Why do we have a First Amendment — and, particularly, the “freedom of speech” (whatever that means)? Because the Amendment is vague, thus permitting (and requiring) judges to consider policy when applying it, different answers to this basic question compel different legal results. If we conclude that the Amendment exists to vindicate freedom for its own sake, it’s hard to justify banning any speech, ever, unless it creates an extrinsic harm. Given that justification, no-one would doubt a legislature’s ability to ban child pornography, but that’s about where their authority would stop. Even the regulation of true subversive advocacy (“Let’s assassinate the President — now.”) becomes questionable.
If, on the other hand, we conclude, as Meiklejohn did, that the right to free speech is primarily justified by its instrumental value — namely, by freeing the people to speak their minds, we prevent the intellectual stagnation that characterizes theocracies and other restrictive cultures — the reach of the Amendment becomes a question of balance. This kind of rule would forbid the government from taking a stand on individual issues (no true censorship), but permit regulation of objectively harmful speech, and encourage the generation of rules that, while incidentally restricting speech, channel the public discourse towards productive goals.
The jurisprudence we have tends to approximate the former rule, at least in application. Consequentially we look very skeptically at any government participation in the “marketplace of ideas” — even when it would probably improve the quality of public discourse. For example, the confluence of Citizens United and the death of serious media ownership caps functionally obliterates whatever “intellectual antitrust” law we ever had. We no longer have any real safeguard against a single actor, or small set of actors, acquiring a monopoly on public thought.
There’s not inconsiderable evidence that we’re worse off for that, too. Narrow presentation of major political issues follows as a direct consequence of the narrow media options. The Obama administration can be forgiven, then, for thinking of ways to salvage the admitted public value of independent newspapers, and investigative journalism as a concept, but — and on this, Hot Air comes close to being right on something (ugh) — that’s all for naught if a valuable medium has to take government money to maintain its existence. Those and similar suggestions in a recent FTC working paper on the subject (pdf) will have to go. But others are worth considering — tax breaks to news organizations, for one, where balanced with a serious second look at market consolidation rules, could encourage new, independent, and competitive news entities, to counter the monopolistic and anti-intellectual power of media monoliths. This will mean making peace with the somewhat counterintuitive notion that government regulation over the processes of content production can, when done properly, validate capitalist values like competition, thus energizing the national discourse while undermining and de-necessitating actual government control over the substance of the media. After all, no-one actually wants content regulation.
For years we’ve convinced ourselves that a rigid formalism, opposing all government influence on the media, is the only way to prevent the main harm to be avoided by the First Amendment — the notion of enforceable orthodoxy, which simultaneously stagnates and restricts the intellectual culture that a democracy demands of its citizens. But if corporate monopolies can, de facto if not de iure, create the same harm by dominating content, it’s time to abandon that brightline and experiment. That may mean tolerating some mistakes along the way — so long as they’re made for the right reasons.