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

Wednesday, October 25, 2000
Robert Corn-Revere

Atmosphere ripe for
further regulation of broadcast media, say panelists

ARLINGTON, Va. — The future of First Amendment rights for
broadcast journalists will be decided by how the Supreme Court handles and
defines developing technology, a constitutional expert says.

“The regulation challenge of the future will come from the
concern of having too much free speech” that offends people, said Robert
Corn-Revere, lawyer for Hogan & Hartson, yesterday at a conference,
“The Electronic Media and the First Amendment in the 21st Century” at
The Freedom Forum. The conference was co-sponsored by the National Association
of Broadcasters Education Foundation.

Hate speech and sexually explicit speech will be the main
battlegrounds for the next 10 years in First Amendment law, Corn-Revere said.
He said regulation efforts would be motivated not by a popular desire to single
out and punish individuals for expressing themselves, but by the public’s sense
that it was being inundated with objectionable material.

Corn-Revere made his comments during a panel discussion on
“Competition, Convergence and the Constitution: Will Marketplace Changes
Affect First Amendment Standards for Electronic Media?”

So far, the Supreme Court has applied First Amendment standards in
cases regarding the Internet. In Reno v.
it decided that the Net was entitled to the same First
Amendment protection as print. But speakers worried that the sheer volume of
offensive messages and images flooding the online world would invite a
regulatory backlash.

“The Internet will test our commitment to free speech,” said
Donald B. Verrilli Jr., an attorney with the law firm Jenner & Block.
“Extremist points of view are more readily available” online than in
other media, he noted.

“We’re moving to reaffirm our First Amendment rights” as a
country through technology, Verrilli said.

Andrew Schwartzman

In addition to Supreme Court decisions, the upcoming election will
determine how law will influence the broadcast media and its relationship with
the First Amendment, said Andrew Schwartzman, president of the Media Access

“The people who decide (on broadcast regulations) won’t be the
same as they are now,” Schwartzman said.

In regard to the presidential candidates, Corn-Revere said Al Gore
would be much more concerned with media and broadcasting consolidation if he
became president, but that “there is no difference between (Gore and Bush)
regarding any content regulations.”

In Schwartzman’s view, “Al Gore is more likely to support
low-power FM radio for people to have access to markets that are seen as
unattractive to corporate radio stations.”

On another presidential campaign-related topic, Corn-Revere called
unconstitutional a recently discussed idea to require Fox and NBC to give
candidates free air time for not showing the presidential debates. Such
regulations would amount to content control, he said.

Helgi C. Walker

One problem in broadcast regulation is that the courts hold different
kinds of broadcasting to different requirements, said Helgi C. Walker, senior
legal adviser to Commissioner Harold W. Furchtgott-Roth of the Federal
Communications Commission.

Corn-Revere agreed. “How the programs are sent to the [television
set] determines your First Amendment protection,” he said. Cable, digital
signals, analog signals and the Internet all have different protections and are
held to different standards and levels of scrutiny regarding content control,
he said.

If FCC commissioners were shown the same program on five different
television sets, they would not be able to tell how those programs were
broadcast, nor which content regulations should apply to each TV, Verrilli

It all comes down to power, Walker said. “There is a natural
tendency in government to want to extend its reach of power … . It’s
human nature for government,” she said.

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