Setting the Wayback Machine to 1995: “Cheap Speech and What It Will Do”: A Possible Dark Side
[This is an excerpt from my 1995 Yale Law Journal article “Cheap Speech and What It Will Do,” written for a symposium called “Emerging Media Technology and the First Amendment.) Thirty years later, I thought I’d serialize the piece here, to see what I may have gotten right—and what I got wrong. Here is the final section.]
[S]ome of the other [First Amendment] assumptions that the new technologies will upset may lead to more trouble. Missouri Knights of the KKK v. Kansas City tells a cautionary tale. In exchange for giving a franchise to a cable company, Kansas City demanded that the company provide a public-access channel. Everything went well until the Ku Klux Klan decided to put on its own show, which offended the city government so much that it authorized the cable system to shut the entire channel down.
A court ultimately overturned the city’s action on First Amendment grounds, but the story shows what can happen when the assumptions underlying certain rules are changed. The city’s willingness to provide a forum for the little guy, it turned out, was based (perhaps unconsciously) on the supposition that the little guys would either provide a public service or at worst be harmless eccentrics. When the assumption proved false, the consensus behind the rule evaporated.
As the new media arrive, they may likewise cause some popular sentiment for changes in the doctrine. Today, for instance, the First Amendment rules that give broad protection to extremist speakers—Klansmen, Communists, and the like—are relatively low-cost, because these groups are politically rather insignificant. Even without government regulation, they are in large measure silenced
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