‘Broadcasters not tending to their free-speech interests’

Thursday, February 25, 1999

I want to start right out this morning by owning up to what surely is not a very well-kept secret, judging from some of the conversations I've heard in the elevators and halls the last couple of days. So even though it probably will be to no one's surprise I will go ahead and say the obvious: We are guilty of a certain amount of arrogance and hypocrisy about how free speech is in the United States.

I'm sure that those of you from Mexico and Canada can recite a long list of troublesome examples of the abridgment of speech and press freedoms in your countries.

But to put all that in perspective, let's just focus this morning on how those freedoms fare in the United States of America.

Here is the official line: We have a First Amendment, the grandest constitutional guarantee of freedom of speech of any country or culture in the world — in all of history. That means, naturally, that we can say any thing we want to any one we like at any time we please, right?
Well, not quite.

Now we do talk a lot, sometimes very loudly and, it seems frequently, all at once. But as much of that speech as there is, it is far from fully free. In fact, we have a long way to go before we are fully free of restrictions on and threats against what we can hear and say and see in this sweet land of liberty.

Freedom of speech and the press depend on three things:

  • A constitutional guarantee,
  • A strong and independent judiciary,
  • And a citizenry committed to democratic ideals.

It is that third element [in which] the whole thing begins to come apart. You see, U.S. citizens believe they believe in freedom of speech, but when it comes right down to it, what they really believe in is free speech for themselves, but not necessarily for the other guy — unless he thinks and talks like them.

Lawmakers and judges, of course, are quick to pick up on any public queasiness about particular kinds of speech and to exploit them in the name of responding to the public need.
That is why every day across the physical and cultural landscape of this nation we put our commitment to free speech to the test in a thousand ways, large and small, and why so often we fail that test.

That is why not a day goes by that a book, a painting, a lyric, a play, or a movie isn't targeted for censorship somewhere.

That is why the press is constantly under siege, battling $220 million-dollar libel awards, or new legal strategies that attack journalists and their news-gathering techniques rather then the accuracy of their reporting.

That is why federal and state lawmakers exploit the tragic saga of the Princess and the Paparazzi to propose laws restricting the news coverage of public figures.

That is why, this year alone, hundreds — hundreds — of laws will be proposed in state and federal legislatures directed solely at restricting speech on the Internet.

Each day of this nation's life, in meetings of school boards, library boards, city councils, state legislatures, and Congress itself, elected officials rise on behalf of a censor-minded citizenry and proclaim, “I believe in the First Amendment, but …”

Then follows yet another proposal to regulate our speech in order to elevate our lives.

But it is not just the regulators and groups with agenda who want to censor and restrict and regulate speech.

Survey after survey tells us that U.S. citizens stand fast in their support of the general notion of free speech — the First Amendment in the abstract.

In the particulars, however, we waver. When asked to countenance the very speech the First Amendment was drawn to protect — radical speech, rude speech, even revolting speech — we become unsure.

As I said, we tend to believe in free speech for ourselves, but for the most part we are not so sure about free speech for others, especially those who use words that might offend our taste, threaten our children, or challenge our convictions.

The simple fact is that the First Amendment has served this nation well for more than two centuries but its lesson still has not completely taken with most people, or their leaders.
Too many of us do not believe our democracy is strong enough to survive words uttered by those who sometimes cross the line between liberty and license.

There is a little bit of the censor in each of us. Whether it is indecency, violence, extremism, flag-burning, New Age religion, rap lyrics, racism, sexism, a Ku Klux Klan march, or an anti-abortion Web site, there always seems to be something we just can't abide.

So, First Amendment freedoms endure attacks from the left, the right, and the middle of the political spectrum in this country. They come from all sectors of our society.

In the academic world, Catharine MacKinnon, Stanley Fish, Cass Sunstein, Mari Matsuda, Richard Delgado, and a host of other esteemed scholars articulate a vision of our future where the First Amendment remains important, but not all-important. In their view, civil rights must overshadow civil liberties rather than exist in harmony.

In the religious world, many are not content with merely protesting indecency and immorality in books, in movies, on television, on the Internet. Instead, they want the courts and legislatures to impose an approved and ordered view of the world on everyone.

In the political world, many lawmakers are all too happy to oblige this impulse, up to and including altering the First Amendment itself with constitutional amendments to allow prayer in public schools, to curb political speech in the name of campaign finance reform, and to ban burning of the flag (that amendment will be offered this afternoon, as a matter of fact).

Or they propose blue-ribbon commissions that propose requirements that seem so benign in the recommendation stage and turn so cancerous in the implementation stage.

There is, of course, a popular torrent feeding all these streams.

Among ordinary citizens, there is unease about speech that is too free. There is a feeling that we should protect freedom of speech only when it is put in the service of higher social, political, or religious interests. In such thinking, there is no innate good in freedom of speech, just a pragmatic need from time to time.

Fortunately, in this country, the courts generally turn aside the more intemperate attacks on speech and press rights. They serve as a moderating influence on the power of government, the will of the majority, or the whim of the moment that would stifle and silence speech.

But the attacks keep coming. And the losses mount.

Right about now, if not some time back, several — if not all — of you in this room started muttering to yourselves: Why in the world is he on this rant? It's all very interesting, but what the hell does it have to do with us?

A fair question. Let me see if I can't demonstrate how these assaults on speech and the press are not distant distractions or irrelevant abstractions. They bear directly and unequivocally on your broadcast franchise, whether you operate in Canada, Mexico or the United States.

Here's why.

Yesterday, you were told by Congressman Markey and Dr. Ornstein that for your own good you needed a dose of requirements here, a few restrictions there, and just a bit of regulation over here. The insidious thing about all this, of course, is that such proposals and assurances come from nice people, with respectable motives who are always doing it in the public's interest.

That's the way it always is: Regulation of speech invariably is proposed for the best of reasons with the worst of results.

Norm Ornstein made much in his remarks to you yesterday about the broadcasters' political muscle. Congressman Markey acknowledged as much by taking time out of his demanding schedule to talk with you.

Let's concede for the moment that they are right: Broadcasters have a lot of political muscle. The question then becomes: “How well and to what ends have you put that political influence to work?”

I would suggest that you have put it to the service of the bottom line more often than you have put it to the service of the freedom line.

How else do you explain that while you all were jostling and negotiating and whistling softly at all the wonderful deregulatory provisions of the Telecommunications Act, Congressman Markey and his colleagues were quietly slipping you the V-chip?

No big deal, you say. It's just a computer chip. True, but that computer chip wouldn't work without a rating system. And that rating system wouldn't fly with members of Congress unless it contained not just age and maturity indicators but indicators for content, too.

Now, we're just beginning to see where that seemingly innocuous regulation is going.

At first, it was only 800,000-plus hours of entertainment programming a year that you were going to have to pay for the time to affix a rating to.

Now, a Maryland company has come up with software that allows the blocking of individual segments and scenes within an individual show, raising the specter that someone like Congressman Markey will step forward and say, Hey, rather than blocking a whole show, for your own good we're going to require that you rate the 1,000-plus hours of daily programming, scene by scene, rather than show by show.

Now, there is an Arkansas entrepreneur who has developed a program to edit out objectionable words and phrases and substitute computer-generated dialogue — not without some collateral damage to understanding, of course. He's working out the bug that renders the name of actor “Dick Van Dyke” as “Jerk Van Gay.”

Now, even more ominously, the largest manufacturer of television sets in the nation has revealed that it has “improved” the V-chip so that you can block news, sports and, yes, commercials.

How or where will this all end? Certainly not with the current rating scheme. We have all the age indicators, plus the content indicators for sex, violence, suggestive dialogue and fantasy violence.

Now, comes the Christian Action Network clamoring for yet another content indicator: HC for “homosexual content.”
Imagine the potential crush by interest groups for their own special ratings for things they don't like on television. AC or DC for alcohol or drug content, R for religious content, PP for partisan politics. It goes on and on.
How about Jerry Falwell's favorite: TW for Tinky-Winky content?

Then there's the Gore Commission that Dr. Ornstein co-chaired.

What about that code of conduct that he said would eventually be accepted by the broadcast industry? Right now, he assured, the industry has some problems with it simply because of antitrust implications. That can be dealt with, he assures.

I don't think I have to spend time telling this audience that an industry-wide code of conduct is not simply a “pain in the butt” as he so eloquently put it but a pernicious and depleting bag of worms, not the least of which is enforcement problems.

Or what about free time for political candidates that Ornstein predicts eventually will become a reality? Just one more small, but significant, incursion into the content decision-making process that the industry is ceding to regulators second by second. What's five minutes a day for 30 days, after all?

Or what about this talk of some sort of “referee” who will decide whether broadcast discourse is civil enough or really suits the democratic needs? Let's hope that remains just part of Norm Ornstein's dream of the ideal society.

I think you see where I'm going here:

For all that vaunted political muscle you have, you still have those little warning labels in the upper left corner of your TV screens.

We still have to have V-chips in all of our TV sets by this time next year.

Radio stations still get fined for broadcasting certain words at certain hours.

Television networks still have to carry a certain amount of a certain kind of programming.

Broadcasters still have to submit to a list of public-interest requirements.

And broadcasters still have less freedom of speech than their colleagues in the print world.

That's because the broadcast industry as a whole has not tended to its free-speech interests as well as it has to its other interests.

And to its everlasting shame, the print industry has not gone to bat for broadcast freedoms as often or as intensely as it has its own.

Which brings me to my final point. You were beginning to think I wouldn't get there, weren't you?

We don't talk about it as much as we did a few years back, but there still is such a thing as convergence, which makes what happens in newspapers, movies, music and other media as important to you as it is to them.

Because of the Internet, radio and television programming eventually will arrive in our homes by that route as well as by the traditional method. That will happen in Mexico and Canada and the United States, anywhere in the world for that matter.

This is an intensely significant issue because the rules and regulations you will have to live by in this new world more than likely will be the lowest common denominator. In other words you will have to submit to the regulatory regime of the most regulated medium in the most regulatory-minded country.

You are told that the audience is fragmenting at the same time that media are converging. That offers enormous opportunities for the courageous and creative. It also offers opportunities to trade your free-speech franchise for tempting but temporary economic or competitive advantage.

For those who would propose further public interest obligations on you, remind them that the best way to serve the public is to protect their freedom of speech by tending to your own.

That's why you have to tend to your free-speech franchise every day, no matter where you live.

It's not a small thing I'm asking of you. I know from personal experience as a First Amendment advocate who works every hour of the day to persuade people not to piddle precious rights away.

It is an exhausting task, convincing people of the innate good in freedom of speech. To many people, it is an abstraction difficult to grasp and even more difficult to defend — especially if it's not your ox being gored by a presidential commission.

So, people must be won over to the innate good of freedom of speech, one by one, group by group, event by event. And once won over, won back again and again.

Today, there also are new voices of uncommon eloquence advancing the idea that not all restrictions on speech are bad.

That eloquence must be matched by those of us who believe that such thinking is a false and flawed notion of good social order.

We must make the case that to insist that some ideas are forbidden, some images are criminal, and some words are taboo is to rob both society and the individual of their vigor and our children of their future.

We must make the case that to exile some ideas, to imprison some images, to banish some words is anathema to the thoughtful individual and the careful society.

We must make the case that to defend free-speech principles is not to defend pornography, perversity, or perfidy. Instead, it is to defend the tradition that each act of expression will live or die on the strength of its appeal and utility, and that society will be strengthened by the process of debate and consideration.

There are, indeed, some words, images and ideas that are perverse, even evil, but none so much as the idea that government, the majority, or a politically astute elite can impose its list of restrictions on the rest of us.

Those who grab headlines for ripping up books in the marketplace, or garner praise for writing learned treatises in defense of censorship, or convene a commission to regulate new media run the risk of destroying democracy's dream.

It is up to the rest of us to remind them that freedom of speech is terribly threatened by those who prefer order and orthodoxy over the democratic din that free speech engenders.

Just this one last thing.

The lawmakers and regulators have learned an important thing.

It makes no difference whether the broadcast community has muscle or clout. When put to the test, when asked to make a choice as to what they really want from government, the broadcasters have a habit of saying nice things about free speech while gazing at it longingly. But invariably they will choose the bottom line, the competitive edge, the regulatory leverage, the next license renewal.

That's a short-term attitude that has left the broadcast industry today bound up with regulations and deal-making that in the long term has put it at a distinct disadvantage in confronting this increasingly complex world where the audience is fragmenting, the media are converging and the real muscle resides with the regulators.

Thank you.