Communications and Democracy
COMMUNICATIONS AND DEMOCRACY
The infrastructure of communications is an indicator of the participatory quality of a democratic society. Ideally, the media in a democratic society help create a public sphere in which a critical nongovernmental voice is formed; they perform a checking function against government abuses; and they inform the public, helping to shape a citizenry capable of assuming the duties of making the intelligent decisions necessary for sound choices.
Underlying this idea of the role of communications in reinforcing democracy are a group of assumptions about law and the role of law. In the United States, the role of government is somewhat circumscribed in its capacity to energize or structure media so as to achieve these goals. Government can impose obligations on broadcasters to provide candidates better access to the airwaves or prohibit overcharging for political advertising. Yet, in terms of foreign policy, the United States has sought to shape media in transition societies, such as in the former Soviet Union, on the grounds that a better media structure will lead to a more stable democracy.
Part of this effort involves indicating to parliaments in other societies what elements of law are important to create an enabling environment for a democratic media. These elements almost always include constitutional provisions. Afirst amendment model is usually preferred, but many societies opt for a version of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The United States's view is generally that there should not be an elaborate media law; but often in these transition societies a comprehensive press and broadcasting law, which includes a statement of positive contributions that should be obtained in terms of information and its relationship to democratic processes, is enacted.
But such an enabling environment also includes defamation and libel laws, preferably with exemptions for a broad range of criticisms of public officials. Omnipresent are licensing provisions for electronic media, but the general pattern—reflected in American practice—is that the press should not be licensed. Many societies provide special rights, privileges, and responsibilities for accredited journalists, while others accord no special status to journalists. These differences, and how they are implemented, can have a substantial impact on the contribution of a media law to an appropriate enabling environment.
More complicated are rules concerning breaches of national security, hate speech, or spreading propaganda. The United States internal constitutional position is that such laws are generally incompatible with an enabling environment for a media contribution to a democratic society. European models of media regulation often embed such restrictions in the very definition of constitutionally regulable speech. In some societies, including the United States, there is a concern that media too prone to indecent, violent, and pornographic imagery rob the civil space of democratic discussion. This has led to efforts—usually vague, vain, and clumsily enforced—to regulate elements of such speech. In the new technologies, filtering devices are increasingly urged as noninterventionist means to regulate access to speech that the user (or the society) may deem harmful.
The area of speech directly related to the political process remains an area of legislative concern worldwide in terms of adjusting the democratic impact of media organization. In Arkansas Educational Television Commission v. Forbes (1998), the Supreme Court concluded that public broadcasters, at least those licensed to state entities, have an obligation, if they hold public debates, to include all candidates, except those who are excluded not because of their viewpoint, but because of poor public performance or other reasonable but narrow bases.
The formal laws themselves are not sufficient to provide an enabling environment for the role of communications in a democratic society. There is also the question of the rule of law and the institutional infrastructure in which the law exists. The existence of a judicial system or of regulatory agencies that have traditions of fairness and independence are essential aspects of a rule of law that protects a free and democratic media sector.
A third strategic area involves the social and political setting in which the modules of law are introduced and the infrastructure is found. How communications function as an aspect of democratic values involves such background elements as the structure of political governance. In some transition societies in the late 1990s, such as Bosnia and Herzegovina, the existence of a monopoly political party controlling the media meant that law alone could not yield democratic values. Forms of media ownership also influence the democratic character of the media. Many societies, including the United States, have foreign investment restrictions on the electronic media to secure indigenous control over the mechanisms of self-governance. Ownership alone does not reveal whether a medium of communication contributes to the growth of democratic values. Patterns of access are also highly relevant to whether the media serve forums for wide-ranging public debates.
Monroe E. Price
Fiss, Owen M. 1996 The Irony of Free Speech. Cambridge, Mass.: Harvard University Press.
Sunstein, Cass R. 1993 Democracy and the Problem of Free Speech. New York: Free Press.