Report gives government low grades on First Amendment actions

Wednesday, March 11, 1998

WASHINGTON — When it comes to actions concerning the First Amendment rights of the news media, the executive and legislative branches of government are bordering on failing grades and the courts dropped a whole letter grade from last year, the Media Institute reported Thursday.

The executive branch and the legislatures each received a D+ and the judicial branch a C in “The First Amendment and the Media — 1998, An Assessment of Free Speech and a Free Press,” a report released by the institute.

“Those who are elected and appointed to uphold the Constitution are doing a poor job when it comes to the First Amendment,” Richard T. Kaplar, vice president of The Media Institute and editor of the report, said. “Without the checks and balances of the judicial branch, the First Amendment would be shredded beyond recognition in the political blender.”

The report examines government actions on 30 separate issues affecting new media speakers and the press and ranks the over-all performance of the three branches of government. The actions included four categories of speech: online issues, broadcasting and cable television, commercial speech, and libel law.

“The main value of this report is to serve as an ongoing review of First Amendment developments as they affect the mass media,” said Bob Corn-Revere of Hogan & Hartson and chairman of the Institute's First Amendment Advisory Council. “Just keeping track of the number of free-speech controversies we face speaks volumes abut the politics of our times.”

At a press conference at the National Press Club, authors of the report warned of troubling future trends to watch out for:

  • “Markedly inferior” First Amendment protection for broadcasting and cable television.
  • Use of the “well-being of children” as a rationale for restricting speech.
  • Extending advertising bans to even more products, such as high-fat and high-cholesterol foods.
  • Increasingly large monetary awards in libel verdicts.

Among reasons cited in the report for the legislatures' low grade was continuing attempts to restrict online speech, including commercial e-mail and bomb-making information on the Internet, and bills that would reduce the security of encrypted data.

The executive branch was faulted for actions that included the FCC's closed-captioning requirements, the administration's “key escrow” initiatives for data encryption, and the FDA's sweeping restrictions on tobacco advertising.

The report praises the Supreme Court for declaring unconstitutional the Communications Decency Act regulating speech on the Internet, as well as courts striking state restrictions on the Internet and encryption-export controls. But the graders were concerned by the courts' “lackluster performance” on the must-carry and channel-scrambling issues affecting cable television.

“The grades are not as important as the substance of the report,” Corn-Revere said, “but they do provide a shorthand benchmark by which to evaluate the level of official respect for the Constitution.”

The grades were given by members of the Institute's First Amendment advisory council, made up of lawyers, educators and activists. Asked why the judicial branch fared better than the executive and legislative branches, Corn-Revere said:

“The courts, by their nature, must be concerned with constitutional values and must specifically address them. The political branches often don't deal with the constitutional questions at all, much less in a systematic or coherent way. In this mindset, the First Amendment is a barrier to be overcome or explained away, not a value to be preserved.”

The report, “The First Amendment and the Media — 1998,” costs $14.95 (plus $2 shipping) and is available from the Media Institute, Publications Dept., Suite 301, 1000 Potomac St., N.W., Washington, DC 20007. Orders may be phoned to 202/298-7512 or faxed to 202/337-7092. Ordering information is available on the Media Institute Web site.