“Ideas matter and they have enduring power.” – Jerome Barron
Today, Jerome A. Barron, legal scholar at the George Washington
University School of Law, delivered a lecture to mark the 40th
anniversary of a groundbreaking Harvard Law Review article he wrote in
1967 entitled “Access to the Press – A New First Amendment Right.” In
this piece, Prof. Barron laid out a compelling argument for why the
First Amendment should be interpreted as covering a “right of access”
to the media as a direct remedy to the concentration in ownership of
the press by private entities. In light of the growth of the internet
and the increased concentration of media ownership, Barron’s assertion
seems more pertinent than ever.
Again IANAL, but my colleagues assure me that Prof. Barron’s article has had impacts in the legal and media activist fields far beyond a typical journal piece. In reading through his writings, Barron’s words ring true today. Here are some excerpts:
The mass media’s development of an antipathy to ideas requries legal intervention if novel and unpopular ideas are to be assured a forum – unorthadox points of view which have no claim on broadcast time and newspaper space as a matter of right are in a poor position to compete with those aired as a matter of grace.
A realistic view of the first amendment requires recognition that a right of expression is somewhat thin if it can be exercised only at the sufferance of the managers of mass communications.
The test of a community’s opportunities for free expression rest not so much in an abundance of alternative media but rather in an abundance of opportunities to secure expression in media with the largest impact.
The avowed emphasis of free speech is still on a freeman’s right to “lay what sentiments he pleases before the public.” But [Justice] Blackstone wrote in another age. Today ideas reach the millions largely to the extent they are permitted entry into the great metropolitan dailies, news magazines, and broadcasting networks. The soapbox is no longer an adequate forum for public discussion. Only the new media of communication can lay sentiments before the public, and it is they rather than government who can most effectively abridge expression by nullifying the opportunity for an idea to win acceptance. As a constitutional theory for the communication of ideas, laissez faire is manifestly irrelevant.
What is required is an interpretation of the first amendment which focuses on the idea that restraining the hand of government is quite useless in assuring free speech if a restraint on access is effectively secured by private groups.
This afternoon, Prof. Barron addressed an audience of about 150 scholars and lawyers at the conference "Reclaiming the First Amendment: Constitutional Theories of Media Reform” held at the Hofstra Law School, discussing his assertion 40 years ago in light of the current media structures. Here are some of the points Prof. Barron made:
- Free Speech and the Web: The rise of the World Wide Web has given us an opportunity for individual free speech. Technology has done for access what the law refused to do. Individual access to the press is possible on a scale not possible 40 years ago. What happens on the web travels to the traditional media and acts as a response to the media.
- Newspapers: The rise of the web has caused the decline of newspaper press, and it may be its rescuer. It may be a new source of revenue and facilitate participatory forums in ways that letters to the editor can not equal.
- The Web and Media Concentration: Has the web ameliorated the concentration of ownership of traditional media? The media world is no longer “those who speak and those who are spoken to.” Technology has made participation in public debate of ideas possible. There are armies of bloggers – but they don’t rival TV networks. As one TV exec said “If you want 30 million people, you can’t get that anywhere but TV.”
- Digital Divide: The internet does not reach everyone yet. The Digital Divide is both a generational gap and an economic gap.
- Censorship of the Net: There is building pressure to censor the internet. The Internet is largely free, but there are threats. I.e. the subpeona from the US government to get information from Google on its users and US companies like Google and Yahoo and their relationship to China.
- Net Neutrality: This would preclude ISPs from offering video only from their sources. But this is a very complicated issue.
Dr. Barron concluded with a challenge for the audience: A few major sites and search engines direct a lot of the audience of the internet. Should a small number of companies that own major internet resources have first amendment obligations?