Wednesday, February 3, 2010 - The Progress & Freedom Foundation Blog

A Chill Wind Blows

This is true liberty, when free-born men,
Having to advise the public, may speak free,
Which he who can and will, deserves high praise;
Who neither can nor will, may hold his peace;
What can be juster in a State than this?

Euripides, The Supplicants

For over two thousand years the principles underlying our First Amendment protections for free speech and free thought have been the hallmark of just and free societies. Indeed, the advance of civilization is one marked by progress on a path away from state control of speech and thought toward private autonomy in the area of ideas and their communication. It comes as no surprise that the most repressive regimes and movements included among their tenets the suppression of seditious or heretical thought, from the Inquisition of the late Middle-Ages to the most anti-democratic governments of the 20th Century.

By contrast, for over two hundred years, our Constitution has provided the most rigorous bulwark the world has ever known protecting the free dissemination of ideas. It certainly is not always a comfortable fit; the safeguards sometimes protect speech or speech-conduct that is repulsive to many. But there can be little doubt after more than two centuries of our Constitutional experiment that liberty and justice are served by more, not less, freedom of speech.

For that reason, the FCC's recently announced inquiry into "the future of media and information needs of communities in a digital age" should make the stomachs of civil libertarians everywhere queasy. Of course the Public Notice of the inquiry is dressed up in all of the usual public interest language. The Commission purports to be interested in protecting good journalism, promoting a diversity of information sources, and expanding the opportunities for a vibrant debate of public issues. We have no reason to doubt the sincerity of those representations, or of the FCC's claim that it will consider First Amendment concerns first and foremost as the inquiry proceeds.

The problem is that the very act of initiating such an inquiry will chill protected speech; government inquiries into what is and is not working in the area of news, information, and media is itself an affront to the First Amendment. And it is no answer that the Commission has embarked on this journey with beneficent motives, it has no power to derogate from the protections of the First Amendment in the name of what one group of bureaucrats may think are important government interests.

Can there be any doubt but that any category of speakers that are even indirectly regulated by the FCC will be mindful of this new inquiry and will curb the nature of their conduct and communications in light of it? What great potential for mischief the FCC has spawned merely by initiating this little inquiry! Regulation by "raised eyebrow" has become a well-established tool for a number of federal agencies, including the FCC, but with this inquiry the Commission has taken the concept to a level heretofore unknown - this inquiry is regulation by penetrating leer.

Oddly, there is an element of schizophrenia to the entire enterprise. The FCC for years has defended policies that without question have impaired the economic freedom of its licensees (and related others). Now, as those licensees struggle to survive in a rapidly expanding media environment, the FCC is using those struggles as a predicate and premise for its wide-ranging inquiry into the "future of media."

And one must ask, "what if the FCC concludes that the whole media culture is corrupt and failing"? What is it to do? Is it the appropriate role of government agencies to help structure a media market that works? Does the government really have any role in making sure "all Americans have access to vibrant, diverse sources of news and information that will enable them to enrich their lives, their communities and our democracy" (as the FCC so boldly declares in the opening paragraph of the inquiry)? When did that become a charge of the government in general and the FCC in particular? From whence did the FCC's power and authority to be the arbiter of whether or not the media and press are meeting the needs of our free society arise?

To posit the question is to reveal the answer - the FCC has no such power or authority, and never has it been charged with exercising any such. The inquiry is a based on an illusion. Unfortunately, merely by suggesting that it has the power to engage in this sweeping inquiry, the FCC has unconstitutionally snatched some level of control of the national debate from the hands of the people, where it belongs, and rested it in the hands of federal bureaucrats, where it most assuredly does not.

posted by W. Kenneth Ferree @ 3:27 PM | Mass Media , Media Regulation , The FCC