Whose First Amendment Is It?


Ever wonder why freedom of the press was singled out for specific protection in the First Amendment? After all, the Free Speech clause obviously protected the press as well as other citizens. Why include a specific provision about freedom of the press?


The answer is that the architects of our constitution believed that self-government requires the free and uninhibited flow of  information. They wanted to be extra-certain the government kept its hands off that information. So while the First Amendment protects all expression, the free press provision emphasizes the importance of protecting the specific kind of expression we call “journalism.”


Note that the constitution doesn’t protect persons called “journalists.” It protects the act of journalism. (It’s a distinction contemporary media mavens don’t seem to recognize—but that’s a subject for a different talk.) The activity of “journalism” ensures the availability of information that is in the public interest. Anyone who provides that kind of information, that kind of reporting—whether for newspapers, magazines, radio, television or blogs—deserves to be protected against government supression, intimidation or reprisal. People engaged in the act of journalism are entitled to that protection whether the news is being delivered with a quill pen or a computer.


The Founders were anything but naïve. They recognized that what they called the press and we call the media got it wrong a lot of the time. The newspapers of their own time, called the “penny press” were partisan rags that make Fox News and Air America look positively statesmanlike by comparison. But the founders also knew that only from the freest, most robust exchange of argument, information and gossip would truth ultimately emerge. They were comitted to free markets for goods and services, and they believed that only an equally free marketplace of ideas could ultimately protect individual liberties.


Freedom of Speech and Freedom of the Press don’t rest on the notion that ideas are unimportant, that “sticks and stones can break my bones, but words won’t hurt me.” The Founders knew that ideas can be both powerful and dangerous. But they believed that giving the government power to determine which ideas may be transmitted or expressed was infinitely more dangerous.


The Founders were could hardly have forseen the evolution of the press and the contours of our contemporary media landscape. Today, threats to the free exchange of information are very different than they were in Revolutionary times. And the greatest threats, ironically, grow out of the expansion and changing nature of the marketplace itself.


  • The availability of hundreds of cable channels and a vastly expanded “newshole” has led to intense competition for readers and viewers. That competition has encouraged news coverage that is more properly labelled “infotainment”—a new twist on the old newspaper adage “if it bleeds, it leads.” Today, sensationalism rules: we get endless coverage of missing blonds in Aruba, Brangelina and Tom Cruise; we get panels of so-called “commentators” screaming at each other, and pundits who sell their books by saying outrageous and self-evidently ridiculous things in an accelerating effort to grab headlines and increase sales. “Faux news” doesn’t just describe the Daily Show—which is often a lot less “faux” than some of the supposedly straight news programs.
  • Far more insidious is the fact that ownership of all our media—newspapers, magazines, radio and television stations—has become concentrated. Five international mega-corporations now control most of the American media—most of what we read, hear and see. The government doesn’t control the news—Rudolph Murdoch, Viacom and Disney do. The concerns this raises for accurate public information can be seen in the recent airing of a “docu-drama” by ABC—owned by Disney—that had been condemned as totally fabricated by Republicans and Democrats alike, despite protests and petitions to correct what appeared to be a politically motivated effort to revise the history of 9-ll.


The medium with the most obvious ability to counter these trends is the internet—it gives each of us access to mountains of uncensored, uncontrolled, unfiltered information. The internet carries its own set of challenges: credibility of sources, sheer volume of information available, the further enabling of our ability to tailor the information we receive to our political preconceptions—but its utility and promise far outstrip those challenges. The Net lowers barriers to participation in public discussion. Talk about “power to the people”—the internet is an unbelievably powerful threat to concentrated power, whether that power is being exercised by the government, as the founders feared, or by private monopolies.


That promise is why, right now, I think the biggest threat to our constitutionally protected right to receive and disseminate information is contained in a Senate Telecommunications bill sponsored by Alaska Senator Ted Stevens—he of “bridge to nowhere” fame. Buried in the technical jargon of that bill is a provision that would have profound effects on all of us who participate in the marketplace of ideas, but especially on the less powerful—and members of more marginalized communities.


Currently, most web sites are able to be accessed at a fairly fast speed.  Any person can create a blog or web site, and it will be just as available to people all over the world as the sites of the largest companies.  The large cable and telephone companies are proposing regulations that would change that. This proposal would let Internet providers charge content providers money for faster access.  Corporations or wealthier individuals could pay to have their web sites load faster. (One person I know calls this “protection money,” because the telecom giants currently have a monopoly on the telephone and cable lines that the Internet runs through. It would be like someone owning the streets, and letting Hummers use them for free, while charging Yugos to drive on them.) 


The bottom line is that some web sites would become Yugos on that road we call the World Wide Web–relegated to the Internet’s bike lane if the companies that own the road are successful in getting this measure passed. The proposal would let ISPs and other web businesses pay extra to receive preferential treatment for their data packets carrying everything from video to music to text over the Internet. Such “packet prioritization” would deliver a more responsive Web to visitors to those sites–an especially valuable perk for high-bandwidth services like streaming video, but important to others as well.


Think about it—how patient are you with slow-loading sites? I’m not. If something is taking too long to load, unless it’s something I really, really want, I don’t wait. I go elsewhere. It’s not a phenomenon limited to the web—how often do you return to restaurants or retail stores with poor service?


Until now, one of the great benefits of the internet has been its equal accessibility. Before the internet, the costs of being heard—the “entry costs” of having a meaningful voice in public debate—were prohibitive. Want to start a newspaper? It’ll cost you millions. What to get a book published? Not easy—as I can attest from experience. But want to start a web site? All you need is a computer, web access and time. Your only limit your persuasiveness, whether you have a message that others want to hear.


The Web is the ideal “marketplace of ideas,” where those expressing ideas that may not be “mainstream” or “popular” or sufficiently in line with majority beliefs can compete on an equal footing. The web has been an enormous boon to minority opinions and voices.


That’s what “net neutrality” is: equal access to the marketplace of ideas. An ability to penetrate the official “echo chamber.” And that’s what is under assault.


If you care about equality, about journalism, about the First Amendment, you should care about preserving net neutrality.