A No Moderator Needed: A Liberty Tradition Right to Broadcast Advertorials

Civic republicans have famously noted that the exclusion of relevant viewpoints from public debate undermines the process of democratic deliberation, a concern directly implicated by commercial broadcasters\u27 well-publicized refusals to transmit controversial issue advertisements. Unfortunately, simply noting the failure of our current broadcasting regime to appropriately inform the public does not provide an actionable First Amendment objection. Current doctrine focuses primarily on preserving individual liberty, presupposing that protection of individuals\u27 rights will prove sufficient to safeguard the speech necessary for participatory democracy and leaving little room for active state direction of the proverbial town meeting. If the liberty tradition is to substantiate this claim, however, it must provide a vehicle for effective individual participation in public discourse-a right to access (at least some portions of) the broadcast medium. This article argues that it does. Current public forum doctrine, a none-too-radical interpretation of established state action precedent, and appropriate attention to the underappreciated implications of two crucial cases (CBS v. DNC and Lehman v. City of Shaker Heights) are sufficient to demonstrate that broadcasters\u27 refusal to transmit individuals\u27 speech on the publicly-owned electromagnetic spectrum represents a violation of individuals\u27 First Amendment rights