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 AJR  Columns :    THE PRESS & THE LAW    

From AJR,   March 1994  issue

A SLOW Sign on the Information Highway   

The Clinton administration seems to be ignoring First Amendment concerns.

By Lyle Denniston

The political engineers in Washington drafting plans for the information superhighway seem to be ignoring the SLOW sign that the First Amendment has put along the route. The traffic cops at the U.S. Supreme Court, however, may be lurking just around the next curve.

On two consecutive days early this year, two official events illustrated the legal conflict that may arise as federal officials move to write specifications for what they call a "National Information Infrastructure." That is a bureaucrat's phrase for one giant, interconnected, easy-on, easy-off superhighway of information, with messages and data in a wide variety of electronic forms ricocheting across the nation and around the world.

In the first event, Vice President Al Gore made a major policy speech in Los Angeles to the Television Academy, disclosing some of the specifics of the Clinton administration's plans. One point he made very clear was that the government proposes to mandate open access. "We cannot permit the creation of information bottlenecks that adversely affect information providers who use the highways as a means of supplying their customers," he said.

By "bottlenecks" Gore meant owners or operators of data or video channels who refuse to carry the messages that the government fear could not get onto the superhighway under their own power (or merit).

That, of course, raises serious First Amendment questions. In this context, a bottleneck would mean a communications manager exercising a choice among different messages and deciding which one to convey in the same way a newspaper editor selects a story or a television station picks a program.

But there was not a word about the First Amendment in the Gore speech. He mentioned "the free flow of information." But he did so under the assumption that the information industry is becoming a public utility or a "common carrier" like the old telephone company, duty-bound to let anyone make a call, and not a private information-selection entity akin to a newspaper.

The problem is that the explosion in technology for originating and transmitting information has obliterated those old boundaries, and it is far from clear whether the First Amendment will allow the government to treat the entire industry as a common carrier, with open access to everyone's system a condition imposed by government.

The day after Gore's speech, his failure to mention the First Amendment seemed a glaring omission. In Washington, the Su-preme Court examined the very question of government power to force open access on the information industry. The initial impression the justices created was that the government might have to leave far more discretion than the planners want to private firms in deciding which messages get transmitted by data or video channel.

The case before the court tests almost perfectly the vice president's open access thesis: It is a case on the constitutionality of Congress' 1992 decision to force cable television stations to carry, free, the entire programming of local TV stations because Congress feared the locals were being left out.

The federal government argues that there was "market dysfunction" in the broadcast industry, due to cable TV's emergence as an information powerhouse with control of channel access – essentially, becoming a bottleneck of the kind that Gore warned against. So, the government contends, Congress was free – without violating the First Amendment – to order open access for the messages that supposedly were being silenced.

Justice Antonin Scalia, however, told the government's lawyer, Solicitor General Drew S. Days III, "I don't see how there's this great bottleneck." Scalia noted the wide variety of outlets in the information industry, remarking that when it came to including all voices, there was "much more scarcity in a single daily newspaper." Justice Sandra Day O'Connor told Days bluntly how difficult it is to justify constitutionally a decision by government "to set aside a whole medium for the benefit of a certain class of speakers" preferred by the government. Scalia chimed in that the mandated cable access command by Congress was a "blunderbuss."

No matter what specific problem Congress was trying to solve, Justice David H. Souter said, it was justifying its action on the basis of a claimed power to control the content of the messages available to the public. Days said this was done to assure "diversity" in messages – a hoped-for variety that the government feels is entirely within the government's power to require if private selection falters.

Days tellingly suggested that what was before the court was the same issue Gore had addressed the day before: "There must be open access." l