Afterword: Property and Free Speech

I. INTRODUCTION Property, as first-year law students learn, is like a "bundle of sticks," composed of various powers, rights, and immunities. Among those sticks is the capacity to use property for communicative purposes-either directly, as when we post a sign on our front lawn, or indirectly, as when we use money to pay for a newspaper ad. The point of the bundle metaphor, of course, is that the "owner" does not necessary hold all of the possible sticks; for example, my ownership of land may be subject to an easement or an equitable servitude, or it may be limited in time or shared with coowners. This is also true with respect to communication: my ownership of money entitles me to make certain kinds of political payments but not others; my ownership of a cable system would entitle me to control some of its channels but not others.1 Most forms of communication depend on the use of property in some way. Hence, in considering speech rights, we are immediately faced with the kinds of issues, such as conflicting ownership claims to the same resource, that are staples of private law. But the connection between property and speech also raises a more fundamental problem. Inevitably, at least in a capitalist society, property is unequally distributed. The necessary implication is that access to the means of communication is also unequally distributed, that, in other words, some people own much larger bundles of sticks than others. Inasmuch as viewpoints and economic interests are likely to correlate, this unequal distribution skews the marketplace of ideas toward certain views. This skew seems particularly troublesome in connection with political ideas, since our society endorses political (though not economic) equality. Yet the cure to this problem-if it is a problem-is elusive. We might try to level the playing field by capping expenditures for certain kinds of speech to prevent "overemphasis" on certain perspectives. Alternatively, we might impose public access requirements that broaden the range of viewpoints resented. But these solutions have serious First Amendment problems,2 leaving us stymied. This knotty problem is one focus of this Symposium. On one side, Martin Redish and Kirk Kaludis argue that the risks created by an equal access regime far outweigh what they consider the speculative benefits 3 On the other side, Owen Fiss argues that media access rights are needed to counter "managerial censorship" by media interests,4 and Burt Neuborne argues that campaign finance reform is urgently needed to preserve the democratic process from capture by the wealthy.5 Meanwhile, addressing another aspect of economic power, Thomas Merrill argues for restricting cigarette advertising through a variety of mechanisms, including an innovative proposal to use eminent domain to eliminate advertising rights.6 These debates over inequality and free speech naturally invoke conflicting egalitarian and libertarian strains of Western political thought. But in the end, normative analysis of the problem seems inconclusive. The norms invoked by both sides are legitimate. Neither the equality nor the liberty norm can be lightly dismissed in the context of economic inequalities in communication, for communication is central both to democratic equality and to personal liberty. In considering concrete problems we are left, then, with conflicting intuitions about whether efforts to curb inequality impose unacceptable costs on liberty, but with no apparent way of resolving the dispute. We seem to need a new set of intellectual tools to address problems of economic power and speech. Two articles in the Symposium contain at least hints of one possible new approach. In their article, Redish and Kaludis attempt to link issues of expressive inequality with the well-developed literature on redistribution of wealth. Even more pointedly, Merrill's analysis of cigarette advertising relies heavily on the economic theory of property rights developed by Guido Calabresi and Douglas Melamed and their successors. …