Introduction
The Year of the Censor



The First Amendment seems increasingly irrelevant to growing numbers of legislators and regulators. As provocative as it may sound, this is the only conclusion one can draw after careful study of government actions affecting media speakers in 1999. We have noticed this trend for a number of years now, but it appeared firmly and regrettably entrenched as the century drew to a close. No longer is freedom of speech a bedrock principle to be defended against all onslaughts. Rather, the First Amendment has become a procedural hurdle to be overcome in pursuit of other social goals.

There was a time when legislators who stood up for free speech and free press were considered defenders of the Republic. Today the number of such defenders has dwindled. They have been replaced by a growing corps of policymakers who are considered clever if they can craft a bill or regulation that achieves its social goal while avoiding a First Amendment challenge. Moreover, speakers who claim First Amendment privilege are often characterized derisively as ³hiding behind² the First Amendment, merely using it as a self-serving tool to achieve some less-than-noble purpose.

Censorship and Media Speakers

In 1999 we saw a host of actions by legislators and regulators aimed at censoring speech, particularly in the online environment. The Internet remained the frontier not only of information technology but of speech restrictions and First Amendment jurisprudence. Legislatures in Michigan and Virginia passed laws restricting Internet content available to minors. Filtering bills were passed in three states and introduced in 16 others, and several bills were introduced in Congress as well. Federal lawmakers also considered a number of anti-³spam² bills aimed at unsolicited commercial e-mail, while four states went ahead and passed such measures. Congress also passed a law censoring EPA information about potential hazards at chemical facilities. The Federal Election Commission opened an inquiry into online campaign activity, and the FBI coerced an ISP into removing a Web site about a simulated race riot in Times Square.

In the realm of traditional media, the FCC proposed rules requiring broadcasters in major markets to provide ³video descriptions² of programming, and undertook an inquiry into additional public interest obligations for digital broadcasters. The Federal Trade Commission began a study of the entertainment industry¹s advertising to children. Congress, meanwhile, considered several bills that would censor media content deemed too violent. At the local level, a host of cities entertained measures to restrict outdoor advertising, while police in Michigan and New York appropriated journalists¹ photographs and used them without permission in public campaigns to help identify suspects.

The Roots of Decline

How have we come to this? Most likely it is through a convergence of factors, seemingly independent but in reality intertwined, that include a change in political philosophy, the widespread adoption of new technology, the bureaucratic mindset, and an ambivalent public.

First, policymakers have moved increasingly toward balancing and away from traditional First Amendment principles. While it is true that the First Amendment has never been an ³absolute² in practice, the concept has served as an ideal, as something to strive for. Balancing, on the other hand, treats freedom of speech as just another social goal to be balanced against other goals such as tolerance, the well being of children, public safety, and public health. As Rod Smolla points out, however, ³the use of the balancing approach tends to result in relatively low protection for speech² because speech becomes devalued in the process.1

Second, new technologies have created new opportunities for regulatory mischief. The development of a new technology disrupts the status quo by creating a regulatory void ‹ and the new unregulated medium cries out (at least to regulators) for some type of government intervention. Should radio licensees be treated as private content providers or forced to operate as common carriers? How can cable television be regulated like broadcast TV even though it doesn¹t use ³scarce² spectrum? These debates from earlier eras seem to pale in comparison with present efforts to regulate various aspects of the Internet. Junk e-mail (³spam²), indecency, the sale of particular products, advertising content, means of public access (filtered or unfiltered), encryption, consumer privacy ‹ even Web surfing by public employees ‹ have all been the subject of proposed or actual government action.

These would be perfectly understandable (if largely misguided) attempts to fill the regulatory void were it not for the fact that the Supreme Court has already established the definitive regulatory paradigm for the Internet. The Court¹s 1997 ruling in Reno v. ACLU, 521 U.S. 821 (1997), made it clear that online speech was to be accorded the same full First Amendment protections as print media. But old regulatory ways die hard and so the message has been slow to sink in, particularly among state and local policymakers. Congress has been equally unwilling to accept the new paradigm. After the Supreme Court overturned key provisions of the Communications Decency Act in Reno v. ACLU, lawmakers regrouped and passed another measure, the Child Online Protection Act ‹ which also has been put on hold by a lower court and is now on appeal.

Third, policymakers are able to get away with this behavior because the American public is amazingly tolerant of incursions on First Amendment rights. The public does not hold government officials to any discernible First Amendment standard, and in fact tends to reward lawmakers (according to polling data and approval ratings) for ³doing something² about perceived social problems, even at the expense of free speech. This reflects a growing and disconcerting ambivalence toward the First Amendment.

As Paul K. McMasters notes in a 1999 report by the First Amendment Center, ³[Americans] are constantly reevaluating their commitment to First Amendment rights and values and rearranging their priorities, asking themselves whether life would be more civil, more orderly, less threatening if the excesses of expression were somehow subdued.²2 Indeed, that survey found that nearly one-third of respondents believe the First Amendment goes too far in the rights it guarantees, and more than half believe the press has too much freedom. Against this bleak backdrop, it is no wonder that policymakers feel free to trample the First Amendment rights of media speakers.

The First Amendment and the Courts

If there is any First Amendment respite, odds are it will be found in the courts. In 1999, for example, federal courts enjoined or dismissed three state laws restricting Internet content and issued an injunction barring enforcement of the Child Online Protection Act. The Supreme Court upheld First Amendment protection for casino gambling ads on radio and television, while lower courts ruled that the Food and Drug Administration¹s regulatory actions were indeed subject to First Amendment scrutiny. Other federal courts struck down state laws in Kentucky and Rhode Island that restricted the release of public records.

Even in the courts, however, First Amendment protection was not a sure thing. Results were mixed in cases involving encryption and the so-called ³dirty pixels² law, reflecting the evolutionary nature of First Amendment jurisprudence in the online world. A Sixth Circuit decision weakened press rights for college journalists. And the Supreme Court issued two surprising rulings: one that upheld restrictions on the release of public court records, and another that found unconstitutional (on privacy grounds) the common newsgathering practice of ³media ride-alongs² with police. Despite an imperfect record, however, the courts remained the best hope for preserving First Amendment freedoms ‹ and provided a desperately needed check on the actions of lawmakers and regulators.

The Government¹s Performance

This edition marks the fourth year in which The Media Institute¹s First Amendment Advisory Council has graded the government¹s performance in protecting ‹ or conversely, threatening ‹ the First Amendment rights of media speakers. Members of the Council examined government actions in 43 separate issue areas grouped into four major categories: online issues; broadcasting and cable television; commercial speech; and libel law / tort actions / media restraints. Each issue area is discussed in a separate chapter of this book.

We again looked at four units of government: (1) the federal Executive Branch, comprising the Administration, federal agencies like the FDA, and regulatory commissions like the FCC and FTC; (2) the Legislative Branch, or U.S. Congress; (3) the Judicial Branch, consisting of federal district courts, appellate courts, and the U.S. Supreme Court; and (4) State and Local, which includes state courts, legislatures, regulatory agencies, and university systems, city councils, and local school boards. Some issues involved only one unit of government, such as the FCC; other issues could involve two, three, or even all four units.

Members of the Council assigned numerical grades from 50 to 100 to the relevant government units in each issue area. The grades were then tabulated, averaged, and converted to letter grades as follows:

A (90-100) = Superior performance in advancing or protecting First Amendment rights
B (80-89) = Above-average performance in advancing or protecting First Amendment rights
C (70-79) = Average performance; neutral impact on First Amendment
D (60-69) = Below-average performance; harmful to First Amendment
F (50-59) = Abysmal performance; actively hostile to First Amendment.