The first attempt to regulate a new medium is typically a grievous mistake. The Communications Decency Act this year is just the latest in a long and lamentable line of misunderstandings. While early misapprehensions pertaining to the printing press, the telegraph and telephone have since been corrected, one grave error lingers on.
The Communications Act of 1934 was a mistake that we have lived with for sixty years. It is time to recognize it for what it is: a substantial assault on the freedom of speech which has haunted us for most of the twentieth century; the Communications Decency Act, which the '34 Act carries piggyback, seeks to extend that profound harm into the 21st century.
The complete confusion in which broadcast media were born is evident when you compare them to their predecessors, the telegraph and telephone. Here, courts and legislatures (after some initial confusion) soon analogized them to the railroad. Like the latter, the new media needed to use the public right of way (to string wires instead of placing rails) and could cause significant harm by denying anyone the use of their services. The economic and moral effect of the telegraph companies refusing to carry a reporter's cable to his newspaper, because it competed with their own wire service, was the same as the railroad refusing to carry a competitor's freight.
In Europe, the conflict was resolved by the nationalization of railroads, telegraph and telephone; here we resolved it quite differently, by creating "common carrier" status for companies that otherwise remained private. A common carrier cannot deny passage to anyone. The restriction on the right to deny service to anyone was thought to be a fair by-product of the use of the public right of way.
With the advent of radio, the Congress and the courts faced a similar problem. Broadcast utilized another scarce public resource, the frequencies of the electromagnetic spectrum. Chaos resulted when a federal court held that the government had no right to deny a broadcast license to anyone; stations attempted to grab frequencies by a sort of adverse possession, and tried to drown out each other's signal. At this point, faced with a chaotic situation inviting regulation, as had previously occurred with the railroads, telegraph and telephone, Congress could have declared radio broadcasters to be common carriers, opening up the spectrum to every conceivable variety of speech. Instead, departing from the model it had followed with earlier media, it granted a relatively few broadcasters a monopoly over the content of the airwaves--while imposing on them a public interest obligation so vaguely worded that the Federal Communications Commission changes its definition from year to year.
The 1934 Act reveals a fundamental confusion at its very heart. It says that nothing in its language gives the FCC "the power of censorship". Then immediately afterwards it states:
No person...shall utter any obscene, indecent or profane language by means of radio communication."
This conflict is evident also in the utterances of influential figures of the era, such as Herbert Hoover, who was Secretary of Commerce in the 20's when he said that government control of the radio would be "in principle the same as if the entire press of the country was so controlled." Contradicting himself, Hoover also said, "We can protect the home by preventing the entry of printed matter destructive to its ideals, but we must doubleguard the radio."
Newton Minow, President Kennedy's FCC chairman, uttered the famous statement that television had become (as of 1961!) a "vast wasteland." Reminiscing about that speech, and his tenure at the agency, in a recent book, Minow wrote: "The FCC had no interest in censorship, only in promoting a reasonable balance between profits and public service."
Minow attaches the full text of his 1961 speech as an appendix. He said:
I am unalterably opposed to government censorship. There will be no suppression of programming which does not meet with bureacratic tastes. Censorship strikes at the taproot of our free society.
But, with incredible effrontery, he said in the same speech:
I like westerns and private eyes too--but a steady diet for the whole country is obviously not in the public interest.
Thirty-four years later, Reed Hundt, the current chairman of the FCC, spoke coyly about the FCC's ambiguous role in a live chat session on America Online:
Q: Any idea how to censor the Net, while keeping all Constitutional guarantees in place?
REHundt: The Constitution doesn't guarantee any rights at all to obscene communications. On the other hand, censorship is explicitly not a power of the FCC.
Q: What are your ideas about censorship?
REHundt: I start with the idea that the FCC should not stand for the Federal Censorship Commission. On the other hand, shouldn't parents have the power to choose and something to choose for their kids?
Evidently, Commissioners of the FCC believe that they are not censors because the 1934 Act says they are not.
Are the airwaves censored? You bet they are, and have been since the beginning. In the '30's, columnist H.V. Kaltenborn was thrown off the air after Secretary of State Charles Evans Hughes complained to the station owner about something he had said. Kaltenborn later wrote, "Unknown to the general public, there is a thoroughgoing radio censorship already in effect." The ACLU's Morris Ernst summed up the problem as follows:
So long as the Department can determine which individuals shall be endowed with larynxes, it does not need additional power to determine what shall be said.
In the early years of radio licensing, the Commission denied licenses to many, including a broadcaster who failed to maintain "a standard of refinement befitting our day and generation" and another who criticized government economic policy, the Catholic religion, and local officials on the air. Censorship, as it always does, gave way to self-censorship, as one station refused to air speeches which would "disturb public confidence" in President Roosevelt, and another promised not to broadcast anything "critical of any policy of the Administration."
A modern instance of direct FCC censorship was the Pacifica case of 1978, known as the "Seven Dirty Words" case. In the midst of a perfectly serious program about the uses (and censorship) of language, Pacifica ran George Carlin's routine about the seven dirty words "you definitely couldn't say on the air, ever." The FCC sanctioned Pacifica and the Supreme Court, in a close and ambiguous opinion, said that Carlin's language was "offensive irrespective of any accompanying message..."
Once the government has banned certain speech, the next step is for it to discourage people from talking about what has been banned. If you want to see how frightening broadcasters find speech about forbidden speech, mention the Seven Dirty Words on the radio, as I did twice recently. Don't say the words, just use the phrase "seven dirty words," and watch your host's eyes.
At the time of Pacifica, the FCC confined itself to regulating the forbidden words themselves; the Court held that "There are few, if any thoughts that cannot be expressed by the use of less offensive language." But within a few years, the FCC broadened its definition to bar as indecent any language "depicting or describing" sexual acts or organs on the air. This now means that the chilling effect, the ban on discussing forbidden speech as well as on uttering it, has been written into the law. These FCC regulations, are of course, the very ones that the Communications Decency Act is trying to extend to the Internet. The Decency Act is the ultimate poisoned gift given us by the '34 Act. Since Pacifica, our legislators and possibly our judges have forgotten that the sole rationale for broadcast censorship was the public right of way, the electromagnetic spectrum. The Internet is not a scarce resource, but may end up being censored anyway.
The speech circumscribed by indecency means that a whole realm of serious ideas, regarding the needs and daily lives of human beings, are off limits. The forces behind indecency laws promote a world in which men don't exist below the waist, or women below the shoulders. And broadcast censorship doesn't end there: the broadcaster's knowledge of the FCC's power, of Congress' right to involve itself in content, inevitably influences the content of the ideas presented on the air.
Finally, the decision made in 1934 to grant a monopoly of the airwaves to a few large conglomerates guarantees that minority ideas, provocative ideas, are less likely to be heard on the air. Even where the conglomerate itself is not opposed, certain ideas will fail to attract commercial sponsorship. To pick just one example, when was the last time you saw a TV documentary on organized labor?
What is the solution?
Ithiel de Sola Pool, a brilliant and prescient political scientist, made two suggestions in his 1983 book, Technologies of Freedom. First, the broadcasters could have been deemed by legislation to be common carriers, required to open the airwaves to the producers of content--and even banned from the content business themselves. "Such arrangments would have allowed an indefinite number of programmers to share a finite number of transmitters." Secondly, the government could have auctioned off the broadcast spectrum to the highest bidder, instead of giving commercial monopolies for free. "In a free broadcasting market, relatively impoverished interests would be allowed to buy modest slices of time; that is prohibited today."
Pool's vision of broadcasting common carriers merges with the Information Superhighway vision of a giant server, a vast electronic library. Any one should be able to introduce a program into the system, without submitting it to a network gatekeeper.