Faculty Publications

The First Amendment unambiguously proclaims that “Congress shall make no law...abridging the freedom of speech, or of the press.” The First Amendment’s Speech Clause primarily bears the deliberative weight of protecting and maintaining the discursive space of America’s self-governing democracy. It has done so by indiscriminately protecting a broad array of expression from government intrusion. As a result, the Speech Clause has democratically legitimized such expression in America’s civic discourse. This legitimization is essential to a more deliberative democracy. The Speech Clause’s legitimizing function, however, has not helped to advance another essential element for a well-functioning deliberative democracy, namely, democratic competence. Instead, it has hurt it. Democratic competence relates to the cognitive empowerment of citizens within civic discourse and requires, at a minimum, deliberation-enhancing end-products and exchanges, grounded in factual truth and disclosure of corporate or government sponsorship when applicable. The protective scope of the Speech Clause has ironically contributed to the current floodgates in American civic discourse of the opposite — unsubstantiated commentary, rumor, and manipulative spin. Developments in technology, citizen journalism, and online “blogging” have exacerbated this cacophony and discourage the production of deliberation-enhancing end-products and exchanges.

This Article turns to the Press Clause to advance democratic competence and to in turn amplify civic discourse beyond mere opinion sharing. It aims to do so by incentivizing the production and dissemination of deliberation-enhancing end-products. In so doing, this Article leaves intact the Speech Clause’s expansive reach and legitimizing function, while proposing an alternate basis of constitutional protection for a narrower category of speech — deliberation-enhancing end-products. Moreover, using the Press Clause in this manner provides a constitutional framework through which exclusive privileges may be awarded to anyone who produces these qualifying end-products. These privileges can therefore be made available to others besides members of the traditional news media who are currently the primary beneficiaries of such privileges. Civic discourse can, as a result, be opened up without sacrificing the long-acknowledged value of deliberation-enhancing end-products to civic discourse.

This Article interrogates the traditional role and effect of professionals and professionalism in America's media and civic discourse landscape. It does so by considering Ivan Illich's deschooling theory within the context of broadcast journalism's historic and traditional role in facilitating civic knowledge and engagement during the so-called Golden Era of Journalism. In revisiting "network news" history through the lens of Illich's deschooling theory, this Article highlights broadcast journalism's professionalization of political discourse. Furthermore, it contends that media law reified this professionalization through early interpretations of the bona fide newscast and news interview exemptions to the equal time rule. And finally, it concludes that both professional journalism and the media law that elevated it undermined development of a fuller and more authentic participatory democracy by relegating American viewers to passive followers of a professionalized political discourse on civic engagement.

This Article explores the manner in which gangsta rappers, who are primarily young urban Black men, navigate the mass media and rap's commercialization of the gangsta image to continue to provide seeds of political expression and resistance to that image. While other scholars have considered the political nature of rap in the context of the First Amendment, this Article's approach is unique in that it is the first to explore such concepts through the lenses of Habermas' ideal public sphere and those of his critics. While many have written gangsta rap off as being commercially co-opted or useless given its misogyny, violence, and unbridled exhortation to material consumption, "political" expression, resistance and social commentary can still be found therein. This resistance and social commentary can be found when gangsta rap is analyzed within the broader framework of the public sphere, particularly given the invisibility and marginalization of Black men in much public space in America, and the entangled relationship between gangsta rappers, the market, and the mass media.

In addition, this Article is the first to consider the Telecommunications Act of 1996 within the context of hip hop and its contribution to the proliferation of gangsta rap and to dissuading the voices of more "positive" rappers that would contest such gangsta rap. Contrary to Habermas' view that the law facilitates communication in the public sphere, and between the public sphere and the dominant society, the Telecommunications Act has contributed to stifling discourse within the hip hop community by increasing and solidifying corporate media conglomeration and control of the nation's radio airwaves. This conglomeration has been instrumental in creating the dominant gangsta image that has become, for the most part, the defacto voice of contemporary hip hop culture. In order to achieve the participatory democracy that Habermas and others envisioned, a wider understanding of political expression and resistance must be embraced, and the law, specifically, the Telecommunications Act, must not inhibit the articulation of alternative voices within the hip hop community that might resist, or provide a counter-hegemonic expression, to gangsta rap, and the resulting, gangsta image.