The Visibility Value of the First Amendment

At a dark moment in American politics, marked by hyperbole and insult in public discourse, seemingly unlimited special-interest funding of candidates and agendas, and high-speed technology disseminating messages worldwide, a concerned commentator recently asked: "[D]oes anyone believe that the 'free market-place of ideas' is functioning?" 1 The question arose from arguments that the hallowed First Amendment protections of speech and press often seem too narrow, yet, at the same time, too broad.2 They are too narrow, according to the argument, because they overemphasize "negative" liberty-freedom from state suppression or punishment of citizens' expression-and ignore development of "positive" rights-freedom to participate meaningfully in public debate as aided in various ways by state intervention.3 And the same protections are said to be too broad in the sense that they apply neutrally, and hence, universally-not just to protect individual speakers, but to protect speech itself, regardless of source, including expression of corporations, unions, and other artificial entities.4 Cataloguing these frustrations, commentators often fail to credit the "access" jurisprudence of the Supreme Court, a line of decisions that in important ways avoid the above critique.Announced in Richmond Newspapers, Inc. v. Virginia