Internet Decency and the First Amendment

By Steven Hill, deleted. Posted April 26, 2000.

Now that a federal appeals court has blocked the part of the Telecommunications Act concerned with indecent material on the Internet, First Amendment advocates can all breathe a sigh of relief.

Or can we?

The parts of the Telecommunications Act of 1996 that remain are far more damaging to the First Amendment than the sub-section known as the Communication Decency Act. Taken as a whole, the Telecommunications Act is a kind of "free trade" agreement for the corporate media. The bill deregulates the telecommunications industry and makes takeovers and mergers even easier, like Disney's takeover of ABC which created the world's largest media company. Many experts predict the Telecommunications Act will inevitably result in increasing media centralization and job losses as merging media corporations slim down. Why then, has so much of the protest and litigation focused singularly on the Communication Decency Act?

Here's a further subtlety to ponder: the ACLU's lawsuit that defeated the Communications Decency Act used an anti-censorship argument to fight government regulation of Internet content. But the corporate media love to manipulate anti-censorship arguments. The Turner Broadcasting System used an anti-censorship argument in Turner Broadcasting System v. Federal Communications Commission to try and stop a 1992 federal law that requires cable systems to set aside up to one third of their channels for local broadcasts. Anti-censorship arguments have also been used to fight set-asides for minority-owned businesses of frequencies for cellular communication services, and to fight limitations on how much frequency any existing cellular companies can control in a given service area. Corporations and the ACLU have used anti-censorship arguments to block attempts at effective campaign finance reform, and to fight restrictions on commercial speech and advertising, and to sue "truth in advertising" laws that prohibit political campaigns from knowingly making false statements.

Unfortunately, anti-censorship policies fit in perfectly with a corporate media agenda. As the fight over NAFTA showed, corporations want deregulated environments. When the corporations are media conglomerates, anti-censorship policies have the same effect as NAFTA. They become the opposite of anti-trust policies, creating a "free trade" environment where the wealthiest media companies can grab bigger and bigger chunks of an unregulated market.

So, before we celebrate too wildly the federal appeals court's acceptance of an anti-censorship argument to strike down the Communications Decency Act, we better ask ourselves: have we won the battle only to inadvertently contribute to losing the war?

Effective speech in the modern age is not free. In fact, it's quite expensive, and very few can afford it. Those with the most money end up with the most speech. Certainly one of the goals of the First Amendment should be to enhance -- in the words of free speech champion Justice William Brennan -- a "robust public debate" of significant social issues. The robust debate principle recognizes that sometimes in a crowd of speakers it is necessary to turn down the volume of certain loud and clamorous speakers -- like Disney, NBC, or Rupert Murdoch -- in order to give others a chance to speak. Or at the very least, it's necessary to turn up the volume of others who can't be heard, with policies like the Fairness Doctrine, a beefed-up public broadcasting system, the National Endowment for the Arts, and set-asides. And in certain cases, where there are one or two loud-mouths in the group completely dominating the discussion, it might be necessary to ask them to shut up for a little while.

Who but the government has the capacity to act as a First Amendment referee in these instances? The government already acts as a referee in matters of civil rights, education, low-cost housing, and in some countries, national health care. Why not in matters of the corporate media and the First Amendment? If the government isn't allowed to regulate corporate behavior -- media or otherwise -- who can? Certainly not consumers or the free market.

Yet this is exactly the type of regulation of corporate media that anti-censorship policies cut off at the knees. The entire Telecommunications Act should have been opposed, but not because the government does not have a compelling interest at times in acting as referee in matters of speech. Rather, it should have been opposed as an infringement on the public discourse and the First Amendment that is increasingly being dominated by multinational corporations and market forces. This would have required a more nuanced and sophisticated attack than an anti-censorship argument can muster.

The First Amendment, in order to be useful in the modern age, must be able to distinguish between the "cheap" speech of most individuals and small institutions, and the "wealthy" speech of multinational corporations and rich individuals. It must also be able to distinguish between what is said, and how often and how loudly certain dominant speakers say it. Each of these should be guided by a different set of laws and policies. But the anti-censorship approach treats corporations like individuals, and treats volume like content. It has a single fundamentalist standard for the First Amendment that only seeks to handcuff the government in matters of speech. It does not recognize that market forces can also be an enemy of free speech.

If we are to imbue the First Amendment with democratic and egalitarian values, we will have to divest ourselves of the naive notion that Big Brother comes only in the guise of government or law enforcement bureaucrats. Big Corporation is also watching you, and trying to gobble up all the public speech it can. And it is using anti-censorship arguments to further its goals. We should be wary about helping to fashion a legal hammer that will be used to bludgeon us over the head.



Journalist Steven Hill works for an Internet service provider.

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