Vanderbilt Law Review

Article Title

Market Hierarchy and Copyright in Our System of Free Expression


Neil W. Netanel


If trends of the past two decades persist, a vast inequality of wealth may well become a fundamental, defining characteristic of political and social life in many Western democracies, particularly the United States.' Among its potentially pernicious effects, massive wealth disparity threatens the integrity of the democratic process. Liberal democracy aspires to political equality, which demands that opportunities to acquire and assert political power be widespread and broadly distributed. Political equality does not re- quire economic equality. But political equality may be undermined by severe disparities of wealth. Absent preventive regulation, private wealth buys political power. It enables those with greater private means to exercise a disproportionate influence over legislation and to steer the course of public debate. For that reason, substantial inequalities of wealth may prove fundamentally incompatible with liberal democratic governance.

Concentrations of private wealth and power in communications and mass media give cause for particular concern. At the center of our understandings of political equality and democratic governance lies what might be termed the "Free Speech Principle," the idea that liberal democracy both depends upon and is largely manifested by "uninhibited, robust, and wide-open" debate from "diverse and antagonistic sources.' Underlying the Free Speech Principle is the empirical assumption that, at least in the long run, only diverse and antagonistic sources will likely give play to a full panoply of competing views, calling to task established elites and challenging settled positions and understandings.

Wealth inequality, commentators have cogently argued, subverts the Free Speech Principle in a number of ways. The first concerns disparity in the ability to make oneself heard. At least until the emergence of the Internet, only those who have owned or had meaningful access to a mass media outlet have been able to reach an extended audience. Yet for most people, the cost of acquiring access to the mass media is prohibitive. As a result, effective communication in the modern era has been overwhelmingly the province of economically powerful entities and individuals (and the government) .