Atmosphere ripe for further regulation of broadcast media, say panelists

Wednesday, October 25, 2000
Jack Valenti

Internet stokes
regulatory urge against 'too much free speech,' speakers say

ARLINGTON, Va. — Notwithstanding the First Amendment's guards
against government interference with a free press, pressure is building on both
the Supreme Court and in Congress to regulate the content of broadcast media in
an effort to control acts of violence, said panelists at a one-day conference

During the discussion “Regulation of the Electronic Media: Is
Content King or Does Government Reign,” participants agreed that the
atmosphere is ripe for further restrictions on the broadcast media even though
other media outlets such as newspapers and the motion picture industry enjoy
more First Amendment rights. The discussion was part of “The Electronic
Media and the First Amendment in the 21st Century” conference sponsored by
the National Association of Broadcasters Education Foundation.

Paul McMasters, First Amendment
ombudsman for The Freedom Forum, said “the media itself has been a problem
on the particular issue” of whether violent content in entertainment
programs is prompting more violent behavior on America's streets. He said the
media have been “unquestioningly parroting” the contention of
content-restriction advocates that 1,000 studies have proven that there is a
“causal link” between entertainment programming and violence.

In fact, McMasters said, there have only been around 200 studies done
on the question, and the results have been anything but definitive in terms of
finding a link between violent television programs, movies and record lyrics
and violent behavior. However, the perception is otherwise, he said, and as a
result, pressure to clamp restraints on violent content will continue.

“We'll see more of that, and particularly from Congress,”
McMasters predicted.

In addition, he said, he expects Congress to seek additional content
controls on television by “more fine-tuning” of legislation requiring
V-chips on television sets.

“The First Amendment has become not something to celebrate but
something to circumnavigate,” McMasters said. “Regulation of speech
is invariably proposed for the best reasons but with the worst

Thomas G. Krattenmaker, a Washington communications lawyer and former
Federal Communications Commission staff member, said although most people agree
that content regulation for electronic media is a bad idea, the members of the
FCC tend to get involved in the activity for three reasons.

The first is the belief by some on the commission that they are the
“handmaidens of Congress,” there to do the bidding of politicians who
are quick to pick up on the public sentiment in regard to certain issues, he
said. The second reason is that commission members often view themselves as
“selfless, public-spirited people trying to serve a public-interest
goal” with their actions. And third, commission members sometimes act to
slow the impact of economic change and cushion its impact on the broadcast

“We'll get content regulation when these three areas
converge,” Krattenmaker said.

Such a convergence is occurring now in regard to “sex, smut and
indecency,” he said. However, he said he doubted that the FCC would move
into another controversial area of government regulation and require electronic
media outlets to give free airtime to political candidates.

But Daniel E. Troy, another Washington lawyer and First Amendment
specialist, said he thinks the broadcast fairness doctrine absolutely is open
to revision, especially if Vice President Al Gore wins the White House in
November. Troy, who also is an associate scholar at the conservative American
Enterprise Institute, said he would expect other forms of restrictions as well
under a Gore administration.

“I'm sorry to say that if Al Gore is elected, I think we're going
to see more content regulation,” he said.

Gore's wife, Tipper, has been an outspoken critic of violent music
lyrics, and Gore himself has said he would require quick action by the
entertainment industry on a set of voluntary restraints on marketing tactics or
he would seek legislative action.

Newton Minow

Newton Minow, a former FCC chairman during the Kennedy administration
and now a lawyer and professor in the Chicago area, said the broadcast media
face restrictions because too much attention has been given to broadcasters'
rights and not enough to their responsibilities.

He quoted former Supreme Court Justice Potter Stewart: “We
confuse the right to say and do something with whether it is the right thing to

“I think it's about time that we talk about what the
responsibility of the people in the industry is” as well as their First
Amendment rights, Minow said. “I think we've got to get off the issue of
rights and talk about what is the right thing to do.”

Cameron DeVore, a Seattle lawyer who specializes in First Amendment
cases, picked up on Minow's comments and said he worries that “the
extraordinary hostility in this country about the news media” may
eventually influence the courts and Congress to chip away at the First
Amendment's mandate to “make no law” restricting freedom of the

He said he worries that some in the media view the First Amendment
“as a sort of antitrust exemption.” Although the Supreme Court has so
far been fairly good on First Amendment issues, he said if the courts begin to
view the media outlets as abusing their public trust just to make money, there
could be “a storm cloud out there.” The media must not “forget
that they live in this broad political environment,” DeVore said, because
“the Supreme Court will change over time. These things will change. None
of these things are immutable.”

Earlier, Jack Valenti, CEO of the Motion Picture Association of
America, issued a rallying cry in support of the First Amendment during a
luncheon speech.

Calling the 45 words in the First Amendment “freedom's
music,” Valenti praised the amendment for its simplicity and its concise,
clear wording. But, he cautioned, being a defender of the First Amendment is
not always easy.

“You have to allow into the marketplace that which you might
personally consider to be tawdry, vulgar and profane,” he said, adding
that “sometimes you want to call Congress” and say pass a law and
“protect me from this slime.”

But, Valenti said, “Be wary and be cautious because throughout
history, when a tyrant first approaches, he always comes as your

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