Pushing Media Policy Out of its Rut

This piece is the third installment of a biweekly series written by David A. Foster (Center bias), based on his new book, Moderates of the World, Unite! Read the first post in the series. 

Is freedom of speech an end in itself? A human right that no government should ever be able to take away? Or is free speech for influencing elections and policy? Is it simply a gift from our divinely-inspired Founders? Is it all of these things?

On occasion, the left loudly demands its right to protest against oppression. But most of the passion and clamor for free speech today comes from the right. Its main motivations are about resistance to political correctness. For a few, free speech is even viewed as the last hope against an apocalypse where woke overlords summon the Antichrist and force all of us to use pronouns.

Freedom of speech was in fact a major civilizational achievement, and it is one of the few things that pretty much all Americans support and are proud of. Speech in the U.S. in 2024 is the freest in the world and the freest that it has ever been in history—by far. It is a triumph, but also a problem.

This series of articles will propose a number of major initiatives and reforms to address trends of the past three decades that have led to our deranged public discourse. In the previous article, I described the ways the invocation of the First Amendment is used to preserve the power of media and tech corporations. I suggested that Congress is afraid to take corrective action because of the public’s beliefs and attitudes towards the First Amendment. 

In this article, I’ll provide a few key facts about the First Amendment, and I’ll show the gulf standing between that reality and the popular free speech ideology. The analysis may serve to illuminate ways to provide an “assist” to Congress. 

History, Scope, and Purpose of Free Speech

The speech environment at the time of America’s founding was obviously very different from today’s. Moreover, the founders’ assumptions about free speech were different from the conceptions that have evolved since.

Our modern constitutional understandings of free speech did not really emerge until the 1920s, after the repeal of a shameful Sedition Act targeting anti-war activists. Subsequently, the Supreme Court began to strike down state and federal restrictions of speech. Ever-wider speech protections—even for deliberate public falsehoods and for corporate political spending—have since accelerated.

Meanwhile, a concept known as the “marketplace of ideas” (MOI) became the backbone of First Amendment jurisprudence, persisting to this day. Many educated citizens are able to identify the MOI as the societal purpose for free speech. 

The MOI theory holds that truth emerges if all voices are heard. However, there are strong reasons for doubt. For one, this marketplace could only work if the “consumers” of ideas prefer true ideas. However, from advances in cognitive science (as well as obvious media consumption patterns), we know that confirmation bias leads people to seek out information that confirms their own beliefs.

Another problem is that there is no role for expertise in the model. In the MOI, the opinions of an expert—whether in science, policy, economics, or political theory—are no more useful than any other opinions, however ignorant or naïve.

Meanwhile, the media environment over the past three decades has experienced dramatic changes. The internet has given a microphone to every citizen, and has forced political media into a desperate competition for attention. Filter bubbles on social media and echo chambers in a fragmented media bazaar often ensure that consumers of dubious ideas never hear contrary speech.

All of it has led to permanent, free-for-all shouting contests in the public sphere, in which moderate voices are chased away. Is this what the Founders wanted the First Amendment to accomplish?

We must remind ourselves what the purpose of free speech really is. The prescription was best articulated by Alexander Meiklejohn: its purpose is to support functional democratic discourse. Meiklejohn taught that letting everyone speak was of secondary importance to ensuring that all worthwhile ideas are heard.

Stoking the Fire

Unfortunately, in popular discourse, free speech is a trump card that always ends discussion. Self-proclaimed free speech absolutists find it easy to gain popularity and rarely encounter any resistance.

Corporations and libertarian capitalists have leveraged these sentiments in recent decades to obtain unprecedented, preposterous rights for “corporate expression” based on the First Amendment. They fund organizations like the Federalist Society and the Foundation for Individual Rights and Expression (FIRE); the former has influenced the Supreme Court’s First Amendment jurisprudence, while the latter supplies intellectual arguments and litigation resources.

Luminaries at FIRE encourage free speech absolutism by providing “slippery slope” arguments for why insufficient vigilance could lead to (who knows!) a police state or another Sedition Act. It bears noticing that slippery slope arguments are trivially-easy to assert (“you can’t say that it could never happen!”) and extremely difficult to refute (“yeah, theoretically possible, but, c’mon, so incredibly unlikely.”) Members of the general public typically do not notice this, but many do love the image of freedom from government coercion.

Meanwhile, the libertarian makeup of the Supreme Court also encourages an expansive view of corporate personhood, leading to a highly imbalanced public discourse that is dominated by money. Further, research by R. George Wright has found that the Supreme Court’s First Amendment-related rulings habitually start with glowing tributes to the value of free speech... and then summarily rule in favor of speech-claimants. Without even a pretense of considering competing constitutional priorities.

Individual Speech vs. the Speech Environment

When considering the First Amendment, there is an important distinction between individual speech and the speech environment. While speech is from individuals, the environment includes social norms, media companies, and Big Tech.

The environment can be thought of as an “infrastructure” for democratic discourse, and we do have past examples of government intervention. For example, the Federal Communications Commission and Federal Trade Commission have imposed a wide variety of media ownership rules for local television and radio stations, newspapers, and even national broadcast networks in order to prevent monopolies and to promote diversity in media.

Of course, in the current age, most media and politics have been nationalized, and, thanks to the internet, the local journalism business model is dead. Citizens will never again be “captive” to local/regional ownership, but rather are now easily sucked into nationally-run echo chambers and filter bubbles.

It’s important to stress that echo chambers and filter bubbles are not some passing technological episode. They are permanent. First Amendment jurisprudence is now operating with an obsolete logic. It is an occasion for major policy reorientation, not for incremental or “Whack-A-Mole” quick fixes.

Congress has neglected its responsibility to support a functional democratic infrastructure. It should never restrict the speech of individuals, but it must make adjustments to the system—to the speech environment.

Incidentally, I did leave out another very legitimate purpose of free speech: as a safety valve that prevents citizens’ anger from getting out of control (e.g., into violence or total alienation). Let’s always let individual citizens say or post anything they want. I’m not sure, though, that this safety valve rationale applies to corporate persons!

RELATED: Threats to Democracy: Censorship and Speech Suppression

Helping Congress to Give Us a Better World

Did your last few minutes of reading persuade you of the absurdity of the current state of American free speech ideology? If so, is there any particular reason why most other citizens could not be similarly educated and persuaded?

One obvious approach is to elevate the topic in college curricula in courses such as Media Literacy, Political Science, Policy and Society, and Government. This alone would not change public attitudes overnight. However, over time, it would build a constituency for change. And it would shift the Overton Window away from free speech absolutism and corporate impunity. As Congress senses this shift, it will feel encouraged to enact bolder and bolder reforms.

That completes the preliminary discussion for this series. Next, we move on to the six proposed initiatives and reforms that take seriously our new public discourse environment and that match the scale of the problem. Each proposal will be described in a separate article, published biweekly.

It’s undeniable that major shifts in First Amendment jurisprudence cannot happen quickly. Accordingly, the majority of my proposals do not offend the spirit of the First Amendment, and they judiciously pick areas where the impositions on corporations couldn’t be regarded as excessive. In short, they realistically could be enacted tomorrow.

But the combination of (a) public education and (b) enactment of some of these proposals would have more profound effects in the long term, enabling powerful reforms. It would promote a less purist and more pragmatic interpretation of the First Amendment—for the public and for the world of constitutional jurisprudence.