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THE MEDIA THAT CITIZENS NEED C. Edwin Baker Democracy is impossible without a free press. At least courts and commentators tell us so.1 This consensus, however, floats above crucial, more controversial matters. What type of free press does democracy need and why does democracy need it? If there are inadequacies within the free press, do they reflect bad decisions made by media professionals, such that the prime need is for better, smarter, tougher editors and reporters or better training in journalism schools? Or do inadequacies reflect, at least in part, deeper structural problems? And if governmental policy correctives are necessary to make matters better, what interventions would promote a more “democratic press” - that is, a press that properly serves a society committed to democracy? These questions implicate central issues of constitutional-based theory of freedom of the press. Agreement on two abstractions - that democracy requires a free press and that certain constitutional provisions protect a free press - is relatively easy. But what constitutes “freedom of the press”? That question cannot be answered without understanding the role or purpose of the constitutional guarantee. If press clauses are a structural provision designed either to support or to protect a press that adequately serves democracy, how does this premise affect the interpretation of the Press Clause? Well, that’s the agenda. But how to proceed? To assess the media’s service to democracy requires a theory of democracy. A choice among possible theories will largely reflect why the chooser values democracy, a normative issue about which people inevitably disagree. Although variations may be infinite, three or four rough approaches may capture most people’s view of the normative rationale for democratic government. First, elitist theories of democracy often reflect the somewhat cynical view that the only good thing (although a very important thing) about democracy is that it is better than the next best alternative. Somewhat more optimistically, many people value democracy as the only form of government that respects people’s equality and affirms their autonomy. It embodies the equal right of each person to participate in matters of collective self-determination. Democracy is a political order that respects each person as an equal in her status as a citizen and as a moral agent. Democracy provides a form of public liberty that is inextricably bound to private liberties, whose existence requires, and is required by, public liberty.2 Within the legal and political-theory literature, two dramatically different ways of respecting people’s equality are often described. In a liberal pluralist or interest group conception of democracy, an ideally functioning democratic system is equally influenced by the desires of each person; a well-functioning democracy is the fairest mechanism of aggregating preferences or desires for purposes of making law and policy. In a republican conception, an ideally functioning democracy is open to everyone’s participation in the formulation of collective ideals and public goals; democracy is an open process of defining and advancing the public good. In my full article, the three theories of democracy, describing premises that make each plausible and maybe even appealing are put forward.3 This provides a description of what each theory - the elitist, the liberal pluralist, and the republican theory - require of or hope for in the media. In addition, a fourth approach is described, which I label “complex democracy,” that may be somewhat less familiar, but which I defend and to which I believe the United States constitutional order is roughly committed. Complex democracy claims to express a more realistic empirical, and a sounder normative, perspective than offered by either liberal pluralist or republican democracy. It expects the media to take on the tasks assigned by each of these theories and, in addition, to support the self-constitution of pluralist groups.4 Since these different tasks are sometimes in tension, complex democracy complicates the problem of assessing media performance. It turns out, or so I argue in Part IV of the full article, that this complication restricts the issues that should be resolved constitutionally. Before getting to the constitutional issue, however, one needs to identify the democratic theory implicitly held by several prominent conceptions of journalism, and each democratic theory’s implications for media policy needs to be considered. As commentators repeatedly assert, democracy depends on a free press. But different conceptions of democracy are served by different free presses. This insight has direct significance for the practice of journalism. Even the most intelligent and democratically committed journalists, however, write and report within a communications order structured both by law and by the market. Both law and the market can reward but often also can impede desirable journalistic practices. Even more troublesome are the market forces that bankrupt certain types of media entities, sometimes the very media that democracy most needs. The obvious response, even if politically difficult to enact, is legislation favouring, protecting, subsidizing, or even creating the type of media entities or communication practices required by democracy. Since identifying these requirements depends on the specifics of democratic theory, the foregoing analysis should have significant policy relevance for media law and legislative reform. Finally, there is the matter of constitutional law. The press’s democratic functions provide the best perspective for understanding constitutional guarantees. Elitist democracy and its checking function (a value shared with all other democratic theories) have been most influential in giving the US Press Clause doctrinal content that restricts government power. To the extent another theory of democracy is favoured - I have implicitly claimed that complex democracy is the soundest theory - that theory may provide further content to the US Press Clause. Nevertheless, the primary implication of complex democracy for constitutional interpretation is probably that the Press Clause should be read narrowly. Complex democracy requires a constitutional reading tolerant of structural regulation of the press by government. At any given time, democracy’s primary communicative needs inevitably will be disputed. Complex democracy recognizes that the market could be failing, either by providing a media too homogeneous or too pluralistic, or by corrupting the available versions of either or both. These possibilities suggest that the US Press Clause, and possibly similar press clauses in other national settings, should be read to allow governments to promote a press that, in its best judgement, democracy needs but that the market fails to provide. Notes: 1. Justice Murphy
expressed the common sentiment when he stated, "A
free press lies at the heart of our democracy and its
preservation is essential to the survival of
liberty." Craig v. Harney, 331 U.S. 367, 383 (1947)
(Murphy, J., concurring). Compare Justice Frankfurter's
statement that "[a] free press is indispensable to
the workings of our democratic society." Associated
Press v. United States, 326 U.S. 1, 28 (Frankfurter, J.,
concurring). More striking is Madison's claim that
"[a] popular Government, without popular
information, or the means of acquiring it, is but a
Prologue to a Farce or a Tragedy; or, perhaps both."
Letter from James Madison to W.T. Barry (Aug. 4, 1822),
reprinted in 9 The Writings of James Madison 103, 103
(Gaillard Hunt ed., 1910). Despite deploring "the
putrid state into which our newspapers have passed,"
Jefferson argued that "our liberty depends on the
freedom of the press, and that cannot be limited without
being lost." Thomas Jefferson, Democracy 150-51
(Saul K. Padover ed., 1939), quoted in Dyson v. Stein,
401 U.S. 200, 208 n.6 (1971) (Douglas, J., dissenting).
And this view, generally accepted as a truism, is
certainly not merely American. See, e.g., Henricus G.
Schermers, International Human Rights in the European
Community and in the Nations of Central and Eastern
Europe: An Overview, 8 Conn. J. Int'l L. 313, 316
("Freedom of the press is an essential element of
democracy."). See generally Pnina Lahav, An Outline
for a General Theory of Press Law in Democracy, in Press
Law in Modern Democracies 339 (Pnina Lahav ed., 1985).
Moreover, since my concern is with justification, I have
tried to describe normative reasons why each “ideal
type” would have appeal even if many of the most
prominent theorists usually connected with the
corresponding notion of democracy tried to present a
solely descriptive (or scientific), not a normative,
theory. This attempt at a descriptive or scientific
theory is a characteristic common among elite democrats
and also proclaimed by many pluralist or interest group
theorists. See, e.g., Robert A. Dahl, A Preface to
Democratic Theory (1956); David B. Truman, The
Governmental Process (1951). My categorization aims at
seeing how different possible elements of democratic
theory have implications for evaluating the media. For
other purposes, the categories could be drawn
differently. For example, some theoretical accounts of
pluralism provide a basis for explaining why elitism
produces reasonably acceptable results. Thus,
Macpherson’s “pluralist elitist
equilibrium” model combines what I am calling
elitist democracy and liberal pluralist democracy. See
C.B. Macpherson, The Life and Times of Liberal Democracy
77-92 (1977) (critiquing an account of the democratic
process based on an analogy to economic markets).
However, a pluralist vision can also provide a quite
powerful account of the point of democratic
participation. Because of the normative power of the
account, I have isolated this version of pluralism and
labeled it as one type of participatory democracy.
Finally, my descriptive choices have been guided by
factors that I find provide the most persuasive versions
of a particular theory. For instance, I emphasize the
need to handle technical complexity in justifying elite
democracy. Other versions of this theory could, however,
emphasize the merits of government by wise leaders. See,
e.g., Edmund Burke, Reflections on the Revolution in
France (1790), reprinted in 8 The Writings and Speeches
of Edmund Burke at 53, 111 (L.G. Mitchell & William
B. Todd eds., 1989) (“The science of constructing a
commonwealth, or renovating it, or reforming it, is, like
every other experimental science, not to be taught a
priori. Nor is it a short experience that can instruct us
in that practical science . . . .”). |
Last Updated: 10/13/99 |
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© 1999 Communications Law in
Transition |
