Whatever Happened to Free Speech?   

A First Amendment advocate decries efforts to control expression on television.

Almost overnight, it seems, we have reached a point in our national life in which a critical mass of this country's most politically influential people accept the idea that government ought to control all manner of speech – particularly that which they fear or disfavor.

Nowhere is this more obvious than in the current firestorm over television violence. Congressional leaders, prodded by television critics and anti-violence activists, have coerced a "voluntary" agreement with the television networks to issue parental advisories on entertainment programs with violent content.

Given the fact that broadcasters traffic in the scarce and "publicly owned" electromagnetic spectrum, the industry has always been subject to more regulation than the print media. Rarely, however, have the regulations been so content-oriented and, indeed, content-specific.

There is little doubt the networks acted out of fear of even more regulation. As Sen. Howard Metzenbaum (D-Ohio) threatened during the Senate Constitution subcommittee's May 21 hearing on television violence, the television industry doesn't "own the airwaves..they have a franchise. What Congress giveth, it can taketh away."

What should be the universally appalling aspect of such a spectacle is that the parental advisories are but the beginning of broad-based content controls over once free and independent speech.

There has been little mention of this, however, in the media. The hearings on television violence were among the most explicitly speech-repressive events ever conducted in the halls of Congress. Yet most writers and columnists saw little cause for alarm.

Where was the flood of outrage, in the form of editorials, feature stories, op-ed pieces and syndicated columns, from journalists worried that Congress' heavy-handed coercion of the networks was an assault on the First Amendment? Reporters didn't seem to care.

Joe Urschel of USA Today referred to "network executives..squawking about victimization" and the "sanctimonious bleatings of TV's creative community." Walter Goodman wrote in the New York Times: "Cynicism does come easily regarding the conversion of the network brass... They still had their eye on the bottom line."

Newsweek, which was intrigued by the "downcast eyes and somber expressions" of the network heads, was on the side of Congress: "In adopting parental advisories, the networks have taken a modest first step – when what may be needed is a giant leap."

Op-ed editors weren't any more sympathetic. The Washington Post's Sunday Outlook section trotted out a former NBC executive who claimed to have been there 35 years ago when the order first came down to make programs more violent. And the Wall Street Journal offered up former Federal Communications Commission Chairman Newton Minow, who found a frighteningly eloquent way of advocating speech limits: "It is time we used the First Amendment to protect and nurture our children, rather than as an excuse to ignore them."

The media's lapse suggests that journalists are unaware of where their interests lie. After all, if it is permissible for government to intrude into the content of television entertainment, why not allow intrusion into television news as well? The First Amendment makes no distinction between the two.

Meanwhile, not one of the anti-television violence organizations has had a kind word for the advisories. Instead, they are calling for much tougher restrictions; the heads of two organizations have expressed disappointment that the advisories do not cover programs with "sexual content and strong language."

If one could be assured that Congress would limit its intrusion into television programming just to the violence advisories, and if the advisories were the only example of government intrusion on free speech, one could dismiss the whole affair. Unfortunately, neither supposition is true. Congress is already moving beyond the parental advisories, and government intrudes on free speech everywhere.

Rep. Edward Markey (D-Mass.), chairman of the House Subcommittee on Telecommunications and Finance, has introduced legislation requiring all television sets to be equipped with a so-called "V-chip." When activated, this chip would block out all programming carrying a "violence" rating.

In addition, Sen. Ernest Hollings (D-S.C.) has introduced a bill that would prohibit the airing of violent broadcasts during times when children are likely to be watching. Rep. John Bryant (D-Texas) has introduced legislation requiring the FCC to consider broadcasters' attempts to reduce television violence when renewing licenses. Bryant's bill would also allow the FCC to create and enforce violence standards.

As for government's intrusion into free speech generally, consider:

•By most accounts, Congress will resurrect the so-called Fairness Doctrine this year. The doctrine was rescinded in 1987 based on FCC findings that it chilled the coverage of controversial issues, and was likely unconstitutional under the First Amendment.

•Led by a zealous commissioner and prodded by activists, the Food and Drug Administration has begun a widespread crackdown on the promotional and educational speech of drug companies. The FDA has ruled that a drug company may not give doctors an independently published and peer-reviewed medical textbook because it mentions off-label uses (not disclosed in package inserts) for the company's products. Though commercial speech is accorded less First Amendment protection than core speech, it's no easy feat to equate a medical textbook published by a major book publisher with, say, pharmaceutical ads.

•The FDA has also issued notice of its authority over drug company video news releases. In a 1991 letter, the FDA said that video news releases should be submitted to the agency for review at the time they are initially disseminated.

•In 1990, Congress passed the Children's Television Act. This act requires television stations, as a condition of their license renewal, to provide programming that serves "the educational and informational needs of children." This explicit governmental control of program content diminishes editorial discretion in two ways: by requiring broadcasters to produce a particular category of programming, and, ipso facto, by requiring them to drop programming they would have otherwise aired.

•With the encouragement of environmental activists, in 1990 the California legislature enacted a bill making it unlawful for manufacturers to make true environmental claims about their products unless those products' environmental attributes meet certain vague and arbitrary definitions established by the legislature.

All of these attacks on free speech have a number of things in common. All are either happening now, or have happened within recent years. All have come about with the encouragement of "activist" or "special interest" groups. And finally, while all do real and direct damage to free expression, they do very little, if anything, to cure the underlying problems they are said to address.

Does anyone really believe, for instance, that portrayals of violence in television programs are even remotely as much to blame for violence in society as broken homes? Or chronic poverty? Or a legal system which does not provide for the sure and swift incarceration of hard-core criminals?

Sometime within the past few years, a lot of people stopped believing in the old and uniquely American ideal of freedom of speech – of speech that is constitutionally guaranteed against any government restrictions.

There has always been a certain amount of government regulation in order to ensure broadcasters are serving the public interest. The question now is whether it's gone too far, particularly given the number and variety of television programming options.

How did we go from "Congress shall make no law.." to a society in which various interest groups advance their causes by lobbying Congress for all manner of speech restrictions?

The answer is values. Historically, freedom of speech has been regarded as the cornerstone of democracy and accorded a privileged status – guaranteed by the Constitution – as an absolute value.

Now, however, free speech has become just another worthy goal to be balanced against other worthy goals. When free speech conflicts with another value – child welfare or public health, for example – speech is often the loser.

The subhead of a Washington Post feature by Megan Rosenfeld summed up one journalist's attitude: "Forget the First Amendment. When it Comes to TV Violence, All I Care About Is Protecting My Kids."

But it is freedom of expression that makes the pursuit of all other political and social values possible. Clearly the Founding Fathers regarded speech as worthy of special consideration. Nevertheless, the values-balancing continues as every special interest tries to hold its values above the First Amendment.

Many liberal and broad-minded people seem to think that if things get too out of kilter the Supreme Court will set things right. Don't bet on it.

The court's First Amendment jurisprudence is more porous than is generally recognized. The court has wavered between treating free speech as an absolute value and just another social goal to be balanced and traded off.

A majority of the current court expresses its "conservatism" by deferring to legislative bodies. Moreover, as shown in the parental advisories, it is now possible for Congress merely to threaten in order to win a "voluntary" agreement which is not actionable in any court.

Even liberals are becoming unreliable supporters of free speech. In the past, conservatives were rightly criticized for their disregard of First Amendment freedoms. When one spoke of censorship, the censors were conservatives – setting up local censorship boards for movie theaters, banning books from school libraries, heading up crusades to outlaw adult entertainment, and so on.

Yet recently those calling for speech restrictions have come mostly from the liberal side. Certainly the Rev. Donald Wildmons of the world are still out there, but the leaders in this latest round of speech restrictions have been staunch liberals like Sens. Metzenbaum and Paul Simon (D-Ill.) and Rep. Markey.

Some blame must also rest with those of us who consider ourselves defenders of free speech. If one were to assemble two groups – special interest activists and free speech advocates – which do you think would be the larger? Which would be the fiercer and more determined?

Some First Amendment advocates have become timid and even apologetic for defending speech rights. After all, what is one little restriction compared to the health and safety of children, and many other social concerns?

The answer is that one restriction is only the beginning – and the beginning is long past us. Every blow to the First Amendment weakens it and leaves supporters less able to defend it from the next blow – and the next.

We must embrace anew the concept that speech is a unique commodity in our democracy. Ultimately we will be closer to solving the problems of society, not when we have regulated speech about every unpleasant topic, but when we allow speech to be used freely to discuss, to persuade, to precipitate change. l