Free speech on a sliding scale.

About 25 years ago, when I was in law school, I fell in love with a woman who gave me a tape for Christmas titled Future Music. I thought the title referred to our future, which seemed to stretch in front of us like the yellow brick road. Although I was wrong on that front (is there a concomitant in print for the wry little smiley--the smiley face we all now use in E-mails?), the tape's title turned out to be much more prophetic and profound. Painstakingly constructed out of cuts from so-called women's music albums, the tape actually held the sounds of our future freedoms. Women's music was recorded in garages, church basements, and living rooms by women who were so well-known within our insular, national community that we referred to them, like rock stars, by their first names: Margie, Cris, Meg, Holly.

The tape was my first exposure to this music, and it sent a visceral thrill through me. And I wasn't the only woman whose heart opened to it like a drought-ridden village to the first rain. It was powerful, raw, direct, and truthful. Most important, it was about women loving women.

What it was not was on the radio or in music stores, available for purchase. Lesbian entrepreneurs had to put together their own national distribution network just to make sure it could be heard. Concerts were organized, but all efforts to get the music out in the larger world were stifled by refusals, censorship, fear, and homophobia. Where, I wondered, was this wonderful First Amendment I was learning about in law school?

This was the beginning of a valuable but painful lesson. The First Amendment is one of the most important protections we have as Americans. But it fails miserably when it comes to distinguishing between commercially augmented speech and nonaugmented speech. Thus it allows America to slumber in a dream of equality that doesn't really exist. In the days when anyone could speak on a street corner and be equally heard by listeners in the town square, curbing the government's ability to distinguish between those who could be heard and those who could not, simply because of the content of their speech, seemed to work.

But then came newspapers, which limited what was commercially produced and widely read. All speech was equal, but some speech--because it was now business doing the choosing rather than government--was more equal than others. Oh, you could have your newsletters, your broadsides, but nothing had such a wide audience as newspapers and magazines.

As modes of communication became more sophisticated and more complicated, this dichotomy was exacerbated. Radio. TV. (The Internet offers its own kind of democracy, but because it is so jumbled, it not only resists control, it also has yet to reach a predictable audience.) The voices on radio and TV are selected voices that are amplified in ways their opposites are not. There is no equality in commercial broadcasting.

This is what makes the First Amendment claims of radio pop psychologist Laura Schlessinger--called Dr. Screwy Loosinger by one of my favorite Los Angeles Times columnists, Mike Downey--so absurd. First Amendment protections are based on the theory that there is a free marketplace of ideas. How can there be a real marketplace if only a few get the choice market stalls? This homophobic "doctor" is a danger precisely because her speech is not "met," as we say in First Amendment law, by other speech. We're left chanting outside studios, while she will have a syndicated TV show.

What is needed is a better theory about equality. If speech is to be protected so that all ideas can be heard, we have to face the music and deal with the power of commercially amplified speech and its destructive influence on thoughtful discourse in this country. Of course, just as we did when confronted with the issue of sexual harassment--which, after all, may be only speech--this reexamination will have to look honestly at whether amplified commercial speech that causes harm deserves the same level of First Amendment protection. Otherwise, when we face the music, it just might not be ours.