Permanence and Change in the Global Village

Thomas Benson

Edwin Erle Sparks Professor of Rhetoric
Pennsylvania State University
t3b@psuvm.psu.edu

 

Garry, Patrick M. Scrambling for Protection: The New Media and the First Amendment. Pittsburgh: University of Pittsburgh Press, 1994.

 

The economy, the technology, and the regulatory infrastructure of communications are undergoing rapid change, with unpredictable but probably important social consequences. In his brief and readable book, Scrambling for Protection, Patrick Garry proposes that policy and law guiding the developments in new media industries should be governed by a reconstructed understanding of the press clause of the First Amendment of the United States Constitution. The First Amendment of the Bill of Rights addresses issues of freedom of religion, speech, press, assembly, and petition:

 

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

 

Garry argues that changes in media technology, as well as changes in the press and its public reception, render outmoded an existing patchwork of doctrines that have evolved through a historical process of case law and ad hoc regulation. Newspapers have increasingly become monopolistic creatures driven by large conglomerates remote from the local communities they serve. Journalism has changed from an organ of community information and opinion formation into a scandal-mongering, adversarial, investigative enterprise open to only a few professional journalists and a small band of experts. As a result of these changes in the press, the public, disenfranchised by journalism, is increasingly hostile and apathetic towards both the press and the political system. Meanwhile, information delivery systems have blurred the distinctions among the largest media industries–press, phone, broadcast television, radio, cable–and there is every indication that further blurring is on its way.

 

Garry proposes a way to solve the problems of the press and the public by guiding the coming changes in information technology from the perspective of the press clause of the First Amendment. But this requires, as well, a re-definition of the press clause. According to Garry, the most attractive feature of the new information technologies is that, with their vastly increased bandwidth and the new social practices they are tentatively exercising on the internet, media consumers have now become active–and interactive–media participants. If we could restore participation as a feature of journalism, argues Garry, we could restore a sense of community, giving American media and government back to the people. How would such a change be brought about in a consistent way? Here is where Garry attempts his reconstruction of the press clause, arguing that the best features of the new media are precisely consonant with what the authors of the Bill of Rights meant to protect with the press clause.

 

Garry argues that the Bill of Rights was not meant to protect the press, as such, and certainly not journalism as it has evolved over the past two hundred years, but rather that it was meant to protect certain practices and principles that were embodied in the American press of the late 18th century. Garry distinguishes between freedom of speech and freedom of the press by arguing that “while the speech clause protects individuals in their act of speaking, the press clause protects the dissemination of those views and assures an open forum for communication in society and for democratic political dialogue” (115). The framers meant to protect three primary values: (1) the attainment of truth through the open clash of antagonistic views; (2) the promotion of democratic government by rendering the government more rational in its decision making and the public more energetic in the formation of political coalitions; (3) the promotion of democratic society through the development of social bonds that help to “create a common social world” (113). These values, writes Garry, and not the press itself, were the objects of protection.

 

What follows from Garry’s redefinition of the press clause is that in developing law and policy for the changing media infrastructure, the courts and agencies should be guided not by any attempt to prefer the press as it now exists, and not by outmoded attempts to preserve distinctions among major media and media industries, but to regard all the agencies of dissemination as, essentially, “the press,” and to enact policies that favor participation, democracy, community, and the open clash of political views.

 

There is much to admire in Garry’s argument, which I have attempted to summarize in a manner sympathetic to his views. But since so much is at stake, it might also be well to entertain some misgivings.

 

In redefining the press clause of the First Amendment, Garry resorts to a peculiar mixture of historically rooted original-intentionism and transcendental essentialism. On the one hand, Garry appeals to a description of “the press” as it existed in late 18th-century America, where entry to the arena was relatively cheap for a printer-publisher, making for a crowded and diverse marketplace of ideas; where most of the content of a newspaper was partisan political argument submitted by readers; and where local interests played a strong role in defining press content. Pressing the historical analogy between the 18th-century press and contemporary computer systems, Garry claims that “essentially, colonial newspapers were bulletin boards for their communities; they were both subject to and responsive to the wishes of colonial society” (98). But Garry wants to go beyond historical comparison–he wants us to accept as fixed and transcendent a set of values he abstracts from his description of the colonial press.

 

Garry’s distinction between “speech” and “press” is also troublesome, creating a neat and tidy dichotomy that overly limits what is called “speech” and that appears to leave out of the circle of protection a variety of communicative enactments that appear to be neither “speech” nor “press” as he defines them. When he assigns to “press” the whole range of institutions and activities having to do with dissemination, Garry reduces “speech” to the act of individual utterance (or analogous symbolic action). But this reduction of speech to individual behavior fails the very historical test to which Garry puts “press,” since in the late 18th century “speech,” including public speaking in churches, courts, legislatures, and public assemblies, was a major institutional formation that (with the press) enabled the creation of resistance, the fomenting of revolution, and the building of a constitutional democracy. Freedom of speech protects not merely individual utterance but shared social communication. Further, to reduce speech to individual utterance and to confine the protected zone of the press to that which promotes political community would seem to endanger the expanding range of freedom to disseminate communication of all sorts, including the arts, without having to justify their freedom on the basis of their right to communicate political ideas. Speech and press are not so easily dichotomized on historical, theoretical, or constitutional grounds, nor would they remain, if reduced to Garry’s formulation, a sound basis upon which to protect communicative freedoms generally.

 

At many points, Garry seems overconfident of his ability to penetrate matters of causation in the empirical realm. For example, though there are legitimate grounds to argue that the Fourth-Estate model of the press, in which professional journalists of the post-Watergate era specialize in adversarial and investigative attacks on the political realm, contributes to political alienation, it seems unlikely that such changes can be attributed to a simple cause-effect model, and it seems even more unlikely that we could predict the results of adopting social policies designed to destroy the Fourth Estate. The complexity of the interactions of press, politics, and public, within the context of society as a whole groping its way through history, makes it very difficult to assign the sorts of cause and effect upon which Garry’s argument depends. Garry’s book abounds with such extravagant claims about causation, with abbreviated and facile historical analogies, and with extraordinarily optimistic projections of the ability of computer bulletin boards to salvage democracy.

 

Despite these misgivings, Garry’s book is a brisk, optimistic, confident, and provocative work that deserves broad discussion and debate. Garry is unwavering in his search for an open, democratic society; he does a skillful job of condensing a broad argument, sketching his evidence, and outlining the consequences of accepting his view. Readers interested in the interaction of media and democracy will be prompted by Scrambling for Protection to consider the challenges it poses to the construction of the media of the next century.The clarity, brevity (only 195 pages), and force of Garry’s bookmake it suitable for adoption as a text (though its $29.95 price tag will discourage some); the book seems well designed to stimulate spirited discussion.