The Right To Be Heard
by David Duemler
Earth Island Journal, Autumn 2001
In 1989, when British Columbia's logging industry flooded
the public airwaves with a massive PR campaign, Kalle Lasn and
his colleagues developed their own campaign to present an environmentalist
perspective. When they took their ads to the TV stations, however,
they found that nobody would sell them airtime.
Lasn mobilized, and soon hundreds of people were calling the
Canadian Broadcasting Corporation (CBC) demanding to know why
loggers could buy airtime but environmentalists couldn't. CBC
still refused to run the environmental messages, but the public
pressure led them to pull the industry campaign.
Thus was born the Adbusters Media Foundation. Since that time,
Adbusters [www.adbusters.org] has developed dozens of messages
attacking consumerism. But in both Canada and the US they have
consistently met with refusals to sell them airtime.
The First Amendment to the US Constitution declares: "Congress
shall make no law... abridging the freedom of speech, or of the
press." Unfortunately, the prevailing "marketplace conception"
of the First Amendment assumes that a free market in speech will
automatically ensure that all voices are heard and that the truth
will win out.
While this concept may protect the right of the individual
to speak on a street corner, in the modern world - where a few
huge conglomerates dominate the mass media marketplace - the concept
Today, those with the most money can dominate the public airwaves
and thereby win elections. In his book, Money Rules, Anthony Gierzyuski
presented data on contributions to federal campaigns during the
1996 election cycle. Contributions from businesses and professionals
totaled 11 times the amount contributed by labor and about 300
times the amount contributed by environmental groups.
Adbusters has tried without success since 1993 to launch a
First Amendment legal action against NBC, CBS and ABC for refusing
to sell them airtime. They are considering taking their case to
the World Court, citing Article 19 of the UN's Universal Declaration
on Human Rights, which guarantees that: "Everyone has the
right... to freedom of opinion and expression; this right includes
freedom... to seek, receive and impart information and ideas through
any media and regardless of frontiers."
Another tool used to silence dissident voices is what psychologists
refer to as the "familiarity effect." Through sheer
repetition, a claim gains acceptance and credibility When groups
are the targets of massive attack campaigns, the public eventually
starts to believe the attack ads and tunes out the message of
the targeted group. When these groups are compelled to use their
scarce resources to respond to attacks, they have little money
left to present their own message.
The central question, as emphasized by Alexander Meiklejohn
in his book, Free Speech and Its Relation to Self-Government,
is whether the marketplace conception of speech is adequately
fulfilling the function of enhancing democracy Are voters well
informed? Is there uninhibited, robust and wide-open debate on
issues of public importance? Can all groups gain a full hearing?
In the wake of the Seattle protests against the World Trade
Organization (WTO), an increasing number of people are coming
to realize that it will not be possible to end corporate dominance
unless the public and public interest groups can be heard.
Access to the Public Airwaves
A 1999 study by David Croteau, William Hoynes and Kevin Carragee
of Fairness and Accuracy in Reporting examined the sources used
in public affairs programming on public TV Corporate representatives
constituted 26.7 percent of sources, government officials 25.6
percent, professionals 25.6 percent (e.g., journalists and academics),
Wall Street 9.6 percent, the general public 5.7 percent, citizen
activists 4.5 percent, and all others 2.2 percent.
While microradio and other alternatives are important, the
primary struggle for reform must center on access to airtime in
the mass media. A right to be heard will mean little unless public
interest groups insist on a right to present their own perspectives
fully, without interruption, in their own voice.
There is a parallel with the practice of mediation. When people
enter mediation, each person has an opportunity to present his
or her own perspective fully and without interruption. One person
speaks while the other person patiently listens. This is a matter
of basic decency and respect. Unless each person is heard fully,
it is not possible to take the next step: searching for a solution
that adequately meets everyone's interests.
Public television has mandate to provide a voice for groups
that may otherwise be unheard. As part of a package of reforms,
citizens' juries might be used to hear complaints. A public interest
group could claim that it has not had adequate opportunity to
be heard in prime time, fully and without interruption. The jury
could then allot compensatory broadcast time. The group would
cover the production costs but could recoup these costs with an
on-air fundraising plea.
A few hours of access per year may not seem like much, especially
considering that public television typically has an audience share
in the neighborhood of 2 percent. But a single hour-long documentary
on environmental concerns, animal rights, peace and social justice
issues could have a profound effect on thousands of people.
Taking the Initiative Process
The biggest roadblock to reform is the marketplace conception
of speech as embodied in the 1976 Supreme Court decision, Buckley
vs. Valeo. In this ruling, the court held that money "enables"
speech and that limiting campaign spending violates the First
Amendment right to free speech.
Buckley aims squarely at access to the media. It holds that
moneyed interests' right to be heard is so important that it may
not be constrained. With Buckley, the Supreme Court stands up
for the right of the wealthy to be heard, although their wealth
may silence others.
In the edited volume, If Buckley Fell, New York State University
Law Professor Burt Neuborne laments: "At some point, uncontrolled,
massive political spending stops being pure speech and becomes
an exercise in power.... l he failure to acknowledge the compelling
need to limit campaign spending in order to restore a modicum
of political equality to American democracy may well have been
Buckley's gravest mistake."
The initiative process was intended to be a mechanism by which
the average citizen could directly participate in the creation
of law. It can only work effectively if people are able to participate
fully and as equals. This is not a possibility if media access
is determined by wealth. The people cannot rule if they cannot
Much of the necessary change could occur within the framework
provided by Buckley For example, Buckley allows public financing
of elections and reduced-price or free airtime. While Buckley
does not allow limits on campaign spending, it does allow limits
on the size of campaign contributions when those contributions
may lead to corruption or even the appearance of corruption.
Ultimately however, Buckley must be overruled. Once the adverse
effects of unlimited campaign spending on speech are acknowledged,
it is clearly consistent with the Constitution to limit campaign
spending in order to optimize speech. Nothing in the Constitution
suggests that media access should be determined by wealth.
A state initiative could propose a combination of campaign
spending limits, discount broadcast airtime, public financing
and a process for determining whether proponents or opponents
of a particular initiative receive sufficient opportunity to be
heard. Matching funds could be provided to assure that, if one
side exceeded a voluntary spending limit, the other side would
receive funds from the state in that amount. Each side would be
free to spend as much money as needed to get out its message,
but neither side could outspend the other.
The Big Picture
Without a right to be heard, a society cannot make informed
choices that take into account the interests of all beings. Without
a right to be heard, a few powerful interests can dominate discussion
and policy making.
Informative, emotionally compelling, professionally produced
programs can reach people in a way that picket signs cannot. Such
program can move people beyond reliance on stereotypes and toward
serious questioning and thought.
In 1992, the World Scientists' Warning to Humanity was signed
by more than half of the world's Nobel Prize-winning scientists.
The warning emphasized that, without fundamental change, human
society would be at serious risk. Yet no TV network reported it
and neither The New York Times nor The Washington Post deemed
the warning newsworthy Under such conditions, it should not be
surprising that progress in gaining access to the corporate media
has been limited.
The struggle for the right to be heard may become the defining
social movement of the next couple of decades, and public interest
groups have a special role to play in spearheading the movement.
David Duemler works for the Campaign for the Right to Be Heard,
a branch of Eugene Peace Works in Eugene, Oregon [www efn.org/eugpeace]