Media and telecommunications law and policy involve fundamental First Amendment issues and have a dramatic impact on the political process. The Constitutional rights of citizens to free speech and expression are being increasingly challenged by telephone, cable, and broadcast giants asserting their corporate rights to free speech. Since free speech is such a fundamental precept of the Constitution, courts are quick to crack down on laws and regulations that unnecessarily – or in some cases at all – limit speech. As a result, corporate speech rights are being asserted just as aggressively as individual citizens’ rights to speak were in the past. Compounding this problem, Congress and the Federal Communications Commission (FCC) in recent years have taken increasingly deregulatory and pro-business stands, allowing media and telecom firms to consolidate and thereby increase their market and political power. It is questionable whether either has the collective will to correct the other’s actions, promote the public interest, and serve as a counterbalance to a pro-business-leaning judiciary that is increasingly bombarded with corporate free speech claims.

The public-interest community needs to adapt to these realities in order to ensure long-term change and empower citizens. However, there are obstacles which make it difficult for public interest groups to take on corporate challenges. For one thing, these groups often lack the resources necessary to sustain the legal and regulatory work needed to fight corporate free speech claims. Faced with a myriad of telecom and media issues – each demanding attention from the representatives of the public sector – these court and regulatory challenges are often addressed in a piecemeal, ad hoc fashion by the non-profit groups. Compounding the difficulty for public interest groups is the fact that, in today’s policy world where many of the top lawyers work for the top industry groups, conflicts-of-interest arise in which public-interest groups cannot attract pro bono or even paid legal work from top communications and media lawyers. These conflicts cannot realistically be solved by periodic funding for outside counsel. There is a clear need to lock in ongoing legal support by developing long-term, economically viable relationships with specialized communications and appellate attorneys who can afford to forego commercial clients for a specific subset of their practice.

This White Paper proposes the creation of a legal defense fund to supplement the work of existing public-interest groups working on communications policy. The goal of this legal defense fund is to develop and implement a long-term legal and political strategy that reasserts (and reinstates, if necessary) the principle that “real people’s” speech – citizens’ speech – is vastly more deserving of Constitutional protection than the speech of “artificial people” – corporations [...]