The First Amendment Under Siege

From left, right, and center, freedom of speech has a host of new attackers.

Just over a year ago, a Florida jury deliberating a murder charge rejected the defense attorney's arguments that his client was "temporarily intoxicated" by so-called television violence; it found the defendant guilty. Notwithstanding this verdict, the widely publicized trial has heaped coals on the fires lit by critics of television violence.

Those fires have had their effect. In addition to the institution a few years ago of the "family viewing time" policy by the networks (in response to vague threats from both the Federal Communications Commission [FCC] and congressional leaders), the last few years have seen the gradual phasing out of most cop shows (generally regarded as the most violent) and their replacement by situation comedies and "family drama."

Pressure against television violence, however, is only one component of a wide-sweeping attack on the television networks—and, more broadly, on the press as such. Two other major components pertain to sex and politics.

Opposition to the inclusion of "sexual" material in television and radio programming has been taken up by numerous religious organizations—notably, the Reverend Jesse Jackson's People United to Save Humanity ("Operation PUSH"), which has publicly proclaimed its "crusade to clean up the airwaves." The pressure such groups can exert is felt, not only by the broadcast networks, but also by small cable-TV operators, who have found X-rated movies to be a powerful but legally dangerous spur to subscribers.

Meanwhile, legal battles over the application of the fairness doctrine and the equal-time provision to political issues have become progressively more frequent. News monitoring groups such as Accuracy in Media have documented television, radio, and newspaper news miscoverage and bias, have written letters to editors and producers, and have initiated FCC actions based on the fairness doctrine. One consequence of this kind of legal action has been the virtual disappearance of advocacy advertising. When Texaco, for example, tried to buy ad time three years ago endorsing vertical integration of the oil industry, only one station consented to run the commercial—and it was subsequently forced to give free air time to the "Energy Action Committee" for a reply.

USING THE BIG GUNS

The point is not that media criticism exists; in some cases it is richly deserved. The point is that television's critics have not confined themselves simply to criticism but have taken legal actions, through the FCC, in an attempt to use force against the networks to secure their goals.

One of the most devastating tools employed by such critics is the license challenge. Under federal laws, all broadcast stations must periodically petition to renew their broadcast license. If another group enters its petition for the license, the license holder not only has to prove that its own record satisfies FCC requirements for local-affairs programming, public access time, news coverage, etc., but must also answer any specific charges brought by the other petitioner, on pain of losing its license to the challenger. In 1966 a crucial court ruling held that a challenging "citizens group" didn't even have to be capable—technically or financially—of running the station for the control of which it was petitioning. Since then, such challenges have become increasingly popular. As one recent case showed, even when the challengers had repeatedly failed, the station owners' inability to plan more than a few years ahead and the prospect of more legal trouble in the future caused them to sell their station.

Legal action against the broadcast media does not stem only from citizen pressure groups. In the last few years the FCC and federal courts have also acted on their own to order the divestiture of many radio and television stations. In one controversial case, a Washington, D.C., news group was ordered to divest its broadcast facilities from its print publications. Although an early June Supreme Court decision reversed this order, it left standing an FCC policy to prevent newspapers from acquiring broadcast outlets in the future. Nationwide, in the name of broadcast diversity, a number of joint AM-FM radio stations have been ordered to create separate management and programming formats.

Finally, television and radio advertising is also under attack. Cigarette advertising was outlawed several years ago. Now, on the heels of growing criticism of advertising directed toward children—particularly "junk-food" advertising—the Federal Trade Commission (FTC) has begun investigations and has threatened actions ranging from requiring equal-time counteradvertisements to outright bans.

FREE SPEECH CURBED

Other legal actions against the press have not been confined to the broadcast media. For example, news reporters have recently become increasingly subject to "gag orders"—court rulings forbidding the reporting of events in a particular trial or other court proceeding.

Pressure on the print media has taken a number of forms. There are, first, outright attempts to regulate the press. Only four years ago, for example, the state of Florida tried to enact an "equal time" law for newspapers; it would have required a newspaper to give free space to political candidates editorially criticized by the paper. That law was ruled unconstitutional, but the trend continues. Currently the Securities and Exchange Commission (SEC) has asked for authority to regulate investment advisory newsletters. It wants to force public disclosure of the finances of such newsletters, as well as regulate the qualifications of their editors for such work. In addition, several states, which retain the authority to license these publications, have recently increased the license fees drastically, forcing some newsletters to consider closing down.

Antitrust laws have also been used to threaten the press and freedom of speech. For example, following widely publicized newspaper purchases two years ago by the Australian businessman Rupert Murdoch, there was consideration of a possible congressional investigation into the activities of newspaper tycoons. In addition, some businessmen have been warned that, since prior publication of projected price changes may help a competitor to change his own prices, they may be subject to price-fixing charges. Informal discussions between engineers employed by competing companies have also been subjected to this interpretation, and recent antitrust law makes those involved subject to jail terms if convicted. The prospect has even been raised that professional colloquia among engineers could for the same reason be ruled altogether illegal.

Another broad area of regulation over freedom of speech is campaign financing legislation. The 1974 Federal Campaign Financing Act, among other things, set upper limits on corporate and individual monetary contributions to certain federal political campaigns and allocated federal tax funds for campaign purposes, making every taxpayer the involuntary supporter of every funded candidate. A Supreme Court decision reversed some aspects of the law, but corporate limits and taxpayer funding are still in force.

A recent Massachusetts state law prohibited corporations in the state from supporting or commenting upon state referendum issues that did not "directly" affect the interests of the corporation. This law was expressly backed and passed to prevent Massachusetts businessmen from using their corporations' money to fight graduated income tax referenda. One effect of the law had been the refusal of some businessmen to even comment on referenda without prior legal advice. This law was ruled unconstitutional last spring, although on shaky grounds.

Finally, the traditional First Amendment whipping boy—pornography—continues to face regulation. Following the 1973 Supreme Court decision that gave community opinion the right to arbitrarily ban what it regards as "obscene," there have been numerous obscenity convictions around the country. One New York pornographer has been convicted of obscenity for violating the "community standards" of Wichita, Kansas. Carnal Knowledge (a movie that, ironically, far from exciting any "prurient interests," is a cynical pandemic attacking romantic relationships as neurotic role playing) fell prey to censors in Georgia. Most recently, a Columbus, Ohio, district attorney found his way to fame by getting a Cincinnati pornographer convicted on an obscure "racketeering" indictment.

In some of these cases, such as the imposition of "gag rules," the issues involved are complex. But in most the issues are clear-cut, and when contemplating the whole ensemble, it is evident that it adds up to an across-the-board—if piecemeal—attack on the First Amendment, on the right of a free press and free speech.

WHY CONTROL THE MEDIA?

What can be the rationale for such an attack? Many of its leaders must be aware that they are asking for controls on the press; why do they think they can (to say nothing of should) get away with it?

For the airwaves, the answer is well known. The theory behind the fairness doctrine and the equal-time law is that the airwaves, because they are limited, are public property, being "worked" for the public good by what is to be regarded as a "concessions" industry. "Public interest" in how they are "worked" takes precedence over the freedom of speech of broadcasters. As a secondary theme, there is the argument that, somehow, freedom of speech just doesn't apply to "commercial speech" such as advertisements. Michael Pertchuk, President Carter's appointed head of the FTC, sounded both lines in a TV Guide interview (November 12, 1977) concerning children's advertisements:

What is the justification for spending hundreds of millions of dollars on advertising, which is carried by licensees on the public airwaves and directed at 3- and 4-year old kids? What is the social benefit of this?

And in answer to a question on the First Amendment:

I think that the First Amendment rights of an adult to have access to information an advertiser wants to give him are really different from the First Amendment right of a child not to be bombarded by certain kinds of ads. The First Amendment is not an absolute document, especially when applied to commercial speech.

The "limited airwaves" argument, however, doesn't go over so well any longer; in fact, the premise that channels are significantly limited has been thoroughly refuted since the ultrahigh frequency (UHF) spectrum was opened up some 20 years ago. As MIT political science lecturer Edwin Diamond pointed out in a two-part TV Guide article (October 29 and November 11, 1977), US broadcast outlets already outnumber daily newspapers by a factor of five-to-one, and cable-TV opens up a virtually unlimited prospect for more stations. Cable-TV, incidentally, although it is not limited by the number of available channels, and although it involves no interference with the airwaves, is also controlled by the FCC and is forbidden in some areas. In the face of the collapse of the "limited channels" argument, critics of the networks have fallen back on a very dangerous but popular idea that could lead to further regulation of the whole press industry: the idea of the "public right to know."

THE "RIGHT TO KNOW"

This idea is the formulation usually given to a "free" press in collectivist political theories. A "free" press, in these theories, is not the right of individuals to spread their ideas through their own efforts but the "right" of society to "know," to have a kind of general access to facts and (usually) to the major viewpoints on any controversial issue. According to this principle, the needs of society, not the decision of the publisher, are the proper determinant of the contents of the press.

The "right to know" was a major factor in a recent Supreme Court decision that ruled unconstitutional a ban on professional advertising by the American Bar Association (ABA). Why this ban constituted censorship is not a completely obvious issue and calls for a word of explanation. Normally, if one wanted to join a professional organization, one would have to choose to abide by the rules of the organization and no issue of free speech or censorship could arise. The ABA, however, is not a fully private organization. Membership in many of its state affiliates is a legal requirement for practicing law, thus making the ABA, in part, a modern-day equivalent of the medieval guilds and making its internal rules the equivalent of legal requirements for law practice. With government force behind it, the ABA advertising ban did constitute censorship and a blatant violation of a lawyer's rights. This case was not presented before the Court, however, as an issue of a lawyer's right to advertise his rates. Advertising, after all, is "commercial speech," which has traditionally been denied free speech rights. Instead, the suit was brought by "consumer advocates" who claimed that the public has a "right to know" what rates are being offered. The Supreme Court agreed.

The "right to know" approach is also seen in FTC Chairman Pertchuk's remarks quoted above. The First Amendment, for Pertchuk, does not pertain primarily to the advertiser's freedom, but to the right of the listener "to have access to information."

As a final example, the Supreme Court decision on the Massachusetts referenda campaign law mentioned above was also based on the public's alleged "right to know." The Court ruled that there is significant "social interest" in what corporations have to say on public issues.

The ABA case illustrates what's wrong with the "right to know" approach to the First Amendment. What if most lawyers voluntarily agreed not to advertise their rates? Logically, the "right to know" would mandate their disclosure, voluntary or involuntary. Who would publicize the resulting information, and at whose expense? Logically, the "right to know" would mandate that somebody do it, voluntarily or involuntarily; and that somebody pay, voluntarily or involuntarily. The "right to know" requires for its implementation the violation of the individual rights of the lawyer, printer, and taxpayer and can be no right at all. That this prospect has not occurred is due only to the fact that there are enough lawyers only too happy to advertise their rates.

In such broader contexts as journalism as such, however, there is no lack of unheard facts or points of view; and there are no objective criteria for determining which of them should be legally forced into the evening news or the morning paper. It is these broader contexts that are in danger of eventually coming under control via the "public's right to know." As usual when First Amendment rights are under attack, it is the conservatives who are leading the charge. Liberals like Eric Sevareid are saying:

I have never understood the reasoning of those critics who seem to be saying that broadcasting will enjoy full rights under the First Amendment when it is worthy of them. Constitutional rights do not have to be earned; we were all born with them.

In contrast, it is a conservative, Kevin Phillips, who has been laying the groundwork for a controlled press.

Phillips was a frequent contributor to the discontinued TV Guide "News Watch" column, and his columns were marked for the frequency of his appeals to the fairness doctrine and calls for the divestiture of the big networks. In one of his last columns (November 12, 1977) he provided the philosophic foundation for these appeals—a minor variant on the "right to know" theme.

From a traditional perspective, it's ironic that conservatives, in other situations the first to support and maximize private-property rights, are arguing for interfering with the "private" prerogatives of the networks, but I think they're correct—there is too much of a "public" interest here to permit exclusively private decision making.…Throughout US history, when "private" businesses of a certain sort—from banks and railroads to public utilities—have achieved a critical public importance, they have been subjected to increasing regulation in the national interest. Now it would seem that the information-and-opinion industry is coming under the same guns, notwithstanding self-interested assertions that it ought to be untouchable under the First Amendment.

These remarks conceal a multitude of sins—for example, Phillips' ad hominem reference to "self-interested assertions." But his central argument is a standard statist line that would justify (and, as Phillips reminds us, has been used to "justify") the most fantastic violations of rights and government policies of economic intervention. There is no objective way to draw the line between "critical" public importance and "subcritical" public importance and "minor" public importance. There is no way to implement even the smallest such "regulation in the national interest" without violating individual rights. And Phillips presents no reasons why such regulation is morally justified—only the stock assurance of any conservative that that's the way it's always been done "throughout US history."

In spite of the serious nature of Phillips' proposals, however, one can humorously appreciate the forthcoming reaction of Phillips' liberal opponents to his appeal to their own principles. His argument is the one they cherished for decades, and his examples are among their prized accomplishments. However wrong, Phillips is at least consistently wrong, and he has caught the liberal camp in an embarrassing contradiction.

The liberals and conservatives have always represented a false alternative on these issues: the conservatives favoring economic freedom while fighting for every control they could get over ideas and personal moral codes; the liberals fighting for a free press and moral choices while tying up the economy. In neither camp was there a consistent advocate of freedom in both respects—an across-the-board, principled advocate of individual rights. As Phillips has shown, however, there are those who have succeeded in finding the consistently wrong position.

REVERSING THE TREND

When a country is headed toward statism, there are at least two requirements for a peaceful reversal of its path: freedom of the press and speech, and the legal power to change the government. The first is necessary to spread the right ideas, and the second to implement them politically. This fact makes the freedom of the press today a more urgent issue than ever.

Fortunately, the prospects are not altogether bleak. The SEC proposals have lined up many businessmen—if not conservative political thinkers—on the side of a free press. And the growing pressure on the press has at least alerted many liberals like Edwin Diamond to the threat of potential censorship. If Phillips and his allies receive enough of an indignant rejection, the time might actually be ripe to reduce the FCC by congressional action to a "watchdog" role of policing interference in the airwaves. Indeed, Senator William Proxmire, among others, is backing legislation to abolish the fairness doctrine. (Unfortunately, it is not yet clear what this would mean in terms of FCC licensing practices, which are just as dangerous.)

Freedom of speech and of the press is an issue of major importance to those who, unlike liberals and conservatives, consistently opt for liberty. With writers like Phillips using the liberals' own arguments, liberal defenders of the First Amendment may be unable to give the issue the support it needs. If so, those who can give it such support will have to make themselves heard.

Mr. Wright is finishing doctoral research in physics at Boston University. Since 1973 he has been a principal contributor to and since 1976 has been editor of Ergo, an independent student weekly founded at MIT in 1969. This article was originally published in Ergo and was adapted for REASON by the author.