Market Triumphalism, Electoral Pathologies, and the Abiding Wisdom of First Amendment Access Rights
51 Pages Posted: 7 Nov 2007
Forty years ago, Professor Jerome Barron made the classic case that the First Amendment requires not merely protection of speech against government interference but provision of access to the means of mass communication. The Supreme Court in the ensuing decades has largely rejected Barron's approach. In this article, Professor Magarian defends Barron's case for access rights against the two theoretical critiques that have underwritten its doctrinal rejection. The libertarian critique attacks the normative underpinnings of access rights, maintaining that the First Amendment insulates market-driven distributions of expressive opportunities. Professor Magarian demonstrates that politically progressive and conservative libertarian critics of access rights share the same assumptions and failings, and he indicts the libertarian critics' market triumphalism on empirical, theoretical, and normative grounds. The regulatory reform critique of access rights embraces Barron's call for media access but disdains his view that courts should broaden access as a First Amendment mandate. Professor Magarian contends that the regulatory reform critics take an unduly narrow view of judges' capacity to implement access rights under the First Amendment. Conversely, he analyzes a series of electoral pathologies in our present democratic culture that undermine regulatory reformers' faith in Congress and administrative agencies to expand media access. Based on the failures of the two critiques of access rights, Professor Magarian renews Barron's call for expanding media access in order both to enable a more informed democratic discourse and to bring more speakers into that discourse.
Keywords: First Amendment, access rights, U.S. Constitutional Law
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