the Yale Journal of International Law. Reflecting a slant much to my liking, the title of the conference was "The Development of Rights of Access to the Media"; but, as reflected in this essay, I believe access should be regarded as a second-generation issue -- to be addressed after one has gotten the basic structure right.