Friday, September 17, 2010

Constitution Day at the FCC

Today we celebrate Constitution Day. On September 17, 1787, thirty-nine delegates to the Constitutional Convention, after meeting in Philadelphia through a long hot summer, signed the new Constitution. Just 223 short years ago.

It is well to have the Constitution in mind every day, of course. But on Constitution Day it is especially appropriate. Here at the Free State Foundation, we have always considered education concerning a proper understanding of the Constitution an important part of our work on communications policy issues. Even more than with respect to most other federal agencies, the Federal Communications Commission's regulatory activities implicate constitutional concerns, such as proper regard for property rights, adherence to due process, and, especially, the protection of free speech.

Indeed, historically, there has been an inherent tension between FCC regulation of communications and the First Amendment rights of regulated entities. So, on this Constitution Day, I would like to call to your attention my latest article on the subject, "Time for the FCC to Respect the First Amendment," which appears in the new edition of the Heritage Foundation's The Insider magazine.

The article's title is a deliberate giveaway of my perspective that, all too often, the FCC's actions impinge directly on First Amendment rights, or at least chill their exercise. Here are a few excerpts from the article, which I hope many of you will read in full:

"With the transition from the analog to the digital age, and the proliferation of new media outlets, you might expect that the FCC would eliminate many of its outdated forms of regulation, including those that threaten free speech rights. You would be wrong. Indeed, in several respects, the FCC is acting, or proposing to act, in ways that would enhance its regulatory oversight of speech. The agency wants, for instance, to impose network neutrality restrictions on Internet providers – sort of like a digital must-carry mandate. Meanwhile, the agency's 'Future of Media' project appears ready to provide justification for more government control of private media and more government funding for public media. And don't forget the agency's maintenance of outmoded speech regulations such as cable must-carry rules."

"While President Obama's FCC Chairman Julius Genachowski and other net neutrality advocates claim the regulations would promote free speech values, in fact they turn the free speech guarantee of the First Amendment on its head. Government-enforced neutrality mandates likely will violate the Internet providers' First Amendment rights. Like newspapers, magazines, movie and CD producers, or the man speaking on a soapbox, Internet service providers possess First Amendment rights."

"In today's environment, we do not need, and should not want, government-supported or government-controlled media acting as a 'filter' or a 'megaphone,' or deciding what programming is in the 'public interest.' Such 'filtering' or 'megaphoning' necessarily involves the government in making decisions based on content. How else to decide what information should be filtered or amplified to meet some 'public interest' objective? This government involvement in content selection runs against the grain of our First Amendment values."

In all their actions, and in conformance with their constitutional oath of office, the FCC commissioners should square their decisions with the First Amendment's intent to protect the speech of private citizens from government interference. In today's digital environment, with the proliferation of media sources, this means the FCC needs to shed its ingrained analog-era mentality that has led to an understanding of its role as enforcing "fairness" or "balance," or achievement of ill-defined and questionable "public interest" objectives.

In a law review article, "Charting a New Constitutional Jurisprudence for the Digital Age," published in 2009, and cited shortly thereafter by Justice Clarence Thomas at page 5 in his concurring opinion in the Supreme Court's Fox Television case, I concluded:

"Perhaps it was predictable, maybe even likely, that the First Amendment’s protections would be limited substantially during the twentieth century’s Analog Age that tended towards a monopolistic or oligopolistic communications marketplace. But now, in the face of proliferating competitive alternatives attributable to profound marketplace and technological changes, it ought to be considered predictable and yes, even likely, for the

Court to establish a new First Amendment jurisprudence befitting the media abundance of the twenty-first century’s Digital Age."

I leave you with thoughts of the First Amendment on Constitution Day – and wish you a reflective one!