American Broadcasting and the First Amendment, by Lucas A. Powe, Jr., Berkeley: University of California Press, 295 pages, $22.50
In this splendidly written book, Lucas A. Powe, Jr., examines an issue that has drawn little scholarly attention—the rationales for and results of federal regulation of the broadcast media. Powe, a professor of law at the University of Texas, takes a position very much at odds with the orthodox view that regulation is on the whole a good thing. Powe argues that federal regulation has been persistently misused to stifle criticism of those in power and has reduced the usefulness of broadcast media in promoting free speech by inhibiting wide-open discussion of issues. His argument, cogently presented and well documented, has attracted widespread attention, even among policymakers.
Powe's book offers a much-needed counterweight to the frequently heard claim by many liberal intellectuals that we need a new First Amendment in which the government has an affirmative duty to regulate all communications media, including the traditionally untouchable print media, so as to guarantee "fairness" and "access for all viewpoints." These intellectuals fear that the dissemination of ideas and information will become the exclusive prerogative of the very wealthy, leading to a society in which the only ideas heard are those that support the status quo.
There is, of course, nothing new in the assertion that society must be protected from the influence of the rich. Variations on that argument have been around for a long time. Nor is Powe's book intended as a direct refutation of that position. Instead, he calls into question the notion that we can count on such regulation to accomplish its intended goal.
Powe shows that, from its earliest years on, federal regulation of broadcasting has repeatedly been used to silence or intimidate people who would use the airwaves to criticize those in power. The Federal Communications Commission (FCC), with its various regulations (especially the now-defunct Fairness Doctrine) and its power to decline to renew a station's license, has been used by both Democratic and Republican administrations to strike fear into the hearts of opponents.
Especially interesting is the chapter on the assault on the media during the Nixon administration. But for the intervention of Watergate, Powe shows, Nixon might very well have succeeded in silencing many of those who opposed him.
Economists of the "public choice" school of thought have long argued that we should not expect regulators to act according to the so-called public interest. Rather, their regulating will largely reflect their own self-interest. Those who think government regulation is a means to make markets act in ways more consistent with what they see as the common good are almost certain to be disappointed with the results.
Powe's history of broadcast regulation is entirely consistent with the public choice critique of regulation in general. It should invoke rethinking about the advisability of reinterpreting the First Amendment in a manner that would require the FCC to guarantee "fairness."
Powe's book is also especially good in its analysis of the rationale for governmental regulation. Ask almost any legal theorist why we regulate broadcasters but not publishers, and the instant reply is "scarcity." Supposedly anyone can print a pamphlet or begin a newspaper, but because of the finite limits of the electromagnetic spectrum, not everyone can communicate over the airwaves. Hence the need to regulate the latter.
Powe does a marvelous job in dissecting this feeble line of reasoning. "It is true that if everyone broadcasts, no one can be heard," he writes. "But it is also true that if everyone at a park speaks at the same time, no one can be heard and, equally, that if you write your message on a piece of paper and I write mine over it, no one can read your message." But, he observes, "the real-world solutions are that most people listen rather than speak at the park and that our system of property rights prevents the person who does not own the paper from writing over the owner's message. It is not technical scarcity that is at work but lack of a property mechanism to allocate the right to broadcast."
Exactly. Our great mistake in this field was made very early, when legislators decided that the solution to the problem of stations interfering with one another's broadcasts was federal licensing and regulation rather than allowing the courts to work out the problem by applying common-law property concepts to radio and television broadcasting. Had we followed the latter course, we might have suffered with a somewhat untidy broadcast spectrum for a longer period of time, but we would not have had to endure the long-term problems that have accompanied government regulation.
Powe's research is solid, his logic sharp, and his writing engaging. I predict many future citations of his work in law review articles, essays on public choice theory, and (I hope) some court opinions.
George Leef is a professor of law and economics at Northwood Institute in Midland, Michigan.