Realignments in the Politics of Media Access and the Public Forum Doctrine in the Digital Age

Sponsor: Freedom of Expression Division
Sat, 11/21: 2:00 PM  - 3:15 PM 
Virtual Event 
Room: Zoom Room 08 
Typically, the First Amendment is understood to protect speech from restriction only in cases of "state action." Since the 1960s, however, some progressive free speech theorists have also suggested that the democratic goals embedded in the First Amendment require a more robust public right to access private expressive spaces.
This paper analyzes how two such cases both recapitulate and re-cast older debates about the First Amendment and private property in novel digital contexts. These are: Prager University v. Google and Manhattan Community Access Corp. v. Halleck. First, I trace how each case grapples with more expansive formulations of the "public function" test that courts have used to determine whether the administrator of a speech forum should be considered a "state actor."
This analysis then provides a foundation for exploring a contemporary divergence on the political right with regard to communications policy and free speech jurisprudence. Building on legal scholar Wayne Batchis's (2016) account of the transformation starting in the 1970s from a largely "moralistic" conservative perspective on free speech to a more libertarian perspective (p. 2), I ultimately suggest that we are in the midst of a further transformation in which the emergent populist right has co-opted traditionally liberal arguments about "fairness" in media policy and First Amendment doctrine, but it has done so in a manner that is nonetheless steeped in a longstanding populist suspicion of the corruption of big business.


Ben Medeiros, State University of New York, Plattsburgh  - Contact Me