So we had a full day yesterday describing what had to happen before the First Amendment could be a vital, vibrant (or true) protection of expression. In these descriptions, we used several metaphors — a golf ball, a Coast Guard cutter breaking the ice for the ships of thought and expression behind it to safely follow through to freedom, and the Chronicles of Narnia wardrobe, a doorway or portal for the First Amendment to pass through from federal power to state power (incorporation).
All of these metaphors were bouncing around in my head on my run last night when Jaci’s description of how she would rule in Citizens United hit me. Access theory! This might be the way to break the ice recently frozen into granite-like place by the 5-4 Citizens United decision (Stevens’s 90 pages of throwing salt on that ice to keep it from calcifying not withstanding). Jaci’s Coast Guard cutter.
In the theory of public access theory, the assumption is that the purpose of the First Amendment is to allow the public to openly voice the various opposing views surrounding a public issue. (You might detect elements of the “marketplace of ideas” theory or metaphor Holmes pushed.) The people should be guaranteed access to media in order to voice their views, in particular broadcast television. This theory is best seen in the Fairness Doctrine, established for TV in 1949 but abolished in 1987.
OK, it might be a stretch, but the precedent is there to show that where people’s voices are being overwhelmed or silenced, the government can and perhaps even should step in to level the playing field. I predict this overwhelming by big corporations spending big bucks to target specific issues and candidates, just as Hillary: The Movie is an attempt to do. (Irrelevant here, by the way, is what I happen to think of Hillary Clinton; the point here is a plurality of voices and a vibrant free flow of ideas and opinion.)
Also, two notes: Despite Colbert’s comic and veiled pledge to run in 2012, Doritos still couldn’t sponsor him. Citizens United doesn’t change that. The verdict does, however, allow Doritos to spend whatever it wants on specific issues or to go after certain candidates (an anti-cheese or anti-fake cheese candidate, perhaps?).
And remind me to mention Stromberg v. California Tuesday. (Or maybe I’ll just remind myself — with this blog post!) Holmes believed expression was action? How about action as expression! The suspense is building . . .