Will the ACLU's "Decency" Lawsuit
Harm the First Amendment?
by Steven Hill

While the decency provisions of the Telecommunications Act of 1996 were grabbing February's front page headlines, more ominous news was quietly tucked away inside the business sections of local newspapers.
          In February federal regulators cleared the way for Disney's takeover of ABC, creating the world's largest media company. Also in February the federal government continued its auction of the public airwaves to those who can afford it, with total bids approaching $7 billion. And cable industry leader TCI, who is positioned to benefit greatly from the Telecommunications Act, announced its intention to plow more than the $40 million it has already spent on new cable ventures in the classroom, receiving the backing of leading educational organizations like the National Education Association and the American Federation of Teachers who are worried about a shrinking commitment to public education. In other words, while civil libertarians were litigating over a fear of government censorship, a much greater threat to the First Amendment -- that of increasing monopolization of mass media in private wealthy hands -- was slipping by with barely a peep of protest.
          The decency provisions of the Telecommunications Act are only one small part of this dreadful legislation. The rest of the bill deregulates the telecommunications industry and makes Disney-like takeovers and mergers even easier. It's a kind of "free trade" agreement for corporate media, and will inevitably result in more mergers, increasing centralization, and loss of jobs as merging corporations slim down. Already AT&T is in the midst of slashing 40,000 jobs, and Pac Bell 10,000 jobs, to prepare for new competition. The impending merger of Bell Atlantic and NYNEX is also expected to lead to a workforce reduction. Trends like these will be exacerbated by the Telecommunications Act of 1996.
          Given the egregious nature of the Telecommunications Act of 1996, why then has so much of the protest and litigation focused singularly on the decency standard, government censorship, and pornography on the Internet?
          Truth be told, the corporate media actually loves the anti-censorship arguments of civil libertarian groups like the American Civil Liberties Union. Anti-censorship arguments fit in perfectly with a corporate agenda. As the fight over NAFTA showed, corporations want deregulated environments. When the corporations are multinational media conglomerates, anti-censorship policies have the same effect as NAFTA. They become the opposite of anti-trust policies, creating a "free trade" environment sans government intervention where the wealthiest media companies can grab bigger and bigger chunks of the market.
          If the government isn't allowed to regulate corporate behavior -- media or otherwise -- who can? Certainly not consumers or the free market. Handcuffing the government in matters of speech is what allows corporations and wealthy individuals to buy more speech than everyone else. Anti-censorship policy turns the First Amendment into a race where those with the most money and resources win. Is it all that surprising that the corporate media gave the ACLU lawsuit lots of headlines?
          Granted, the intersection of First Amendment activism between civil libertarians and commercial interests derive from different concerns and agendas. But look at the net effect: in the name of the First Amendment, corporations and the ACLU have fought attempts at campaign finance reform. The ACLU was one of the plaintiffs that sued and defeated a 1974 Congressional law that would have capped campaign spending. That Supreme Court case, Buckley v. Valeo, effectively killed subsequent attempts at effective campaign finance reform that vex us to this day. More recently, the ACLU has sued the popular Initiative 41 in Missouri, which limited contributions in city-wide races to $100.
          Both corporations and the ACLU have litigated against restrictions on commercial speech and advertising. The ACLU has also sued "truth in advertising" laws that prohibit political campaigns from knowingly making false statements, calling the laws too vague and censorious of the free flow of political ideas.
          Effective speech today is no longer free. In fact, it's quite expensive, and very few can afford it. Those with the most money naturally end up with the most speech. The specter of law enforcement personnel shackling street corner pamphleteers is hardly the threat to free speech posed by a First Amendment captured by market forces. Certainly one of the goals of the First Amendment should be to enhance, in the words of 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 NBC, CBS 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 is a loud-mouth or two in the group completely dominating the discussion, it might be necessary to require 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? At the core of the public debate principle is a conviction that any wealthy institution or individual can be as much an enemy of free speech and the public discourse as the government. The free market itself is a structure of constraint, just as governmental censorship may be, tending to channel, guide and shape how that speech will be exercised. The government already acts as a referee in matters of civil rights, low-cost housing, and in some countries, national health care. It also acts as a referee in matters of education, where the free speech implications are enormous. Why not in matters of the corporate media and the First Amendment?
          A public debate principle makes a distinction between the "cheap" speech of individuals and small institutions and the "wealthy" speech of multinational corporations. Each of these should be guided by a different set of laws and policies. But the anti-censorship approach treats corporations like individuals. According to the anti-censorship rationale, as well as the conservative Rehnquist Court, the free speech of a single homeless mother is equal in the eyes of the law to the free speech of Disney/ABC, as long as they both begin the race at the same starting line. Such a simplistic and fundamentalist view of the First Amendment turns this great doctrine into a battle between David and Goliath, with civil libertarians siding with Goliath.
          These two First Amendment principles -- anti-censorship versus robust public debate -- increasingly stand in opposition to each other. They correspond to the heightened tension between those struggling for equality against those defending liberty. So civil libertarians and their well-meaning progressive allies sue one part of the telecommunications bill -- the decency provisions that they regard as censorship -- but are silent about the more damaging provisions -- the corporate monopolization of the public airways. Civil libertarians do not oppose the "NAFTAization" of free speech. In fact, their First Amendment jurisprudence has promoted it for years, since they have always thirsted more for liberty than equality.
          The telecommunications bill could have inspired a major public debate about the domination of the public airways by multinational media conglomerates and the differences between cheap speech and wealthy speech. Instead, most of the attention was diverted and distracted by corporate sleight-of-hand to the ACLU's side show. Knee-jerk anti-censorship policies have become nearly as conservative as the policies they are trying to thwart. Yet many liberals and progressives unthinkingly adopt the anti-censorship argument even though it aids corporations, has enervated campaign finance reform, and hurts the cause of social justice and democracy, indeed of the First Amendment itself.
          The decency standard of the Telecommunications Act should be opposed, but not because the government does not have a compelling interest at times in acting as referee in matters of speech. Rather, the entire Telecommunications Act ought to be opposed as an infringement on the public discourse and the First Amendment that is increasingly being dominated by multinational corporations and market forces. In an age when such corporations dominate the media, anti-censorship policies become the NAFTA of the industry. 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 watching you, and trying to gobble up all the public speech it can.

 Check out other articles by Steven Hill's at Where There Is No Vision.