FCC Commissioner Harold Furchtgott-Roth summed it up best. Writing in March 1998, he noted that the First Amendment "is by its terms a limitation on - not an expansion of - governmental power." Unfortunately in 1998, however, this fundamental concept of limited government still was lost on many members of Congress, Executive Branch agencies, and local governments who continued to propose (and frequently enact) restrictions on the First Amendment rights of media speakers. The courts provided a critical check on some of these excesses, in some key cases continuing the trend started by the Supreme Court's landmark decision of 1997 (ACLU v. Reno) extending full constitutional protection to cyberspeech.

   Thus began the challenge for The Media Institute's First Amendment Advisory Council: to survey the First Amendment landscape, identify and describe key government actions in 1998 involving the media, and offer enough analysis to give the reader a sense of perspective, a frame of reference. Council Chairman Robert Corn-Revere and his troops did their job well, arriving at 33 topics in the four broad categories that have come to define the scope of this annual project - on-line issues; broadcasting and cable; commercial speech; and libel / punitive damages / tort actions. As always, it was a mixed bag of the good versus the not-so-good versus the "how could they do that!" The grades assigned by the Council tell that part of the story.

Policymakers, Media and the First Amendment

   On-Line Issues. Despite the Supreme Court's decision last year repudiating the Communications Decency Act (CDA), Congress couldn't resist the urge to try again with the Child Online Protection Act, the so-called "CDA II." Thus the free-speech battle continued to rage in cyberspace. Congress and the Administration wrestled with encryption export limits and privacy issues, the FTC tackled Internet advertising, and a number of states passed laws restricting unsolicited commercial e-mail. The judiciary provided the needed counterbalance as federal courts variously enjoined enforcement of CDA II; found the "dirty pixels" law unconstitutional; overturned state Internet restrictions in Virginia and New Mexico; and struck down the Internet filtering policy of a Virginia public library system. It became increasingly clear that attempts to regulate this new medium were accelerating, even though the Supreme Court had, just a year earlier, accorded it constitutional protection on a par with newspapers and other forms of fully protected speech.

   Broadcasting and Cable Television. No matter how much things change they remain the same, at least at the Federal Communications Commission. Newly reconstituted for 1998 with a clear 3-to-2 Democratic majority, the Commission showed that it is still possible to regulate broadcasting as it was done in the 1960s when scarcity reigned and the First Amendment carried little weight in FCC corridors. The Commission rejected an opportunity to scrap the personal attack and political editorializing rules; adopted new public interest obligations for DBS providers; approved the TV industry's "voluntary" program ratings system; and began examining ways in which it might extend must-carry rules to digital television broadcasts. When it undertook a biennial review intended to relax ownership regulations, the FCC ended up on the verge of considering even tighter restrictions - until reprimanded by members of Congress. Commissioners Michael Powell and Harold Furchtgott-Roth proved to be strong and outspoken advocates of the First Amendment but all too often found themselves speaking as minority voices in a pro-regulatory regime.

   Commercial Speech. Developments affecting advertising rights tended to parallel those for on-line issues - aggressive and often unconstitutional actions by legislators and regulators tempered (for the most part) by the courts. Tobacco advertising was the big story in 1998, culminating with an agreement between tobacco manufacturers and state attorneys general that would include limitations on tobacco ads. Meanwhile, dozens of cities pursued tobacco and alcohol billboard restrictions even as key court challenges in New York and Chicago were decided in favor of advertisers. In cases involving a variety of other products and services, federal courts found several ad restrictions lacking under the Central Hudson test, which has enjoyed renewed vigor since 44 Liquormart in 1996. As 1998 drew to a close, a decision by the U.S. Court of Appeals for the Fifth Circuit upholding a broadcast ban on casino gambling ads created a split with the Ninth Circuit, thus setting the stage for a major commercial speech decision by the U.S. Supreme Court in 1999.

   Libel Law / Punitive Damages / Tort Actions. The breadth of this category makes trends harder to discern and connections between events difficult to make. In 1998, however, we saw a number of actions that pushed the boundaries of law, raised First Amendment concerns, or otherwise surprised observers. California, for example, enacted the first "paparazzi law" aimed at protecting celebrities from aggressive photographers. Novel "veggie libel laws" prohibiting disparaging speech about food products remained on the books in 13 states while courts had yet to rule on their constitutionality. A state court in Louisiana allowed victims of a shooting spree to sue a group of Hollywood film producers for allegedly inspiring the incident, ignoring a long line of decisions that insulate the entertainment industry from "copycat" actions. Meanwhile, a case in North Carolina involving the publication of sealed court documents raised questions about the power of a federal district court to hold a third party in contempt.

Grading the Government's Perfomance

   Our purpose in publishing this annual report is not merely to chronicle the previous year's events. We seek, perhaps more importantly, to assess how the various branches of government performed in upholding the First Amendment and thus discharging an important obligation to the Constitution. This assessment is, in its most literal sense, a report card on past performance. In a larger context, however, we hope it is also seen as a reminder that government officials have a duty to the public they serve to uphold the Constitution - and as an encouragement, quite frankly, to do better.

   Based on our experience of the past two years, we made some improvements in this year's grading system and the manner in which the grades are presented. Two features are highly visible: (1) The grades for each issue are published and can be found at the top right hand corner of each chapter's title page; we hope the graphic icons make the grades easy to understand at a glance. (2) We added the category "State and Local" to the three federal categories of Executive, Legislative, and Judicial.

   The basic grading process was enhanced as well. Members of The Media Institute's First Amendment Advisory Council reviewed every chapter and assigned a numerical grade from 50 to 100 to each branch of government as applicable. (In previous years the members had assigned letter grades.) The Executive Branch includes the White House, federal agencies, and regulatory commissions like the FCC; the Legislative Branch reflects the U.S. Congress; and the Judicial Branch includes federal district and appellate courts and the U.S. Supreme Court. State and Local includes state legislatures, state courts, city councils, county library boards, etc. Each issue received between one and four separate grades, depending on the number of government entities involved.

   We tabulated the grades to arrive at an average numerical grade for each issue and then converted the numerical grades to letter grades based on the following criteria:

   The federal judiciary once again outperformed every other branch of government, scoring the only aggregate A in the report and rating nothing lower than a C. Many favorable court decisions involved on-line issues such as the "dirty pixels" law, CDA II, and state Internet restrictions, in addition to favorable rulings on broadcast, cable, and commercial speech topics. State and local officials fared worst, receiving the only F and nothing higher than a D. By averaging these grades we arrived at an overall grade for each branch of government:

   As we look ahead, however, it is already obvious that Congress, the FCC, other federal agencies, and state and local bodies will have a host of opportunities to do better in 1999. Action on many issues will be carried over from last year or started anew, and we await a number of important court decisions. At bottom, however, we are left with two questions: How long will it take before policymakers recognize that many of their actions routinely trample on basic First Amendment principles of free speech and press? And how long until they care?