Hofstra Law Review


Malla Pollack


Despite the Supreme Court's repeated use of free speech doctrine to derail media reforms, some reform is possible. As Jerome A. Barron recognized, the Court's central error is hypothesizing a romanticized speaker. The Court's copyright jurisprudence is similarly marred by its congruent focus on a romanticized author. The original and continuing central purpose of both copyright and free speech is the wide distribution of material to citizens especially when politically relevant information and opinions are involved. The Constitution's copyright clause, Article I, section 8, clause 8, allows Congress the power to enact only such statutes as encourage the progress (meaning distribution) of science (meaning knowledge). See Malla Pollack, What Is Congress Supposed to Promote?, 80 Nebr. L. Rev. 754 (2001). This reading explains why James Madison saw no need for a free speech clause, despite understanding that [a] popular government without popular information [b] or the means of acquiring it is but a prologue to a farce or a tragedy or perhaps both. See id. at 774-75. The Court, however, has allowed free speech to be used to undermine government attempts to regulate the media in the name of citizen enlightenment, and has allowed copyright to be wielded as a private weapon against distribution of politically potent writings. See, e.g., Time Warner Enter. v. FCC, 240 F.3d 1126 (D.C. Cir.) (holding that FCC's rule limiting the vertical integration of cable ownership violates the First Amendment), cert. denied sub. nom., 534 U.S. 1054 (2001); Harper & Row Publishers v. Nation, 471 U.S. 539, 558-59 (1985) (holding that political importance of President Ford's account of Nixon's resignation was a reason supporting use of copyright to prevent its distribution by a competitor).

Barron's solution, however, is outdated. Barron believed that citizen-listeners would obtain the needed-inputs if would-be-speakers had a right of access to the mass media. Mere access is no longer enough. The explosion and digitalization of distribution channels drowns most content in noise. See, e.g., Ellen P. Goodman, Media Policy Out of the Box, 19, Berkeley Tech. L.J. 1389, 1392 (2004) (Today, the scarce resource is attention, not programing.). Citizen-listeners need some form of mediation to locate and recognize relevant high-quality content.

Despite the Court's continuing reluctance to burden speakers and authors for the benefit of listeners and readers, several existing doctrines offer possible routes to at least partial solutions. Copyright offers fair use and the uncopyrightability of government works. See 17 U.S.C. §§ 105 (government works), 107 (fair use); Banks v. Manchester, 128 U.S. 244 (1888) (rejecting copyright protection of judicial opinions). Free speech offers the concept of government speech. See Johanns v. Livestock Marketing Assn., 125 S. Ct. 2055 (2005) (allowing private parties to be compelled to fund government speech with which they disagree); Legal Svc. Corp. v. Velaquez, 531 U.S. 533, 540 (2001) (explaining prior case law as allowing viewpoint discrimination within the government's own speech, even if voiced through a proxy).

If the Supreme Court's approval was the only road-block, the best solution would be an independent federal agency, generously supported by congressionally appropriated funds, with the sole mission of uncovering and distributing (in attention-catching form) information and opinions skeptical of official policies and pronouncements - a National Corporation for Public Criticism. Accord National Endowment for the Arts v. Finley, 524 U.S. 569 (1998) (approving government sponsored program where experts make quality decisions regarding which speech to fund). The government might be the only target, or the NCPC could scrutinize any entity related to an issue of public concern. Besides a generous budget for investigation and creative programing, NCPC would offer prospective investigative reporters the right to shield whistle-blowers (contra DOJ follow ups of the revelations that Plame worked for the CIA and that the president had approved warrant-less domestic wiretapping by the NSA). Congress and the President, however, are unlikely to bless such an official gadfly. (Consider, for example, the political appointees who tried to silence NASA scientists about global warming.)

Some partial solutions may be more possible. First, a job for the courts, the government speech doctrine should be modified. The government is not an independent constitutional actor; it is the creature of the people, as copyright doctrine recognizes in refusing to ban unsanctioned copying of statutes and court decisions. Therefore, none of the generally accepted policy goals of free speech support the current, broad doctrine insulating government control of the bloated set of statements now imputed to the government. The government as speaker must be disaggregated and stripped of anonymity. But see Johanns (approving government message purporting to be sponsored by America's Beef Producers). At least as to issues of political concern, the government entity sponsoring the speech must be clearly identified to listeners, thus protecting citizens from public relations tapes broadcast in the guise of independently authored news stories. Furthermore, government speakers must be allowed or actively encouraged to publicly disagree with each other.

Second, a job for the legislature, internet mass media and government sources should be required to host or co-operate with citizen comments. Such a system could work by hyperlink and blog-like technology. Tying comments to internet-posts originated by professional news organizations or government agencies would solve the location problem. Legitimization of individual comments should be handled through reader-rating systems such as used by eBay and Move-On's Action Forum. But see Miami Herald v. Tornillo, 418 U.S. 241 (1974) (using First Amendment to strike down a state statute which required hard-copy newspapers to print responses by political candidates); Los Angeles Times v. Free Republic, 54 USPQ2d 1543 (C.D. Cal. 1999) (holding that newspapers' copyrights in original articles were violated by blog where copies of news reports were posted and criticized). Internet technology allows comments which do not meaningfully limit the space available for the newspapers' own speech.

To summarize, the Court still makes the analytical error recognized by Barron forty years ago. That error is reinforced by a similar misstep in copyright theory. Nevertheless, with creativity, some media reform is possible.

This paper is part of a symposium in honor of the fiftieth anniversary of Jerome A. Barron's article, Access to the Press - a New First Amendment Right, 80 Harv. L. Rev. 1641 (1967). Papers will be published in Hofstra Law Review.

Included in

Law Commons