Information Freedom, a Constitutional Value for the 21St Century Christopher Witteman
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Hastings International and Comparative Law Review Volume 36 Article 3 Number 1 Winter 2013 1-1-2013 Information Freedom, a Constitutional Value for the 21st Century Christopher Witteman Follow this and additional works at: https://repository.uchastings.edu/ hastings_international_comparative_law_review Part of the Comparative and Foreign Law Commons, and the International Law Commons Recommended Citation Christopher Witteman, Information Freedom, a Constitutional Value for the 21st Century, 36 Hastings Int'l & Comp. L. Rev. 145 (2013). Available at: https://repository.uchastings.edu/hastings_international_comparative_law_review/vol36/iss1/3 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings International and Comparative Law Review by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Information Freedom, a Constitutional Value for the 21st Century By CHRISTOPHER WITTEMAN* Table of Contents I. Introduction...................................... 146 II. Constitutions and Communications........ ............. 154 A. The Constitutional Vacuum Around Communications and Communications Law ............ ........... 154 B. Constitutionalizing Communications ............... 164 C. Setting the Stage: the Speech Interests at Issue (a Battle Between Two - or More - Concepts of Liberty)..............167 D. The Problem of Constitutional Comparisons .... ..... 172 III. Defining Information Freedom....................... 177 A. Information Freedom in German Constitutional Law ..... 178 B. Information Freedom in International Treaties and Law. 181 C. Information Freedom in U.S. Policy Statements................ 185 D. Information Freedom in U.S. Law, Legal Thinking, Philosophy, and the Marketplace.................. 188 IV. Situating Information Freedom in German Law.........................189 A. Beyond the Individual Speaker - a System of Communication Essential to Democracy ...... ...... 190 B. Duty of Legislature to Protect this System of Communication ........................ ..... 193 C. The Radiating Effect of Communications Freedom..........194 D. An Empirical Focus - Market Censorship as Real as Government Censorship. .................. ..... 196 E. Where Constitutional Norms and Communications * Mr. Witteman is a graduate of Hastings College of the Law (Class of 1984) and an alumnus of this publication. This is, in fact, his third appearance in the pages of HICLR, having published a student Note on West German communications law in 1983, and an updated survey in 2010, as set forth in note 1, infra. Mr. Witteman is also a telecommunications staff attorney for the California Public Utilities Commission. The views expressed herein, however, are entirely his own. 145 146 Hastings Int'l & Comp. L. Rev. [Vol. 36:1 Facilities Meet.................... ..... ....... 200 V. In U.S. Jurisprudence, the Triumph of the "No Law" Approach to the First Amendment .................. ..... 202 A. Intimations of Information Freedom ............... 203 B. Red Lion and Its Afterlife................. ....... 206 C. Retrenchment and Ascendency of Subjective, "Negative Freedom" Model ..........................213 D. An Incompletely Theorized Freedom of Speech...............219 E. The State Action Problem............... ............... 227 F. Empirical Consequences of a Negative Freedom First Amendment.. ................................... 231 VI. Criticisms, Comparisons, Suggestions, Conclusions.................. 237 A. The Affirmative Speech Model - Criticisms and Comparisons............................... 237 B. Possible Ways Forward ..................................244 VII. Conclusion ....................... ............... 254 I. Introduction In the United States, the debate over communications issues like network neutrality, copyright law, and public broadcasting often seems to be carried out in a constitutional vacuum. The First Amendment, while understood as a "free speech" protection, is not infrequently just the opposite - either missing in action, or applied in a way to lessen the amount and variety of speech, information, and opinion available to the public. One reason for this, as developed below, is that the First Amendment is framed linguistically as a negative - "government shall make no law. .. abridging the freedom of speech" - and the Courts have generally focused on the "no law" rather than the "freedom of speech" part of this command. This paper compares First Amendment jurisprudence on this point to a system built on a constitution phrased in the affirmative, guaranteeing freedom of the press and broadcasting as institutions, and protecting speech and information flows as dynamic processes. The German post-war constitution (the Grundgesetz or Basic Law) was built on the ashes of a fascist dictatorship that had misused mass communications, and was structured to make such a catastrophe as unlikely as possible in the future. Article 5 of the 2012]1 Information Freedom 147 Basic Law provides for freedoms of speech, information, broadcasting, and the press; these freedoms are intertwined and subsumed under the rubric of "communications freedom."' This paper headlines information freedom as particularly salient in an Information Age, and particularly evocative of the differences in constitutional approach between the two countries, but this is not meant to distort the unified fabric of the German communications freedoms. In a dozen or so seminal cases from 1961 to the present, the German Constitutional Court 2 has claimed the media, and particularly the electronic broadcast media, for the project of self- government, and has linked the media to dominance-free "opinion- building" in both the personal and public spheres.3 While the First 1. See Christopher Witteman, Constitutionalizing Communications: The German Constitutional Court's Jurisprudenceof Communications Freedom, 33 HASTINGS INT'L & COMp. L. REV. 95, 115 (2010) [hereinafter Constitutionalizing Communications]. That article was itself an update of a student "Note" I had written twenty-seven years earlier: Christopher Witteman, West German Television Law: An Argument for Media as an Instrument of Self-Government, 7 HASTINGS INT'L & CoMp. L. REV. 145, 197 (1983) [hereinafter West German Television Law]. 2. Or Bundesverfassungsgericht, which is usually and strictly translated as Federal Constitutional Court, abbreviated FCC. As this paper deals extensively with another FCC, the U.S. Federal Communications Commission, the Bundesverfassungsgericht will be referred to herein as the German Constitutional Court, or Constitutional Court, or German Court. The U.S. Supreme Court will be referred to as Supreme Court. Constitutionally, these two highest courts perform in much the same way, adjudicating constitutional questions presented by clashes between government divisions and between government and the governed. The Supreme Court, however, also handles nonconstitutional questions of statutory interpretation and civil law which in Germany are handled by a separate court, the Bundesgerichtshof or Federal Court of Justice. See http://www.bverfg.de/en/ index.html FEDERAL COURT OF JUSTICE, Position of the Federal Court of Justice in the Federal Court System, at 4, available at http://www.bundesgerichtshof.de/ SharedDocs/ Downloads/ EN/ BGH/brochure.pdf?_blob=publicationFile. 3 "Free individual- and public opinion building" (freie individuelle- und oeffentliche Meinungsbildung) is a recurrent trope in the Court's decisions. See, e.g., ConstitutionalizingCommunications, supra note 1 at 131, n.109, citing 83 BVerfGE 238, 315 (1991); see also 73 BVerfGE 118, 152 (1986). The Article 5 jurisprudence is also treated in CASS SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH 77-81 (1993) (discussing the specifics of German media jurisprudence); OWEN FIss, THE IRONY OF FREE SPEECH 6 (1996); John David Donaldson, "Television Without Frontiers": The Continuing Tension Between Liberal Free Trade and European Cultural Identity, 20 FORDHAM INT'L L.J. 90, 143 n.308-09 (1996) ("Europe to a large degree still requires broadcasters to fulfill a public task obligation"); Stephen A. Gardbaum, Broadcasting,Democracy and the Market, 82 GEO. L.J. 373, 395-96 n.50 (1993); Vicki C. Jackson, Holistic Interpretation, Comparative Constitutionalism, and Fiss-ian Freedoms, 58 U. MIAMI L. REv. 265, 297 n.124-25 (2003). For a wide-ranging discussion and 148 Hastings Int'l & Comp. L. Rev. [Vol. 36:1 Amendment is cast in the negative, Article 5 is phrased in the affirmative, and contains an express guarantee of free media: Everyone has the right to freely express and disseminate his opinion by speech, writing and pictures, and to inform himself from generally accessible sources without hindrance. Freedom of the press and freedom of reporting by broadcast and film are guaranteed. There shall be no censorship.4 Despite these differences, both constitutions are animated by similar democratic concepts; indeed, the Americans and their World War II Allies were at least partially responsible for Germany's post-war constitutional scheme, and insisted in particular that broadcasting be free from both government influence and commercial capture.5 comparison of the British, French, Italian, and United States' approaches to broadcasting, see ERIC BARENDT, BROADCASTING LAw, A COMPARATIVE STUDY (1993). 4. Grundgesetz for die Bundesrepublik Deutschland [hereinafter