The great irony of concerns about “activist judges” “writing the law” is that most constitutional law is, by necessity, judge-made. Constitutional dictates are generally vague but, when they apply, absolute, forcing judges to make tough calls that the Constitution almost purposefully avoids. This flexibility is baffling in the short term, but liberating stretched over the centuries.
The First Amendment embodies this tension. Its ban against government interference in speech is absolute — “Congress shall make no law…” — but its operative term, “speech,“ remains impossibly vague. Seriously, what’s a “speech”? More than a feeling, less than a Platonic dialogue?
Whatever it is, it’s no patriotic puffery to say America has the most expansive speech protections in the free world. We do. But it doesn’t have to be that way: other comparably free states explicitly ban speech that is worse than useless, like speech tending to “stir up religious hatred.” Should we? And, more importantly, why don’t we?
Like other profound questions — e.g., “which bear is best” — there are basically two schools of thought. We permit “bad speech”: (1) to encourage self-governance, because citizens need all information available to them to make informed decisions, even bad information, or; (2) to further the “search-for-truth,” a sort of laissez-faire approach to speech which argues that, in the clash of ideas, truth always wins, meaning objectively bad ideas are either no threat, or useful antitheses, helpful in pushing towards a synthesis.
Both theories have serious flaws. If the First Amendment need only protect speech necessary for good citizenship, the self-governance rationale simply changes the battlefield from what constitutes “bad speech” to what constitutes “good citizenship,” therefore failing to answer the question. And the “search for truth” rationale makes sense — bad speech does lose out — but only over the long term. The really, really, really long term. In the short term, bad speech often wins.
That brings us to Glenn Beck. I assume at the outset this conclusion: Beck’s show is “bad speech” — calculated to inflame rather than inform, in a way that indirectly or, now, directly, can cause loss of life (if you don’t accept that premise, fine: keep reading, but substitute Beck’s name for a hypothetical person presenting those problems).
Beck, or our hypothetical Beck equivalent, as I’ve argued before, has “checkmated the First Amendment.” Now more than ever, his survival as a television force proves that the short-term marketplace theory flat-out doesn’t work. Or, it doesn’t work anymore: in today’s media environment, he’s suffering for loss of advertisers, but Fox can absorb the blow. And, his philosophy has a kernel of useful ideology in it, but set against his track record of historical revisionism and outright mendacity, that kernel stands to naught. Beck is a hole in First Amendment theory: but how do we plug it, even if we accept that he doesn’t merit America’s hyper-strong speech protections?
That typical bogeyman of the right, the Fairness Doctrine, is a non-starter. Apart from being political suicide and presumptively unconstitutional, the Fairness Doctrine is, by this time, impractical at the network-by-network level, and wouldn’t answer the problem, anyways. The concern isn’t that “good speakers” (on all sides of the spectrum) lack for outlets — they have plenty — it’s that people like hearing insane lies, and Fox can afford to subsidize the practice after it stops being profitable.
The answer to the problem, so stated, may therefore be to “unleash the free market,” both in the economic and dialectic senses. The real problem with Fox isn’t that their pundits are liars: it’s that they’re unaccountable liars. As an ideological outlet, Fox has every reason to push a popular money-loser like Beck to secure their partisan goals. They can write off the loss against other gains.
If size is the problem, rolling back the clock on Bush’s deregulation of corporate media may be a good first, content-neutral step towards terminating those incentives: restrictions on ownership would dilute the influence and corresponding financial immunity of major broadcasters. It’s not “socialism,” or command-economics in any sense. It’s quite literally a market-centered reform, geared to inspire rather than co-opt competition. Capped media ownership, at sufficiently low caps, would render corporations more accountable to standards of public decency.
Admittedly, this style of reform would require us to revisit, and revise, our “hands off” policy towards speech. But despite its centrality to the American system, the First Amendment remains, ultimately, a means to an end — the maintenance of a strong democratic system. We may not trust the government to regulate political speech — and thereby the manner of its own selection — but to echo an argument formulated first by better minds than mine (Profs. Bollinger & Stone), the incentives of unelected entrepreneurs are no less pure than those of politicians, especially when they become, in essence, political adjuncts. It’s time to re-evaluate.