The Right to Be Heard
Globalization versus the First Amendment
In 1989, when British Columbia’s logging industry flooded the public airwaves with a massive PR campaign, Kalle Lasn and his colleagues developed their own campaign to present an environmentalist perspective. When they took their ads to the TV stations, however, they found that nobody would sell them airtime.
Lasn mobilized, and soon hundreds of people were calling the Canadian Broadcasting Corporation (CBC) demanding to know why loggers could buy airtime but environmentalists couldn’t. CBC still refused to run the environmental messages, but the public pressure led them to pull the industry campaign.
Thus was born the Adbusters Media Foundation. Since that time, Adbusters [http://www.adbusters.org] has developed dozens of messages attacking consumerism. But in both Canada and the US they have consistently met with refusals to sell them airtime.
The First Amendment to the US Constitution declares: "Congress shall make no law... abridging the freedom of speech, or of the press." Unfortunately, the prevailing "marketplace conception" of the First Amendment assumes that a free market in speech will automatically ensure that all voices are heard and that the truth will win out.
While this concept may protect the right of the individual to speak on a street corner, in the modern world – where a few huge conglomerates dominate the mass media marketplace – the concept is outdated.
Today, those with the most money can dominate the public airwaves and thereby win elections. In his book, Money Rules, Anthony Gierzynski presented data on contributions to federal campaigns during the 1996 election cycle. Contributions from businesses and professionals totaled 11 times the amount contributed by labor and about 300 times the amount contributed by environmental groups.
Adbusters has tried without success since 1993 to launch a First Amendment legal action against NBC, CBS and ABC for refusing to sell them airtime. They are considering taking their case to the World Court, citing Article 19 of the UN’s Universal Declaration on Human Rights, which guarantees that: "Everyone has the right... to freedom of opinion and expression; this right includes freedom... to seek, receive and impart information and ideas through any media and regardless of frontiers."
Another tool used to silence dissident voices is what psychologists refer to as the "familiarity effect." Through sheer repetition, a claim gains acceptance and credibility. When groups are the targets of massive attack campaigns, the public eventually starts to believe the attack ads and tunes out the message of the targeted group. When these groups are compelled to use their scarce resources to respond to attacks, they have little money left to present their own message.
The central question, as emphasized by Alexander Meiklejohn in his book, Free Speech and Its Relation to Self-Government, is whether the marketplace conception of speech is adequately fulfilling the function of enhancing democracy. Are voters well informed? Is there uninhibited, robust and wide-open debate on issues of public importance? Can all groups gain a full hearing?
In the wake of the Seattle protests against the World Trade Organization (WTO), an increasing number of people are coming to realize that it will not be possible to end corporate dominance unless the public and public interest groups can be heard.
Access to the Public Airwaves
A 1999 study by David Croteau, William Hoynes and Kevin Carragee of Fairness and Accuracy in Reporting examined the sources used in public affairs programming on public TV. Corporate representatives constituted 26.7 percent of sources, government officials 25.6 percent, professionals 25.6 percent (e.g., journalists and academics), Wall Street 9.6 percent, the general public 5.7 percent, citizen activists 4.5 percent, and all others 2.2 percent.
While microradio and other alternatives are important, the primary struggle for reform must center on access to airtime in the mass media. A right to be heard will mean little unless public interest groups insist on a right to present their own perspectives fully, without interruption, in their own voice.
There is a parallel with the practice of mediation. When people enter mediation, each person has an opportunity to present his or her own perspective fully and without interruption. One person speaks while the other person patiently listens. This is a matter of basic decency and respect. Unless each person is heard fully, it is not possible to take the next step: searching for a solution that adequately meets everyone’s interests.
Public television has mandate to provide a voice for groups that may otherwise be unheard. As part of a package of reforms, citizens’ juries might be used to hear complaints. A public interest group could claim that it has not had adequate opportunity to be heard in prime time, fully and without interruption. The jury could then allot compensatory broadcast time. The group would cover the production costs but could recoup these costs with an on-air fundraising plea.
A few hours of access per year may not seem like much, especially considering that public television typically has an audience share in the neighborhood of 2 percent. But a single hour-long documentary on environmental concerns, animal rights, peace and social justice issues could have a profound effect on thousands of people.
Taking the Initiative Process
The biggest roadblock to reform is the marketplace conception of speech as embodied in the 1976 Supreme Court decision, Buckley vs. Valeo. In this ruling, the court held that money "enables" speech and that limiting campaign spending violates the First Amendment right to free speech.
Buckley aims squarely at access to the media. It holds that moneyed interests’ right to be heard is so important that it may not be constrained. With Buckley, the Supreme Court stands up for the right of the wealthy to be heard, although their wealth may silence others.
In the edited volume, If Buckley Fell, New York State University Law Professor Burt Neuborne laments: "At some point, uncontrolled, massive political spending stops being pure speech and becomes an exercise in power.... The failure to acknowledge the compelling need to limit campaign spending in order to restore a modicum of political equality to American democracy may well have been Buckley’s gravest mistake."
The initiative process was intended to be a mechanism by which the average citizen could directly participate in the creation of law. It can only work effectively if people are able to participate fully and as equals. This is not a possibility if media access is determined by wealth. The people cannot rule if they cannot be heard.
Much of the necessary change could occur within the framework provided by Buckley. For example, Buckley allows public financing of elections and reduced-price or free airtime. While Buckley does not allow limits on campaign spending, it does allow limits on the size of campaign contributions when those contributions may lead to corruption or even the appearance of corruption.
Ultimately however, Buckley must be overruled. Once the adverse effects of unlimited campaign spending on speech are acknowledged, it is clearly consistent with the Constitution to limit campaign spending in order to optimize speech. Nothing in the Constitution suggests that media access should be determined by wealth.
A state initiative could propose a combination of campaign spending limits, discount broadcast airtime, public financing and a process for determining whether proponents or opponents of a particular initiative receive sufficient opportunity to be heard. Matching funds could be provided to assure that, if one side exceeded a voluntary spending limit, the other side would receive funds from the state in that amount. Each side would be free to spend as much money as needed to get out its message, but neither side could outspend the other.
The Big Picture
Without a right to be heard, a society cannot make informed choices that take into account the interests of all beings. Without a right to be heard, a few powerful interests can dominate discussion and policy making.
Informative, emotionally compelling, professionally produced programs can reach people in a way that picket signs cannot. Such program can move people beyond reliance on stereotypes and toward serious questioning and thought.
In 1992, the World Scientists’ Warning to Humanity was signed by more than half of the world’s Nobel Prize-winning scientists. The warning emphasized that, without fundamental change, human society would be at serious risk. Yet no TV network reported it and neither The New York Times nor The Washington Post deemed the warning newsworthy. Under such conditions, it should not be surprising that progress in gaining access to the corporate media has been limited.
The struggle for the right to be heard may become the defining social movement of the next couple of decades, and public interest groups have a special role to play in spearheading the movement.
David Duemler works for the Campaign for the Right to Be Heard, a branch of Eugene Peace Works in Eugene, Oregon [http://www.efn.org/~eugpeace].