I. Track Two Laws

Track Two laws - those that have message effects in that they affect what gets said, by whom, to whom, and with what effect, but that are not enacted because of those message effects - are, as we noted in Chapter Two, the entire corpus juris except for laws enacted because of their message effects (Track One and Track Three).

I am extremely skeptical about this. As I argued in Chapter Two, the Track Two jurisprudence of the United States Supreme Court almost never results in a victory for those challenging the legal restrictions on expression grounds; and when it does, it is difficult to find a principled basis for the victory. The Court has tended to protect sidewalks, streets, and parks - and their close analogues such as airport terminals - which provide some limited loci for face-to-face expression. But changes in technology and culture have made those protections less and less significant relative to, for example, the mass media with respect to large audiences, and relative to shopping malls with respect to face-to-face encounters.

Nor do I see any hope for a principled delineation of a Track Two right. That is so, even if we drop the requirement of evaluative neutrality. For even if we are allowed to evaluate the message effects of various Track Two laws, we do not and cannot know what those message effects will be (except application by application, case by case, and even then without great confidence).

Does a law that prevents sit-ins in libraries produce better consequences than would obtain in its absence? Even without the constraint of evaluative neutrality, we cannot answer that question with any confidence because we do not know what information will be lost to what audience if the law is in force.

It would, I believe, be good social policy in advanced countries for the government to ensure the existence of a wide variety of cheaply accessible media and perhaps some media, such as the Internet, that are open to all speakers. Of course, there are problems of getting the correct balance between having too many speakers, which results in either cacophony or cascading (audiences tuning in to only like-minded speakers), and having too few, which results in exclusion of worthwhile ideas.^[362] And the problems with finding the right balance vary depending upon whether the ideas we are concerned with are political, scientific, artistic, cultural, or commercial.

In any event, I think any Track Two freedom of expression jurisprudence - one enforceable by courts against laws incidentally affecting messages - is hopeless. Legislative actions regarding media of expression, on the other hand, may well be warranted, although it will always be difficult to assess whether they are. For in the absence of the future message effects that changes in Track Two laws will bring about, we cannot know whether those message effects will be worth the sacrifices required to produce them.