Tag Archives: marketplace of ideas

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Hate speech and freedom of speech

Jonathan Rauch argues in his “Defense of Prejudice: Why Incendiary Speech Must Be Protected” that despite all the pain hate speech causes to the groups and individuals it targets, it must be protected.  In “There’s No Such Thing As Free Speech and It’s a Good Thing Too,” Stanley Fish argues that free speech is a sham-it’s a phrase tossed around by those seeking to use it to gain power.  When their opponents use it, it’s no longer important to them.

Rauch comes to his conclusion from something close to the marketplace of ideas theory.  Scientists, for example, although they seem to be impartial and authoritative, are actually all fueled by biases.  It is the competition and collaboration of all these biases which leads to an unprejudiced field as a whole, and the best ideas win.  Rauch seems to thin that letting society or the government pick which speech is to be tolerated and which not would be similar to the old-fashioned way of forming consensus used by kings and dictators: eliminating the opposition.  He also sees the movement extending past hate speech and into prejudice in all its forms-from hate speech codes in universities to laws treating the same act more harshly if it was motivated by violence.  In the end, minorities can only lose out when dissident opinions are banned.

Fish points out, however, that even Milton’s Aereopagitica, a famous defense of speech and tolerance, he ends by excluding Catholics.  Fish thinks this is indicative of a larger notion; that by defining a space of tolerated or free speech, we inherently provide barriers against what is intolerable or gibberish.  For example, the First Amendment does not allow freedom of action, and therefor allows speech which is also action to be regulated.  Furthermore, pure free speech can only be maintained when no one has any stake in what they’re saying-Universities might say they’re for free expression, but if so, why have classes and tests?  Because those things work toward the University’s actual purpose.  If speech works to that purpose to some degree that is the degree to which it is tolerated.  On another level, answering hate speech with more speech would only work if contrary opinion could take away the pain, fear or humiliation.

I don’t think I could pick one of the authors here as the winner of the debate because their arguments diverge.  This does remind me, though, of the debate running in the Transcript last semester about hate crime legislation.  On one side was the In Righting columnist and some letter writers, and on the other was the From The Left columnist and some letter writers.  Though the debate went on for weeks, neither side presented a good case (or anything as intricate as the arguments here).  Most notably, the side for hate crime laws failed to come up with any rational justification what-so-ever.  Although I think many hate crime laws as written are too restrictive and in general I don’t like content-based restrictions, I can think of one rational that makes some sense.  Take a cross burning and compare it to two 13-year-olds playing with matches on their neighbor’s property.  With no hate crime laws, both receive the same charges-trespassing, destruction of property, probably not arson.  But now ask: which action does society have more of an interest in preventing/punishing?  This is getting to Fish’s argument.  Does the accidental act of two kids harm society as much as a KKK cross-burning?  Doubtful.  And the reason is content-based.

I’m still not sure that overcomes the necessity of free expression Rauch argues for.  And it could be said that by confining his argument (more or less) to this country, Rauch’s arguments could be slid into Fish’s schema-proving how free expressions serves the underlying purpose of our society within confines.

Freedom of speech, mass media, and debate

A response to Taking Sides – Clashing Views in Mass Media and Society – Issue 8

In the affirmative argument, Kathleen Jamieson argues that the First Amendment has protected the media and allowed it to cover many sides of issues, even sides the government might want to suppress.  In the negative response, Thomas Patterson says the mainstream press hasn’t fought for its own freedom, routinely excludes unpopular opinions, and is more concerned with dollars than debate.

Jamieson thinks the press has the freedom and contains the robust debate the framers intended when they wrote the Bill of Rights.  She cites the case law progressively strengthening this right and also the development of broadcast law, which has as its heart a notion of opening discussion for the public good.  Watergate and the Pentagon Papers provide two good examples of the press using this power to defend citizens against the government.  Political speech that offends and may even seem irrational today is protected as vigorously as the political speech of the part in power.  And voters today are exposed to many different sides-everyone from Marxists to Buddhists to Bill Clinton in the 1992 primaries, for example.  The development of technologies has broadened communication and debate as well.

Patterson says Watergate and the Pentagon Papers are an oasis in a desert of mundane mainstream press practices.  The mainstream press has not been the driving party in many First Amendment cases, and has been played like a fiddle by people like McCarthy.  The press control the government orchestrated in the Persian Gulf War is a good example of the media’s willingness to be controlled; only the alternative press protested.  Patterson argues that individual publications and broadcasters have displayed little interest in public debate and more in being able to exclude opinions they don’t like.  And finally, he says the press is more interested in making money than anything else.  Television and competition for customers have dumbed down news more than opened debate.

What interests me about these articles is how both look at the same case law and come to different conclusions.  Jamieson sees Miami Herald v. Tornillo as the court defending the press’ right to refuse to publish even if it’s in the state’s interest.  Patterson sees the same case as strike against hearing all sides in a political debate.  Jamieson sees the series of cases defining the First Amendment as the government’s (or at least, the court’s) struggle to guarantee free expression; Patterson says the mainstream press are rarely the ones fighting for the freedoms they enjoy.  Patterson’s point is interesting and I wish someone had thought of it while I was in media law class.  Why is it that the mainstream press has not been on the front lines of its own freedom?

I think Patterson’s final point, about commercialism over communication, deserves its own chapter.  Giant corporations and profit-minded individual ownership of mass media helps narrow the marketplace of ideas in key ways.  I’m going to make this point in my paper, too, because I think Internet news may be even more apt for this-most people get news on the internet from companies that have never had anything to do with news (Microsoft, AOL, Netscape).  Though they outsource to more traditional providers (AP, Reuters, etc) they’ll happily go with the lowest bidder and have no sense of journalistic mission whatsoever.

Media independence, corporate control, and democracy

A response to Mass Media and Society (James Curran and Michael Gurevitch), Chapter 6

In “Rethinking Media and Democracy” James Curran discards the accepted view of the media’s role in democracy and shows that corporate control may be worse for the people than government control.  Historically, the media is seen as a check on government that must be independent-meaning it must reside in the free market.  Curran says this arrangement has failed the people in several ways.

Curran gives three standard arguments for media independent of government: first, to act as a watchdog; second, as a way to facilitate idea exchange and debate; and third, so that they may act as the voice of the people more.  He says all three arguments are flawed by real-world conditions and corporate ownership.  First off, the media rarely even schedule watchdog-type news anymore-most mass media effort today is entertainment.  And the government is no longer the only large, faceless entity that the people need a watchdog for.  Giant corporations, the same ones that own the bulk of the mass media, today have more power than some governments, yet the classical argument doesn’t mention them.  Furthermore, there are many examples of the mass media working with or for the government even if they are independently owned, simply because it is in their best economic interest.  Curran does allow that loss of credibility and professional ethics counter these arguments to some degree, but not enough to overpower his concern.

Curran rejects the marketplace of ideas theory largely because the free market has led to multi-billion dollar media mergers, large percentages of market share for a small number of companies, and a high cost to enter the marketplace in any meaningful manner.  Second, the mass market demands more entertaining, less informative content; third, the market lead to information-rich media for elite and info-poor media for the mass market; and fourth, it leads to simplified news rather than process-type news.

The mass media also do not really act as a voice of the people.  Curran thinks the free market is fundamentally flawed in this regard-public participation in the media is passive, in terms of buying what they like, rather than an active voice in most cases.  Even new communication technologies, he says, which may seem to give people more of a voice, have been reigned in by deregulation-inspired mergers.

I agree with many of the problems with the standard idea of the purpose of the media in a democratic society he has brought up.  I think it’s especially important that the people have a watchdog for large corporations now when so many of them are beyond any real government or market control.  Except for a few cases (like Disney losing business if people find out they use sweatshop labor) corporations are free to do anything they wish that may effect individuals adversely with little accountability.  The government, on the other hand, has to seek approval from the public every few years through election.  It is relatively easy to find out what’s going on in the government when compared to the private sector, yet corporations control what you eat, breathe, and read every day.

He is also right that the mass media, as a whole, is moving towards more entertainment and less information, especially on public policy.  That’s because people buy it.  Why do you think political candidates with obviously no command of the issues can beat out those who are well-informed?  People don’t like to hear about fiscal policy, but they do like hearing about “uniters, not dividers” and “family values.”  Curran mentions the growth of purely-informational media and specialized media as a wedge between the elites and the general public but I think he’s missing the point.  In the U.S., at least, nothing is stopping 99 percent of the general public from accessing the elite, actually informative media except preference.  Almost everyone can afford a New York Times once and a while and everyone can afford The Other Paper and Columbus Alive (which are more investigative than the Dispatch) or go to a public library and surf the web for free.  No matter what structure the media takes, the bottom line is you can’t force people to pay attention to important things they aren’t interested in.  If 99 channels are public interest, civic organizations, truth-seeking investigation, etc. and one channel has Who Wants To Be A Millionaire and Entertainment Tonight, will people be any better informed than they are today?  That is the main flaw in Curran’s whole essay-even taking the market out of the picture and all the ways in which it limits public information and debate, he still gives people the right to choose what they view and read and therefore leaves it up to them, essentially no better than the free market.  All of the flaws of the free market he cited would be erased immediately if the public demanded it.  But they don’t.

The development of the Internet is a good illustration.  On the surface it seems to prove Curran’s point-when it began, many people saw it as this perfect marketplace of ideas, yet now much of it is controlled by a few companies (who are buying up competitors as they are created).  Curran’s criticisms seem to hold.  However, the market is not to blame here-the cost of publishing on the net is insignificant and no site has to aim at the whole market and therefor dumb-down it’s content.  But, as more of the general public has gone online, the explosive growth has been channeled toward Microsoft Network, AOL, Yahoo, and a few others, because most people are more comfortable being spoonfed more of the same kinds of things they’ve already been exposed to.  It does not take much time or know-how to find much better, deeper, faster, etc. info on the net, but the majority of users now would rather just click on the first thing they see, which is determined by a merger between AOL and Bugs Bunny, even if John Doe’s independent cartoon studio is twice as funny and only five clicks away.