ABSTRACT
32 Nineteen eighty-seven marked the 100th anniversary of the Harvard Law Review, and the editors invited a number of law teachers, including me, to write essays for an issue of the Review that was to celebrate this event. Free Speech and Social Structure had just been published, and I thought I would use the opportunity provided by the Harvard Law Review to refine the major argument of that essay. The presumption against the state that I had railed against seemed to be rooted in the theories of laissez-faire so rampant during the era in which the Review began. The context of my critique was narrow, in the sense that I dealt only with the First Amendment, but since that branch of constitutional law had long been the breeding ground of libertarian sentiment, it seemed to me that any victory achieved there would be an important one.
While working on the essay, I became part of a study group sponsored by the Institute for Philosophy and Public Policy of the University of Maryland and chaired by Judith Lichtenberg. The focus of the group was on the mass media—which no doubt accounts for the emphasis in the essay that finally emerged on the fairness doctrine and other issues arising from state regulation of the press. In addition to constitutional lawyers, philosophers, and political theorists, the study group included a number of journalists and professors of journalism. Their presence made me consider more fully the possibility of professional self-regulation as an alternative to state regulation. The papers from the study group were edited by Professor Lichtenberg and published in 1990 under the title Democracy and the Mass Media. The version of my paper that appears here was published in the February 1987 issue of the Harvard Law Review.
