Thursday, July 02, 2009

Independence Day - 2009

The Declaration we celebrate proclaims it a self-evident truth that we are endowed with certain "unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." We may be endowed with these rights, and they may be unalienable, but to secure them, as John Kennedy put it in his Inaugural Address in a slightly different context, "here on Earth God's work must truly be our own."

The Founders not only inspired us with their words, but through their labors in Philadelphia in the summer of 1787 they bequeathed a government designed to give us the best chance to enjoy the liberty of which the Declaration spoke. The principal means to the end, of course, was a constitutional framework based on enumerated and separated powers. When Franklin was asked what the Framers had wrought, he responded "a Republic, if you can keep it."

So far, we have. But America is a continual work in progress. Vigilance is required to preserve the liberty to which the 1776 patriots pledged their lives and sacred honor.

At the Free State Foundation our mission statement proclaims our commitment to free market, limited government, and rule of law principles. In my view, these principles are predicates to securing the rights the Declaration proclaims. Certainly, the principles are put to the test today as politicians seek to expand government power in the name of addressing economic problems at home and national security threats abroad. Many politicians and governments officials with natural proclivities for aggrandizing government power see opportunities to achieve their grand designs in these challenging times. President Obama's Chief of Staff put it bluntly: "You never want a serious crisis to go to waste. And what I mean by that is an opportunity to do things you think you could not do before."

So Bill Clinton misspoke when he proclaimed "the era of big government is over." In reality, there is always an ongoing political struggle over the proper size and shape of government and extent of government control. While there is no mathematical formula to be applied, the realm of individual liberty necessarily shrinks as government's realm expands. This does not mean a particular exercise of government power is improper or ill-advised. It just means we should be aware of the relationship between the exercise of such power and liberty.

A significant part of our work at the Free State Foundation is centered on the project of promoting sound, free market-oriented communications laws and policies. Although I am mindful there are other policy elements, in the spirit of Independence Day, I want to focus here on aspects of communications policy relevant to the liberty interests protected by the free speech and property rights secured in the First and Fifth Amendments. These rights are crucial to maintaining the Declaration's promise.

Today there are voices, including some in the Obama Administration and Congress, calling for more government intervention and control of the media. They suggest that more government control is necessary to ensure more "balanced" viewpoints and more "fairness" in what's aired, or to ensure "better," or more "educational," or more "cultural," or less "violent" programming, or, well, to ensure programming that is just more suitable for the citizenry in one way or another. And now they also want the government to mandate and enforce "neutrality" on the Internet and to prevent "discrimination" by Internet service providers.

All this sounds well and good, even appealing, to those who have faith in government officials to determine that the right balance of viewpoints is struck, to know better programming when they see it, and to discern discrimination when it is alleged. Media regulatory regimes with names such as the Fairness Doctrine, Net Neutrality, and Open Access are devised to exercise the desired control. For many, these regimes have a seductiveness about them that makes it easier to excuse the amount of control placed in the government's hands to dictate the content of the speech of private persons.

Granted, many government officials may be perfectly well-intentioned in their desire to gain more power over the media and the Internet in order to implement their version of the "public interest." But surely there are those who actively seek greater government control as a means of cementing and protecting their own political power or the power of their party.

Now, I understand, of course, the seduction is always – repeat, always -- couched in terms of the government's need to ensure that the private person or operator, whether a broadcast station, cable operator, Internet services provider, or the like, does not itself suppress certain speech, or does not present unbalanced or unfair programming. The government's rationale is always put in terms of promoting fairness, neutrality, or openness by the private media owner. Nevertheless, the seduction is exactly that – an excuse for the exercise of government control over private speech.

No doubt it is true that those who operate private media may present programming that is unbalanced, unfair, or discriminatory. But the Founders knew the far greater danger to liberty lies with government control of the media, not private censorship. Hence the First Amendment. History is full of countless examples of governments using their control to suppress the freedom of their citizens. Unfortunately, there are many examples to cite today – Russia, Cuba, Venezuela. And, of course, at the moment we only need look to Iran. It is silly – and na├»ve – to ignore the fact that it is not the private media in these countries suppressing speech, degrading and impairing Internet transmissions, screening web sites. It is the government.

And note that derogation of property rights and free speech rights usually goes hand-in-hand. If the government can seize your printing press or deny your authorization to operate, or confiscate the profits from your media operation, your right to free speech becomes much less meaningful, or non-existent. So, although the Fifth Amendment's protection of property rights is often minimized in the context of communications policy, it shouldn't be.

None of the above is intended to suggest that the United States resembles Russia, Cuba, Venezuela, or Iran, in its media policy. To the contrary. We have a constitutional tradition and culture that is, on the whole, generally free speech and property-rights protective. And remarkable technological advances have facilitated the development of a competitive marketplace environment in which the newer "technologies of freedom," to borrow from Ithiel de Sola Pool, render attempts at government control more difficult -- and claimed justifications less convincing. See Twitter, YouTube, Facebook, cell phones, broadband, satellite dishes, and the like.

On this Independence Day, I do intend to suggest, however, that at a time when much of our communications policy is under review, and many are urging the need for more regulation and government control, we would do well to appreciate the extent to which our liberty interests are related to the preservation of free speech and property rights.

Who better to turn to in closing than Thomas Jefferson himself, who later in life declared: "The flames kindled on the 4 of July 1776, have spread over too much of the globe to be extinguished by the feeble engines of despotism; on the contrary, they will consume these engines and all who work them." I suspect that Jefferson knew full well he was – once again -- stating an aspiration rather than a fact. The engines of despotism are not feeble; nor have they been extinguished.

But the Fourth of July is a fine time to reaffirm the aspirations for liberty rooted in the Declaration of Independence and our Constitution – and to affirm that a communications policy grounded in our constitutional tradition is the best way to protect and further those aspirations.