Recently the New York Times ran an editorial criticizing Michael Eisner for not permitting Miramax, owned by Disney, to release Michael Moore's movie Fahrenheit 9/11. It suggested two reasons, each equally unpalatable:
- That the film, which criticizes Bush, might lead Bush brother and Florida governor to strip Disney of its tax breaks for its theme parks, or
- "That Disney caters to families of all political stripes and that many of them might be alienated by the film." The Times does go on to note, though, that, "[t]hose families, of course, would not have to watch the documentary."
Eisner wrote in a huffy letter to the editor in the May 10 edition of the Times objecting to the Times's objection. Just like the Times gets to decide what to print, he says, Disney gets to decide what kinds of content it wants to produce. The First Amendment doesn't require private entities to publish anything they don't want, he reminds us.
This is true, but this is not the point.
As media empires grow, with the sanctioning (permission) of the government, their duty to make available their pipes to a panopoly of discourse increases. It would otherwise be like allowing a company to buy the Panama Canal and then having it exert its "private right" to not let certain ships pass through. That private right to control access to its property may exist in other contexts, but the more a private entity comes to control a public avenue of exchange, its own private interests should give way accordingly. Especially to the extent that its control has been permitted or enabled by the government.
And particularly with regard to the first reason, which Eisner did not deny, suggesting that public governmental pressure weighed heavily in the decision not to distribute the movie, Eisner failed to address that critical point. Suddenly when the censorship occuring is not a capricious exercise of private discretion but rather an effect of the State leveraging its power to control expression, that most certainly is a violation of the First Amendment.