Some Realism about Pluralism: Legal Realist Approaches to the First Amendment

Abstract

A few years ago, in my home town of Kansas City, Missouri, I found myself in a very uncomfortable position politically. The local chapter of the Ku Klux Klan asked the local cable company, American Cablevision, if they could show what was essentially a racist propaganda series, "Race and Reason," on the public access channel. They were told that the public access channel was available only for locally produced shows, and they responded by asking if they could air a locally produced show saying basically the same things, called "Klansas City Live." American Cablevision was concerned about the reaction of the neighbors (they're located east of downtown Kansas City in an all black neighborhood), and they complained to the City Council. They asked if they could be let out of their franchise contract in which they were granted a monopoly in the city in exchange for providing a public access channel. After a very public and emotional debate, the City Council finally voted to abolish the public access channel and substitute a "community access" channel. This meant that American Cablevision had editorial discretion concerning whether or not to allow any particular speaker on the channel and what they could or could not say. Needless to say, the Klan was not permitted to broadcast under the new regime, and in fact American Cablevision began to exercise its new authority toward other groups who had participated in public access programming before the changeover. And, not too surprisingly, the City's decision led to litigation that was ultimately settled out of court in the Klan's favor.