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The New Theology of the First Amendment

Robert W. McChesney teaches journalism at the University of Wisconsin-Madison and is the author of Telecommunications, Mass Media, and Democracy: The Battle for the Control of U.S. Broadcasting, 1928-1935 (1993).

The First Amendment stands as the crown jewel of the U.S. Constitution. Although it often has been ignored and violated throughout U.S. history, the First Amendment is the republic’s shining commitment to individual freedom of expression and to the protection of this institutional requirements for an informed electorate and a participatory democracy. Yet what exactly the First Amendment signifies and does has been the subject of considerable debate over the years. Currently or in the near future, any number of cases are and will be working their way through the court system that would seek to prohibit any government regulation of political campaign spending, broadcasting, and commercial speech (e.g. advertising or food labeling) on the grounds that such regulation would violate citizens’ and corporations’ First Amendment rights to free speech or free press. Each case raises quite distinct constitutional issues concerning the First Amendment, but they share the common effect of protecting the ability of the wealthy and powerful few to act in their self-interest without fear of public examination, debate and action.

It is no surprise that the political right and the business community approve of this extension of First Amendment protection to these activities. To the extent commercial activities are given First Amendment protection, it makes the rule of capital increasingly off-limits to political debate and government regulation. And if political campaign contributions cannot be regulated, it puts the entire political process ever more firmly under the thumbs of the wealthy. What is striking, however, is that the venerable American Civil Liberties Union (ACLU) has lined up, more often than not, as an advocate of these “extensions” of the First Amendment. Wrapped in the most flowery jargon imaginable, the ACLU promotes the notion that this interpretation of the First Amendment is the truly democratic one.

I argue in this article that the ACLU and progressives who might be persuaded by the ACLU’s logic are making a terrible mistake, and one that cannot be justified if one maintains a commitment to political democracy. This error is part and parcel of a broader process whereby the First Amendment has become more a mechanism for protecting class privilege than for protecting and promoting freedom and democracy. In my view, progressives need to stake out a democratic interpretation of the First Amendment and do direct battle with the Orwellian implications of the ACLU’s commercialized First Amendment. And, as should be clear, this is far more than an academic battle: the manner in which the First Amendment is interpreted has a direct bearing on our politics, media, and culture. That is why the political right and business community have devoted so much attention to converting it into their own possession.

The Utopian Case for a Commercialized First Amendment

Beginning in the 1970s, the U.S. Supreme Court has rendered a number of decisions which have increasingly extended First Amendment protection to corporations and commercial activities. As for political contributions, the Supreme Court first considered whether the government could constitutionally regulate campaign contributions in 1976, in Buckley v. Valeo. It upheld that right on balance, but the Court also stated that individuals had a First Amendment right to contribute as much of their own money as they wished to their own political campaigns, à la Ross Perot. The ACLU is among those who want not only to maintain this aspect of Buckley v. Valeo, but also to grant First Amendment protection to nearly all other forms of campaign contributions. As an ACLU counsel notes, government limitations on campaign spending “would trammel the First Amendment rights of political parties and their supporters.”

This claim is made despite the chilling effect that the current cash-driven electoral system has on the nature and caliber of U.S. participatory democracy. The electoral system in the United States is in severe crisis, a crisis typified by low voter turnout, a narrow range of debate where substantive issues are studiously ignored, and a degree of depoliticization that makes perfect sense for such a vapid political culture. The current system elevates people with no credentials, but vast inherited fortunes, to almost automatic political prominence—like Steve Forbes, Michael Huffington and U.S. Senator Herb Kohl to mention just a few—while marginalizing dedicated citizens with lifetimes of public service (but who refuse large contributions on principle) like Ralph Nader. The cash-driven electoral system is not the only factor that explains the decrepit state of U.S. politics, but it is among the prime culprits. And whether or not it is the cause, it is impossible to think of any solution that leads to the revitalization of U.S. electoral politics without significant reform of campaign spending.

The ACLU’s argument, in a nutshell, goes something like this: if the First Amendment is applied to any and all forms of speech, then the net result will be a flowering marketplace of ideas. As long as the government is kept away from speech, only good things will happen for democracy. And the ability to spend money on campaigns is an inexorable aspect of speech; if it is regulated then we are on a slippery slope where all other forms of speech may soon be under government regulation and censorship. After all, censorship is contagious. This is basically the same argument used to extend the First Amendment to broadcasting, advertising, and other commercial activities.

At its most eloquent, this liberal argument for extending the First Amendment to political spending and, with qualification, to many commercial activities promises the greatest possible democratic political culture. But we have massive firsthand experience to show how absurd this claim is. In the past thirty years the First Amendment has been extended by the courts to cover vast areas—generally commercial—and our media and electoral systems may be the least regulated in the developed world. By the ACLU laissez-faire formulation this should be the golden age of participatory democracy. But, in fact, this is arguably the low point in U.S. democratic participation. In many respects we now live in a society that is only formally democratic, as the great mass of citizens have minimal say on the great public issues of the day, and such issues are scarcely debated at all in any meaningful sense in the electoral arena. This political marketplace of ideas looks a lot more like a junkyard than a flower bed. To paraphrase a line from a Woody Allen movie, if John Stuart Mill were around today, he would never stop throwing up.

There are two flaws with the ACLU vision. First is the notion that the government is the only anti-democratic force in our society. Government can be and at times is a threat to democracy—and deserves constant vigilance—but this is not a meritocratic society otherwise. Nearly all theories of democracy from Aristotle to Madison to the present have recognized that democracy was fundamentally incompatible with pronounced social inequality. In our society, corporations and the wealthy enjoy a power every bit as immense as that enjoyed by the lords and royalty of feudal times. This class power works through means like campaign spending to assure inequality and limit democracy. Second, markets are not value-free or neutral; they not only tend to work to the advantage of those with the most money, but they also by their very nature emphasize profit over all else. A commercial marketplace of ideas may generate the maximum returns for investors, but that does not mean it will generate the highest caliber of political exchange for citizens. In fact, contemporary evidence shows it to do nothing of the kind.1

If income and wealth were relatively equally distributed in the United States, I would be open to an argument that equated political spending with speech.2 But we do not live in anything remotely close to an egalitarian society. The top one percent of the population owns one-half of the financial wealth, while the bottom 80 percent has around 6 percent. The top one percent of the population receives nearly 20 percent of U.S. income while the bottom 80 percent of the population divvies up around 45 percent of U.S. income. Letting people spend as much money as they want is simply letting people at the top buy their ways out of a genuine democracy with a level playing field. Even leaving aside the hundreds of millions spend by corporate PACs (and why should we?), something along the lines of 90 percent of all individual campaign contributions come from those with annual incomes in excess of $100, 000—i.e. from only the very top few percentage points of the U.S. income distribution. Is it any surprise that government policies pushed by both major parties—each dependent upon massive gifts from those with money in order to compete—have increased the polarization of U.S. society over the past twenty years? And is it any surprise that countless Americans—especially from the lower 80 percent—regard U.S. politics as a sick joke? Can anyone possibly think this will change as long as our elections are auctions?

But what about concerns of the slippery slope, that if the government regulates campaign contributions it will open the door to the regulation of the content of books and magazines and the infringement of other freedoms? The slippery slope principle is legitimate but it simply does not apply willy-nilly. There is no evidence that anyone has ever had any trouble distinguishing the regulation of campaign contributions from the censorship of the press or speech. In a related area, for fifty-some years the federal government has been regulating advertising, and to my knowledge it has never led to a single case of some zealous regulator sliding down the slope to begin censoring editorial content surrounding the ads.

The Absolutist Defense

At this point ACLU liberals stop defending the extension of the First Amendment to political spending (or commercial speech) from the claim that this is a good or necessary thing for democracy that can be verified empirically, and begin to invoke so-called principle. The argument goes that speech needs no defense to be protected by the First Amendment; it is a civil right with value to the individual that simply cannot be abridged. This is sometimes characterized as the “absolutist” position, and, in the end, this principle provides the strongest case for protecting spending and perhaps even extending the First Amendment to new commercial activities. But it still does not fly, because absolutism is anything but absolute. Modern free speech absolutism and civil libertarian groups like the ACLU were born in the tumultuous first decades of the twentieth century, with strident commitments to the protection of dissident political opinion and labor activism from government harassment. Absolutism was inspired by the promise of democracy, but, after defining what speech was necessary for democracy, it was also absolutist in its rejection of any government regulation, regardless of the justification.

Hence absolutism, and arguably any theory of the First Amendment for that matter, has two components. The theory first determine what constitutes “speech,” or, put another way, what speech is protected. Then, once that determination has been made, it is protected absolutely. But even the most strident “absolutist” cannot avoid determining what speech qualifies, or what constitutes speech. Hence today the debate is over whether advertising, or food labeling, or campaign contributions are speech. I have no qualms about extending the First Amendment net to include areas that may not have any clear connection to politics, but I think principle is necessary to guide the debate. And a good start is this: if the rights to be protected by the First Amendment can only be effectively employed by a fraction of the citizenry, and their exercise of these rights gives them undue political power and undermines the ability of the balance of the citizenry to exercise the same rights and/or other constitutional rights, then it is not necessarily legitimately protected by the First Amendment.

The first great wave of twentieth century absolutists, including people like Alexander Meiklejohn, argued that the First Amendment protected any and all political speech under any and all circumstances. But they also argued that commercial speech (like advertising) was not protected by the First Amendment, but rather by the Fifth Amendment and its “freedom to contract” clause. Indeed, Meiklejohn argued that if commercial speech were given the same weight under the First Amendment as political speech, the First Amendment would lose its integrity and soon become primarily a tool for commercial interests who had no particular interest whatsoever in politics and public life per se.3 That is exactly what is happening today. Meiklejohnian absolutism, like all other theories of the First Amendment, presents several problems determining what exactly is protected speech, but it has the core strength of keeping its eyes on the prize: democracy.

Since campaign spending was not a particularly pressing issue in the first two-thirds of the twentieth century—due largely to the lack of paid TV political advertising—it does not get discussed much by the first generation of absolutists, people like Meiklejohn, Hugo Black, and, later Thomas Emerson.4 But there is every reason to assume that it would have been considered a form of speech had it ever been tested in the courts before Buckley v. Valeo in 1976. Commercial speech, on the other hand, was never considered fair game for First Amendment protection by the first great generation of absolutists, nor by their most principled academic heirs today. When the Supreme Court considered whether advertising should be protected by the First Amendment from government regulation—in 1942—the Supreme Court, including absolutist Black, voted 9-0 against that proposition.

The Opening to a Corporate, Commercial First Amendment

The extension of the First Amendment to cover corporate and commercial activity is a recent phenomenon, taking place over the past twenty-five or thirty years. This was not due to any profound philosophical debates or discussions over the meaning of freedom and democracy. To the contrary, this “extension” of the First Amendment was basically a conservative response by the court system to the sheer commercialization of the culture and the corporate domination of society, as the market began to spread into every nook and cranny of social life. When commercialism penetrates everything, and when noncommercial public life diminishes or merges with commercialism, the capacity to distinguish between the two is compromised. This position was fueled to some extent by aggressive media,advertising, and corporate lobbies ever eager to eliminate government regulation of their activities, and always quick to invoke high-minded principle to justify their self-interest. If not on the law faculties, then at least in the popular mind these corporate interests and their think-tank ideologues have been among the leading definers of this newfangled “absolutism.” And, regrettably, the ACLU has increasingly accepted this Philip Morris interpretation of the First Amendment.

But this, alone, only begins to explain this striking shift in interpretation of the First Amendment. The critical factor that accentuated the problem with maintaining a strict line between political and commercial speech was the commercialization of the press. The commercialization and corporate ownership of media have also been the primary reasons for the explosion of political campaign costs that underlies the concerns about unregulated political spending. In this way the issue of whether campaign contributors are protected from government regulation by the First Amendment is indelibly linked to the commercialization of the culture and of the First Amendment.

Although discussions of the First Amendment protection of a “free press” often simply take discussions of individual speech and apply them to the press without qualification, there are important differences. It is one thing to assure individuals the right to say whatever they please without fear of government regulation or worse. This is a right that can be enjoyed by everyone on a relatively equal basis. Anyone can find a street corner to stand on to pontificate. It is another thing to say any individual has the right to establish a free press to disseminate free speech industrially to a broader audience than could be reached by the spoken word. Here, to the extent that the effective capacity to engage in free press is quite low for a significant portion of the population, the free speech analogy weakens. Moreover, those with the capacity to engage in free press are in a position to determine who can speak to the great mass of citizens and who can not. This accords special privileges to some citizens who can then dominate public debate.

The core issue for First Amendment theorists, then, is whether the First Amendment protects the rights of press owners absolutely, regardless of the implications for democracy, much as it protects individual speech regardless of the content of that speech. The alternative is to view the First Amendment protection of a free press as a social right to a diverse and uncensored press. In this view the right to a free press is a right enjoyed by all citizens equally, not just by press owners. Here the explanation for constitutional protection is implicitly linked to the need for a free press in order to have a functioning democracy. Otherwise there is no more need of its inclusion in the First Amendment than there would be for a guarantee of the right to establish a bread baking business or a shoe repair service. As Meiklejohn points out, those commercial rights are explicitly covered in the constitution by the Fifth Amendment.

Indeed, there is little dissent to the argument that the free press clause was inserted in the First Amendment to protect democracy. As the press system of that era was explicitly connected to political parties and factions, such protection was necessary to protect minority political opinion from direct harassment by the dominant political party that controlled Congress and the government. Was this a legitimate concern? Absolutely. Only a few years after the adoption of the First Amendment, the crisis surrounding the Alien and Sedition Acts emerged, in which the dominant Federalist Party attempted to use the law to muzzle the voices of Republican newspaper editors.5

The conflict between the anti-democratic potential of a private press system and the needs of democracy was not an important debate for much of U.S. history. During the republic’s early days, the press system was highly partisan, often subsidized by government printing contracts or partisan contributions, politically motivated, and relatively noncommercial. In this period even small political factions found it relatively easy to publish and support all shades of political organs. One need only consider the broad array of abolitionist and feminist newspapers in the first half of the nineteenth century to appreciate the capacity of the press system to accommodate a wide range of political opinion. Later, during much of the nineteenth century, the partisan press system was replaced by a highly competitive, yet still fairly political, commercial press system. In this system there was still relative ease of entry to the market, and a cursory glance at any city of moderate size would tend to find a diverse press representing nearly every segment of the population. The press systems of the republic’s first century were far from perfect, but they were also not by any means a primary barrier to political democracy.

All this began to change toward the end of the nineteenth century, when the press (and, later, media) became an important capitalist industry, following the explicit logic of the commercial marketplace. Over time the media system became vastly less competitive in the economic sense. Not only were most media industries concentrated in the hands of a small number of large firms; barriers to entry made new competitive challenges almost impossible. Hence the “ease of entry,” which made the free press protection in the First Amendment a near universal right for citizens was effectively eliminated. Along these lines, virtually no new daily newspapers have been successfully launched in existing markets in the United States since the First World War, despite their immense profitability and growth. And likewise, no new major Hollywood film studios have been established in sixty years. Moreover, the logic of the marketplace has led to the conglomeration of media giants so that the largest firms, like Time Warner and Disney, have dominant holdings across nearly every major media sector.

And that’s not all. The media have become increasingly dependent upon advertising revenue for support, which has distinct implications for the nature of media content. Modern advertising only emerged with the arrival of corporate capitalism in the past century, and is conducted disproportionately by the very largest corporations. In the business press, the media are often referred to in exactly the way they present themselves in their candid moments: as a branch of the advertising industry. This corporate media system has none of the intrinsic interest in politics or journalism that existed in the press of earlier times. Its commercialized news fare, if anything, tends to promote depoliticization, and all evidence suggests that its fundamental political positions, such as they are, are closely linked to political and business elites. In view of ownership and subsidy, anything else would be astonishing. To be fair, the formal right to establish free press is exercised by dissidents on the margins, but the commercial system is such that these voices have no hope to expand beyond their metaphorical house arrest.

The rise of this corporate media system augurs a moment of truth for the First Amendment and its protection of a free press. Are corporations the same as people? Do shareholders and executives at corporations—clearly driven by law and the market to maximize profit regardless of the social implications—have the unconditional right to censor media content? Should investors be granted the First Amendment right to select and censor journalists when they have no more concern for the press than they have for any other potentially profitable investment? Is it right that this capacity to censor be restricted to the very wealthiest Americans, or those they hire to explicitly represent their interests? How does one distinguish what speech is necessary for politics—and thereby absolutely protected by the First Amendment—when it seems that all speech is increasingly concerned only with commercial gain, and political democracy is not even a prerequisite for its existence? Being an absolutist for a commercial media system then appears to have precious little to do with democracy and a great deal to do with protecting a powerful industry (and the class that owns it) from the same legal potential for public accountability that other similar industries face. And if the First Amendment covers corporate media, by what logic should it not cover corporate advertisers, or food manufacturers, or commerce in general?

This conflict first emerged in the Progressive Era, when chain newspaper ownership, one-newspaper towns and advertising had converted much of the U.S. press into blatant advocates for the status quo, while the formal right to launch newspapers meant little to dissidents who could not survive commercially in a semi-monopolistic market.6 The material response to this crisis was the introduction of “professional” and “objective” journalism, and formal university-level schools of journalism, usually at the urging of the largest newspaper publishers. By the logic of professionalism, the journalists would produce a neutral product that did not reflect the biases of the owners, the advertisers, or themselves. Hence, while the owners maintained control of the industry and First Amendment protection, they would informally recognize the need for autonomous journalism with integrity that the public could trust. How successful or viable professionalism has been as a counterbalance to corporate commercial media control has been the subject of considerable debate over the years.7 In recent years, however, many observers concede that journalistic autonomy has been shrunk or eliminated under commercial pressures from corporate owners.

Some Meiklejohnians—most notably Jerome Barron—would eventually argue that a commitment to the spirit of the First Amendment required the government to intervene to assure that semi-monopolistic newspapers provide a diverse range of views.8 But for the most part those in the Meiklejohnian tradition have shied away from this response to the anti-democratic implications of the corporate media market: the prospect of government intervention in the press is by definition censorship and is therefore not acceptable under any circumstances. The experience with fascist and authoritarian media systems justifiably gave everyone trepidation about government-regulated media. And when the Supreme Court heard Barron’s argument in Miami Herald v. Tornillo in 1974, it voted 9-0 against his position. Justice William O. Douglas displayed his utter contempt for Barron’s position by reading a newspaper during his argument. It is worth noting, however, that the Supreme Court did not directly state that the right of the First Amendment belonged to the owners. The government cannot regulate “the exercise of editorial control and judgement,” Chief Justice Warren Burger’s opinion stated. Justice Byron White’s concurring opinion noted that the government cannot “insinuate itself into the editorial rooms of this nation’s press.”9 Clearly, the Court accepted the traditional presupposition that there is no important distinction between owners and editors, and its concern was to protect editors, not investors. In fact, editors and journalists have no First Amendment protection unless ceded by the owners. Wallowing in the nineteenth century mythology preferred by the corporate media lawyers and ideologues, the Supreme Court has never directly addressed what the First Amendment means for a free press in the modern corporate commercial system.

There are two other “Meiklejohnian” solutions to the crisis of democracy generated by a corporate-dominated, commercially marinated media system. The most radical is to eliminate commercial media for the most part and create a large, nonprofit, noncommercial media system accountable to the public. In the Progressive era, for example, John Dewey and others proposed that newspapers be established as nonprofit and noncommercial enterprises, supported by endowments like universities, and managed through direct public election (or election by the workers) of their officers. Even press magnate Joseph Pulitzer broached the idea of converting his newspapers into nonprofit trusts to be run like universities, but he backed down, one suspects, when his heirs got wind of the idea.

The less radical solution is to accept the existence of the corporate media giants, seek to regulate at least the broadcasters, and then tax the media giants or use public monies to establish a viable nonprofit and noncommercial media system that can service the needs of those citizens unable to own media corporations. But proposals like these have met with significant corporate opposition and concerns that they would let the government control media to an unacceptable extent, no matter how the nonprofit media system might be structured. From the Progressive era to the present day, the corporate media giants have fanned this flame, using their immense resources to popularize the notion that a gulag-style, darkness-at-noon media system is the only possible alternative to the corporate, commercial status quo. Hence any challenge to their power was a challenge to democracy. It may well be that the various commercial media industries—from newspaper publishers to broadcasters to film studios to advertisers—have been the foremost practitioners of public relations in this century. Anything more than marginal structural media reform, it is clear, cannot be successfully implemented unless it is part of a broader political challenge to the business domination of U.S. society.

Broadcasting, on balance, offered the most hope for those who wished to see a First Amendment committed to democratic media, as the limited number of possible channels meant that there was no escaping that the government would determine who would broadcast and who would not, and the terms under which they would broadcast. All Supreme Court decisions have affirmed the right of the government to regulate broadcasting in a manner that would be unconstitutional with the print media. In broadcasting, at least, the First Amendment has formally been acknowledged to be the property of viewers and listeners as much as licensed broadcasters.

Broadcasting provided the Waterloo as such for Meiklejohnian absolutism. In the late 1920s and early 1930s, the government in effect turned over the very best slots to a handful of private commercial operations including NBC and CBS, with virtually no public or congressional debate on the matter. Sections of the U.S. population were appalled by this giveaway and the resulting commercial carpet bombing of the publicly owned airwaves. In the 1930s the ACLU, inspired by its mentor Meiklejohn and with the active encouragement of Dewey, was so alarmed by the explicit and implicit censorship in corporate and advertiser control of radio—especially against labor and the left—that it argued that the very system of commercial broadcasting was a violation of the First Amendment. For most of the 1930s the ACLU worked to have the government establish a nonprofit and noncommercial radio system that would foster more coverage of social issues and public affairs, greater exchange of ideas, and diversity of opinion. The ACLU only backed off from this position when it became clear that corporate power was entrenched and unchallengeable. After abandoning its commitment to structural reform, the ACLU went from being proponents of an aggressive regulation of commercial broadcasters in the public interest to being ambiguous defenders of the commercial broadcasters ability to do whatever they pleased to maximize profits without government interference.10 Eventually many liberals connected to the ACLU and elsewhere began to concentrate on defending the First Amendment rights of commercial broadcasters to censor material as they saw fit.

Since then the ACLU and the liberal community in general have shown increased willingness to include commercial activities under the rubric of the First Amendment, even if their relationship to political democracy is weak or nonexistent. When the line between what is commercial and what is political is muddled, as it has become over the course of the twentieth century, absolutists and civil libertarians have two options. One is to extend the First Amendment to include more commercial fare, and the other is to narrow the First Amendment down so that it only covers noncommercial and even nonprofit speech. The former course offends no one in power and comports to the existing social structure, hence requiring no social change. The latter course goes directly counter to the trajectory of the political economy, hence demanding an explicit commitment to sweeping institutional change in the media industries, and placing one in direct conflict with dominant media and corporate power. The latter course regards the First Amendment as a fundamentally radical statement, not a fundamentally conservative one. This is the logical trajectory of Meiklejohnian absolutism, and its decline mirrors the general decline of the democratic left in the United States.

Conclusion

As impractical as Meiklejohnian absolutism seems today, its analysis hit the bullseye. As Meiklejohn feared, we are losing our capacity to distinguish public life from the commercial realm, with public life suffering as a consequence. It is a primary factor in the raging depoliticization and atomization of social life. Indeed, this is a theme that resounds in some of the most penetrating social criticism, ranging from C. Wright Mills and Jurgen Habermas to Noam Chomsky and Robert Putnam. It is a crisis that the proponents of extending the First Amendment to all campaign contributions and commercial speech are incapable of addressing, so it is one they dismiss as irrelevant. As one legal scholar has noted, in the nineteenth century the image of the market was used to expand the boundaries of free speech, whereas in the 20th century the image of free speech has been used to expand the power and terrain of the market.11

In the hands of the wealthy, the advertisers and the corporate media, the new-fangled First Amendment takes on an almost Orwellian caste. It defends the right of the wealthy few to effectively control our electoral system, thereby taking the risk out of democracy for the rich, and making a farce of it for most everyone else. These semi-monopolistic corporations that brandish the constitution as their personal property eschew any public service obligations, and claim that public efforts to demand them violate their First Amendment rights which in their view, means their unimpeded ability to maximize profit regardless of the social consequences. Indeed, the media giants use their First Amendment protection not to battle for open information, but to battle to protect their corporate privileges and subsidies.12

This points to the extraordinarily unprincipled nature of the ACLU’s present position on the First Amendment. The tragedy of this interpretation is not that it regards government as the sole enemy of democracy. It is that it spends all its time jousting with government when regulation might possibly challenge the prerogatives of the wealthy, but steadfastly ignores the widespread activities of the government to shape the marketplace of ideas on behalf of corporate and commercial interests. Hence the fact that the federal government has turned over valuable radio and television channels to a small number of commercial firms at no charge and with virtually no public debate is not considered a violation of the First Amendment, or a matter of concern to civil libertarians. Yet this activity has put distinct limits on the range of ideas that could emanate from the resulting broadcasting system.

And the fact that the U.S. government subsidizes a top-secret national security apparatus to the tune of at least $30 billion per year—with a significant amount of its work going to the dissemination of propaganda and the harassment of political dissidents—is also not apparently a First Amendment concern. Indeed, recent evidence suggests that the ACLU’s Washington office effectively cooperated with the CIA’s efforts to censor the writings of its former employees in the 1980s.13 In Meiklejohn’s perspective, the very existence of the CIA signified that this was not a democratic society, because the rulers had a weapon of immense power unaccountable to the citizenry. The modern day corporate-friendly absolutists, on the other hand, prefer to evoke a self-righteous posture celebrating their courageous stance on behalf of freedom, all the while never saying anything that would anger anyone in power. And nowhere is that more apparent than in the case of extending First Amendment protection to all forms of political contributions.

It would be comforting to think that we could depend on the Supreme Court to do the right thing and reverse Buckley v. Valeo and reclaim the First Amendment for democracy, but we cannot. This court was appointed by politicians who benefit from the status quo, and it has already shown a lack of backbone on related issues. And the courts tend to be conservative institutions, generally reversing earlier decisions only when they see significant changes in social attitudes on an issue. The job for progressives and activists, then, is to raise holy hell about our corrupt electoral system and our bogus corporate media system, and make it a key target of a social movement that takes direct aim at social inequality and class privilege. We need to link up electoral reform with media reform as well, so that we can create the type of accountable nonprofit and noncommercial media sector that can actually stimulate public participation. And in the process of doing so we need to pressure the ACLU to return to its roots as a force for justice and democracy, or expose it as a liberal fig leaf for plutocracy.14 As the old saw goes, if we create pressure in the streets, we might get some results in the suites.

Notes

  1. See C. Edwin Baker, “Giving the Audience What It Wants,” The Ohio State Law Journal, vol. 58, no. 2 (1997); pp. 311-417.
  2. For an elaboration of the ACLU position, see Laura W. Murphy, “We Refuse to Sacrifice the First Amendment in a Desperate Attempt to Adopt Reform Legislation,” The Progressive, vol. 61, no. 12 (December, 1997), pp. 20-22.
  3. Alexander Meiklejohn, Political Freedom: The Constitutional Powers of the People (New York: Harper & Brothers, 1960).
  4. See Thomas I. Emerson, Toward a General Theory of the First Amendment (New York: Random House, 1963).
  5. See Richard N. Rosenfeld, American Aurora (New York: St. Martin’s Press, 1997); Stanley E. Flink, Sentinel Under Siege (Boulder: Westview Press, 1997).
  6. See Dan Schiller, Theorizing Communication: A History (New York: Oxford University Press, 1996).
  7. See Herbert J. Gans, Deciding What’s News (New York: Pantheon, 1979).
  8. See Jerome A. Barron, “Access to the Press—A New First Amendment Right,” Harvard Law Review 80 (1967), pp. 1641-1678.
  9. Miami Herald Publishing Company v. Tornillo, 94 S. Ct. 2831 (1974), pp. 2840, 2841.
  10. I cover this entire episode and the ACLU’s transformation in Robert W. McChesney, Telecommunications, Mass Media, and Democracy: The Battle for the Control of U.S. Broadcasting, 1928-1935 (New York: Oxford University Press, 1993).
  11. See David Kairys, “Freedom of Speech,” The Politics of Law: A Progressive Critique, ed. David Kairys (New York: Pantheon, 1982), pp. 140-171.
  12. See Ben H. Bagdikian, The Media Monopoly, 5th ed. (Boston: Beacon Press, 1997).
  13. Angus Mackenzie, Secrets: The CIA’s War at Home (Berkeley: University of California Press, 1997).
  14. A strong vocal opposition to the ACLU position has now emerged within the ACLU itself; today this is the most divisive question in the organization, a healthy development.