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Are We Losing Free Speech Protections?

A commenter on the NBC must stop running Fred Thompson Law & Order thread writes,

And they must also cease broadcasting any movies where Fred was an actor, such as The Hunt For Red October where he was a carrier admiral.

Because we don't have freedom of speech in America any more.

The first paragraph is right, but the second one misses the boat. Remember that radio and television broadcasting was heavily regulated in the U.S. -- considerably more heavily than it is today -- nearly from its birth. The "equal opportunities" rule is quite old. Its exceptions for news are actually a Congressional liberalization of the rule following an FCC decision in the late 1950s that applied the rule even to certain news coverage of candidates. The Fairness Doctrine, in various of its guises, was around for decades until it was repealed by the FCC in the late 1980s.

The underlying ideology behind all these restrictions, which is chiefly that the communications spectrum is scarce public property that is held more or less as a public trust by the licensees, and that the licensees must therefore be subjected to various restrictions and access mandates -- even when those mandates deter the licensees from carrying certain speech -- has thus been around as long as broadcasting has been. In some measure, recent decades have seen something of a retreat from the high-water mark of such restrictions.

Nor can one say that somehow free speech protection was pure until the 1920s or 1930s in the non-broadcasting media, and the broadcasting restrictions were a retrenchment from traditional protection. Before the 1920s and 1930s, courts upheld various restrictions on advocacy of illegal conduct, broad libel rules that had the effect of deterring not just falsehood but opinion and true statements, obscenity laws that went far beyond hard-core porn, restrictions (often enforced by judges using criminal contempt power) on coverage of trials and criticism of judges, and a wide range of other restrictions. And movies essentially lacked any First Amendment protection from the 1910s to the 1950s.

So one can certainly argue against restrictions on broadcasters; I sympathize with these arguments, and there's some reason to think that the Court would, too, if such a case came before it. But there's no justification for casting this as some sort of recent loss of traditionally recognized free speech protections. Where it comes to broadcasting, the general trend has been towards more protection of broadcaster rights (especially with the abolition of the Fairness Doctrine, though with a bit of recent retrenchment on vulgarity and nudity), not less.

kdonovan:
To some extent I think EV misses the point of many critics of creeping censorship (at least on the center-right); their focus is on restrictions on "core" political speech and electioneering and less on speech focused on other issues.
7.19.2007 9:14pm
MatthewM (mail):
This subject obviously would take a book to explore, but I think Prof. Volokh overstates his case. Broadcasting was not regulated federally (or really by the states) "at its inception"; the early radio period in the 1920s was almost completely unregulated, with spectrum allocation and interference issues being resolved in the state courts on the basis of traditional property law principles. It was only with the inception of the New Deal that the current federal broadcasting regime was instituted; in essence, the feds instituted a massive "taking" of what until then were private airwaves, with no compensation whatsoever. Remember this when anyone says that the airwaves are owned by the "public."

In addition, the context of the period is missing here, as it is with many discussions of freedom of speech issues in even earlier periods (such as the 19th century.) Yes, there is a paucity of court decisions or administrative actions by the FCC prior to the 1950s (or not really until the 1980s) that were protective of free speech. But the context that is missing is how much enforcement activity against controversial speakers on the airwaves existed before that time. I'm not an expert, but I'm guessing not much. Remember Father Coughlin? I doubt any 30s-40s version of the Fairness Doctrine was used to "balance" his speech. In short, the government's actual use of its theoretical power to impede speech in that period was less intrusive, simply because the federal government was less intrusive and powerful. As its power increased, and the number of government employees rose, more impingements happened, leading to a (fortunate) backlash from free speech protectors who needed to commence court action and lobby the FCC to protect a modicum of liberty over the broadcast spectrum. So it's not fair to say, I think, that broadcasting was a wasteland of censorship prior to the 1980s; we face a far greater threat now, with a strong federal government able to actually enforce an anti-free speech agenda, should the party of censorship ever gain the upper hand in Congress, the Courts, and the administrative agencies.
7.19.2007 9:19pm
tarheel:
Not to speak for EV, but I think his point is that if anything, in terms of broadcast at least, the creep has been the other way, towards freer speech on the airwaves. Just the abolition of the fairness doctrine alone is a huge win for political speech.
7.19.2007 9:21pm
Nikki:
At the risk of dragging the thread off-topic, the Comics Code Authority did quite a lot to regulate the content of comic books until rather recently.
7.19.2007 9:40pm
Laura S.:

The underlying ideology behind all these restrictions, which is chiefly that the communications spectrum is scarce public property


Except that we now know that this understanding is technically flawed or rather that the scarcity is grossly exaggerated by policy.

In some sense, the amount of information that can be conveyed is limited. Its known as the Shannon limit. That is, for a given width of spectrum and power, the information that can be conveyed is constrained. But here's the kicker, we're nowhere near the shannon limit--except in particular situations such as deep-space communications wherein we are very power-limited.

Second, resources are consumed only on a directional basis. Thus, if know with precision the location of the transmitter, many many sources can simultaneously use the same frequency-space at the shannon limit.

Third, most allocation is wasted due to inactivity. Large sections of spectrum are used only occasional. This problem is the same thing that makes the Internet (packet switched) more efficient than the telephone network (circuit switched).
7.19.2007 9:47pm
rfg:
MatthewM:

Please recall that the reason for Federal regulation of all broadcast radio (not just the commercial part) was simply that state-by-state regulation simply did not work for technical (in the sense that they are based on physical law) reasons- a broadcast does not stop at the state line simply because you pass a law saying it must. This state of affairs made commercial use difficult at best, which is why the development of nationwide, enforceable standards and rules was welcomed by most at the time, especially those who saw an opportunity to make money.

What you refer to as a "massive "taking" of what until then were private airwaves, with no compensation whatsoever" allowed and encouraged the development of the commercial radio and TV networks which have made billions of dollars for their owners. I will argue that this more than compensated them for their trouble.

Not all regulation is bad.
7.19.2007 9:53pm
tarheel:

What you refer to as a "massive "taking" of what until then were private airwaves, with no compensation whatsoever" allowed and encouraged the development of the commercial radio and TV networks which have made billions of dollars for their owners.

I seem to recall learning that the radio people basically begged the federal government to do something because they could not operate otherwise.
7.19.2007 9:55pm
rfg:
LauraS:

You ae correct- generally we are nowhere near the Shannon limit. The problem is that the technology neded to get near the limit is relatively new (in society's terms- not in Moore's Law terms) and not widely available.

And yes, part of the reasons it's not widely available are regulatory in nature, but that's not thewhole story either.
7.19.2007 9:58pm
Try the veal, it's the finest in New York.:
The first paragraph is right, but the second one misses the boat.

Well done.
7.19.2007 10:13pm
Smokey:
Why is the press America's showcase for freedom?
Because just about everything else has been regulated.

~ C. Hightower


Lucky Cullen. He lived in a simpler era.


Folks, Congress has no business regulating communication.
7.19.2007 10:28pm
Sasha Volokh (mail) (www):
MatthewM: I believe major regulation of broadcast, including broadcast content, came with the Radio Act of 1927 -- during the Coolidge Administration.

One of the Federal Radio Commission's early enforcement actions was in 1930, against a surgeon who owned a Kansas radio station on which he advertised his "sexual rejuvenation" techniques that involved implanting slivers of goat testes into men's testicles. (This case is described on the Wikipedia page I linked to.) The FRC denied his request for renewal.

The FCC was created by the Communications Act of 1934 -- admittedly a New Deal creation. But the FCC took over the role of the old FRC, and its statutory mandate (Title III of the Communications Act) was similar to the Radio Act of 1927.
7.19.2007 10:43pm
Stating the Obvious:
As a non-lawyer, the this question comes to mind: From the above, it follows that if Fred Thompson runs, it will be very costly to third-parties, namely those companies that sell Law and Order re-runs. To avoid these sort of costs in future, are Hollywood producers able to write into actors' contracts some penalty clause or indemnification or injunctive relief should the actor later choose to run for office? (If none of this is possible, the economic consequence is that salaries for those actors thought to have political interests will decrease)
7.19.2007 10:46pm
Just Dropping By (mail):
At the risk of dragging the thread off-topic, the Comics Code Authority did quite a lot to regulate the content of comic books until rather recently.

Except, IIRC, the CCA is a private self-regulatory body. It was admittedly established in response to pressure from Congress, but it is no more a form of government censorship than the MPAA.
7.19.2007 11:04pm
PGofHSM (mail) (www):
Folks, Congress has no business regulating communication.

But the states do? My understanding is that the government auctions licenses to the radio airwaves because otherwise people would set up broadcasting and run all over each other -- if I'm broadcasting on 91.2 and you also want to broadcast on 91.2, without someone to arbitrate the dispute by giving it to the highest bidder, neither of our transmissions would come through clearly for all relevant listeners.

To some extent I think EV misses the point of many critics of creeping censorship (at least on the center-right); their focus is on restrictions on "core" political speech and electioneering and less on speech focused on other issues.

I'm still trying to figure out when the golden age of political free speech was. It surely couldn't have been the period from about WWI to Vietnam when leftists, particularly communists and those who advocated against conscription and the war de jour, had laws ranging from the Espionage Act to the Smith Act used against them merely for speaking and assembling. Or are center-right critics of creeping censorship only worried about creeping censorship of center-right speech?
7.19.2007 11:05pm
ras (mail):
A q still hangs from the prev thread; can anyone answer it?

The law reads: If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station ...

Stop there: L&O is not a "person who is a legally qualified candidate for any public office." Fred Thompson is.

So why pull the episodes? Under what legal principle is L&O considered to be a candidate? To my knowledge, Mr. Thompson does not direct their business activities in this regard; they act independently of him, he being essentially a hireling who once worked for them.

Since the licensees are not actually permitting Mr. Thompson (nor a proxy controlled by him) to use their airwaves, where's the justification for pulling the episodes? Is it just fear of the FCC as a bully?

Sorry if I'm being a little thick on the legalities here (IANAL) but Thompson isn't L&O and L&O isn't Thompson, no more than UCLA is Eugene Volokh is UCLA. Correct? Separate legal entities, right?
7.19.2007 11:29pm
TruePath (mail) (www):
rfg:

Well that and the fact that there is a massive entrenched interest in keeping radio spectrum scarce. After all if your a large media company who has huge amount of capital in radio spectrum you definitely don't want to see that spectrum devalued by orders of magnitude more efficient use. While government regulation of radio frequency was certainly necessary (tho not the content regulation) it also has the standard harms of creating a powerful interest in using that regulatory power to enforce the status quo.

I don't know whether to blame corporate influence or simple incompetence but there have been a fair number of economic studies showing that the design of FCC spectrum auctions is particularly poor (susceptible to signalling, unagreed coordination etc..)
7.19.2007 11:36pm
Eugene Volokh (www):
ras: The statutory text may be read in many different ways; but the earlier post described how courts and the FCC have actually interpreted it, which presumably is what NBC is going to rely on.
7.19.2007 11:59pm
Fub:
Eugene Volokh, July 19, 2007 at 8:03pm wrote:
[quoting Tom Holsinger from previous Conspiracy comments:]
Because we don't have freedom of speech in America any more.

The first paragraph is right, but the second one misses the boat.
Based on my reading of Tom's other comments for some months, I think his tone was ironic or mock serious. But he might set me straight on that.
7.20.2007 12:33am
MatthewM (mail):
rfg: Thomas Hazlett has written extensively about this issue. Turns out, when you look back at what actually happened, the technical issues regarding interstate interference weren't that debilitating. In other words, normal interstate regulation of the traditional type (i.e. interstate comity and respect for the property rights of out-of-state citizens) that used to govern commerce between the several states could have taken care of the problems. Federal regulation wasn't necessary. Remember, also, that the riches made by the broadcast networks don't justify regulation that has impaired competition from other sources.

Sasha: Yes, some limited federal regulation did emerge in the 1920s. Quantitatively and qualitatively it was far different from the regime that took control in the 1930s; most regulation regarding out and out censorship(to the extent it even existed) was still local until then. Not surprisingly, where the feds did come down hard was on anything sexual in nature; and the fact that pornography or communication that violated the sexual decorum of the era was often suppressed by the states or the feds is not debatable. What we're talking about here is whether core political speech in the broadcast arena was often suppressed under the political mores of the time. I assert that it wasn't. The problem with today's environment is that yes, we have good legal checks on state or government speech suppression (and I support these!), but that a huge swath of the public and the elite simply do not support with those safeguards. And if these people come to power, those checks on governmental power may fall by the wayside, and true suppression of a kind we haven't yet seen in this country could occur. This scares me, and I think that Prof. Volokh's attitude on this issue is a little too Panglossian for my taste. We need to be more vigilant, not less, and idealizing our current era and demonizing the past does not help.
7.20.2007 12:59am
Fub:
Laura S. wrote at 7.19.2007 8:47pm:
The underlying ideology behind all these restrictions, which is chiefly that the communications spectrum is scarce public property

Except that we now know that this understanding is technically flawed or rather that the scarcity is grossly exaggerated by policy.
Yes, and no.

If we accept the current allocations of AM, FM and TV bands, then the spectrum allocation policies within them to allow the particular modulation methods are pretty sensible. In some geographical areas (typically major metropolitan areas), the bands are pretty well packed wall-to-wall with (mostly) non-interfering signals. In others (less densely populated areas), some broadcast allocations are still available.

One could quibble, for example, that less than the current guard band between adjacent FM channels would be adequate nowadays with better adjacent channel rejection in modern tuners. But the way stations have been shoehorned into the present allocations in some areas would still cause significant interference between stations at their fringes if the center frequency allocations were spaced more closely.

One current issue is that the new experimental Digital Audio Broadcast method (IBOC) now being tested on the FM bands is playing hob with interference between various FM stations' fringe signals. This is due in part to the fact that IBOC had to also be backward compatible with ordinary FM detection.

Changing policy for broadcast modulation methods, and allocating new broadcast bands, is much more a matter of economics than technology. For example, not much more than 50 years ago, new noncommercial KPFA, Berkeley, CA, was selling very cheap FM receivers with listener subscriptions just to create an available audience.

My point is that if regulations change modulation methods within currently allocated broadcast bands, lots of people will have to buy new receivers. The installed base of AM, FM and TV receivers is huge. Precipitously reallocating bands or changing broadcast modulation methods would create considerable static from audiences more than from broadcasters.

Alternatively, allocating new broadcast bands, and new modulation methods for them might be done much more smoothly. But the question for that would be where (or from which current licensees in non-broadcast services) the new band allocations would be taken.

Most spectrum up to about a Ghz is fairly well populated already. New spectrum allocations for broadcast in that range would require taking the spectrum away from some current services.

I'm not opposed to rethinking allocations and modulation methods for broadcast services. I'm just saying it isn't as easy as it might appear. That's because technology isn't the only issue.
7.20.2007 1:27am
Bruce Hayden (mail) (www):
Since scarcity is the justification for this, does this mean that those L&O episodes can run on cable? I would think that this would be a much harder sell for a medium with 100+ channels.

Actually, I would miss the Red October movie more than L&O. Though I think Harrison Ford makes the best Jack Ryan, this is still my favorite Clancey movie (and probably his best book too, as it apparently got the most research).
7.20.2007 2:08am
TruthInAdvertising:
"Since scarcity is the justification for this, does this mean that those L&O episodes can run on cable? "

I don't think that scarcity is the basis for the Fairness Doctrine. Instead, its the justification for the entire regulatory scheme. You raise a good point about cable but the FCC apparently holds sway here:

http://www.fcc.gov/cgb/broadcast.html

On an earlier post:

"in essence, the feds instituted a massive "taking" of what until then were private airwaves, with no compensation whatsoever"

I'm curious as to how one would acquire an ownership interest in some portion of the airwaves? How would you prove it? Whoever had the most powerful trasmitter would rule the spectrum?
7.20.2007 2:37am
David Schwartz (mail):
"I'm curious as to how one would acquire an ownership interest in some portion of the airwaves? How would you prove it? Whoever had the most powerful trasmitter would rule the spectrum?"

How is this any different from physical property? Wouldn't we have precisely the same problem, for example, if we suddenly decided to turn Central Park over to private ownership?

Presumably we once had the same problem with land, with whoever was strongest taking whatever land they wanted. But then we decided to register titles to land and to use public resources to protect private titles.

I think radio spectrum is precisely analogous.

In fact, one could imagine a country where all land is owned by the government and people just "license" portions of the land. They pay taxes on it and have to submit to government regulation of what they do on that land.

Oh, wait, that's exactly what we have!
7.20.2007 5:27am
David Schwartz (mail):
They can run episodes with Fred Thompson. Since they are not doing this specifically because Fred Thompson is in them and have not refused to run episodes of other shows with other candidates in them, they are already providing the other candidates the same opportunity.

This policy:
"We will show no show that contains a candidate."
and this policy:
"We will show what we would normally show whether it contains a candidate or not."
both comply with the terms. They provide precisely the same opportunity to all candidates.
7.20.2007 5:29am
David M. Nieporent (www):
Look, David S: no matter how many times you repeat it in each of these threads, that's simply not how the courts interpret the law.

As a non-lawyer, the this question comes to mind: From the above, it follows that if Fred Thompson runs, it will be very costly to third-parties, namely those companies that sell Law and Order re-runs.
Actually, it won't be, because the companies that sell them -- they've actually already been sold, so it's moot anyway -- sell them to cable, not broadcast. It's only NBC that's affected, and they only get limited re-run rights anyway. (Typically, the network can show the episode no more than three times, including the first-run showing.)


But the states do? My understanding is that the government auctions licenses to the radio airwaves because otherwise people would set up broadcasting and run all over each other -- if I'm broadcasting on 91.2 and you also want to broadcast on 91.2, without someone to arbitrate the dispute by giving it to the highest bidder, neither of our transmissions would come through clearly for all relevant listeners.
But there's no reason that this requires a regulatory agency and "licenses". The government didn't "license" your front lawn to you and we don't have regulatory agencies to prevent me from building a house there. Sell it off, and then enforce trespass or nuisance laws.
7.20.2007 8:43am
Thomas_Holsinger:
Fub,

Correct - I was being ironic. McCain-Feingold has lots of consequences and this one is more a comic example of the law of unintended consequences than something serious. But it is an effective example of what the First Amendment was supposed to prevent.
7.20.2007 2:51pm
TruthInAdvertising:
"McCain-Feingold has lots of consequences and this one is more a comic example of the law of unintended consequences than something serious"

Not sure if you're just making an analogy here but the regulations in question here don't have anything to do with McCain-Feingold.
7.20.2007 6:54pm