YALE LAW SCHOOL
1997 DEAN'S LECTURE SERIES
September 23, 1997
Thank you for inviting me. I'm absolutely delighted to be here. Yale is where I met my spouse, a future Supreme Court Justice, and a future President of the United States. As all you Yalies are doubtlessly thinking, anyone who married William Howard Taft had all three wrapped in one large package; but in my case these were three different people.
So Yale in short was good to me, in a contextual sense.
I'm here, however, to talk about the information highway instead of memory lane.
My message is this: I need your help. More accurately, the country needs your help.
We need you to figure out:
All of these goals are made achievable by the information age.
But before we get to the main topic of my talk, let me begin by asking myself and answering the top three questions most asked of the Chairman of the FCC:
The fact that I went to high school with Vice President is just a coincidence. The fact that I went to law school with the President and First Lady and previous Secretary of Labor and U .S Attorney for San Diego and Comptroller of Currency...these are all just coincidences.
The reason I got this job is that I have the same birthday as Alexander Graham Bell.
Actually I never listen to him. But it is a rule of electronic media that anyone criticized for anything in or by the media is deemed guilty. Fortunately it is another rule of media that in its world guilt correlates to rewards instead of punishment. This is a difference between law and media. There are increasingly no other differences.
Now, where to begin with a question like that? A TV journalist is like an eye doctor who corrects not the way you see others, but the way others see you. Imagine a doctor saying, as he or she comes at you with a scalpel, is there a right way or a wrong way to do this operation?
Now that I've cleared up what's on everyone's minds, let's watch TV.
Here follows a piece from a TV cartoon show called Animaniacs produced by Time-Warner. It is about, of all things, children's educational tv, which our new rules require from all broadcasters. [clip of WB's Animaniacs]
It's kind of cool to be a cartoon figure on TV. This is nothing radically new for me, however, since I was Garry Trudeau's model for Doonesbury. I was skinner then. This might not be true but it is true that Garry led me to believe that when he asked me to print his cartoons in the Yale Daily News. Taking a close look at the material and seeing the early signs of satirical genius, I said, sure Garry, we print anything.
All public officials are presented in cartoon versions, in the versions of self that the electronic media create.
This gives the media more power over politics than perhaps any industry has ever had.
The power comes from the ability to persuade the public as to the nature and veracity of public officials.
It also comes from the ability to make some officials well known, and others unknown.
And if you are unknown then you cannot obtain votes; your only remedy is to be a millionaire, marry a millionaire, or meet a bundle of millionaires in order to obtain the money necessary to sell yourself to the voters in ads the way others sell soap, software, or salsa.
The media are increasingly not passive in their exercise of power.
Last year the broadcast lobby persuaded Congress to give it a multibillion dollar gift of airwaves, the largest single gift of public property to the a single industry in a generation.
This occurred even while the FCC demonstrated that licenses to use the public property of the airwaves should be sold at auction for what has turned out in the aggregate to be about $2 billion actually received.
Broadcasters ran into opposing debate led by Bob Dole in the Senate and Barney Frank in the House.
These two public figures spoke to nearly empty Congressional chambers but obtained the approval of nearly every newspaper editorial board in the country. To counter that, the broadcast lobby prepared mock TV ads showing how a particular Congressperson was killing free TV. Then they showed the ads to some Congresspersons who were thinking the New York Times, Wall Street Journal and every other newspaper in the country, plus the unusual bipartisan coalition of Messrs. Dole and Frank just might be right.
After they showed those ads, this effort to sell these airwave licenses fizzled. Now the recipient broadcasters announce they don't know what to do with this gift. But even if they don't know what use to make of this spectrum, at least they know their competitors don't have it.
This case study demonstrates the immense lobbying power of the media. But it might be thought that the republic will survive an occasional bit of logrolling, even if the giveaway was extraordinarily large in size -- and that's probably true.
The real power of the media is the power to imbue the election process with a massive need for money simply by forcing massive fundraising to buy TV advertising time.
Because elections are conducted over the air and not on the ground, the media control the process. Because they charge for access to voters, a candidate for public office or an advocate for governmental action necessarily must raise massive sums to have a voice.
This is a threat to quality and equality in the political process. It is a threat to democracy, representative government, and the role of the individual in civil society. And since all this is captured in an offbeat witty way by Russell Baker in the New York Times today, you know I'm right without further discussion.
The primary job of the FCC Chairman historically was to give licenses to the airwaves to a limited group of folk and to rig markets so none would ever do poorly. The good reason was to permit the firms to do well economically; the bad effect was a closed, oligopolized market with little diversity of viewpoint.
The primary job now ought to be the opposite: introduce risk and reward to all sectors of the communications business.
The problem then is how to promote noncommercial purposes -- such as conducting civic debate about political issues or educating kids -- without simply relying on a cozy partnership between government and a tiny group of media magnates.
To figure this out, we need your help.
I feel the need for law to help us figure out how to use the media to reform instead of to capture politics, and even to help bring about change in education or health care. But why should we need law to guide our policies -- isn't saying the law requires a legal process a dread circularity? Why do we need law?
We need a policy revolution and an economic evolution in this country, and we need legal thinking to help us make that revolution the spectacular success that it should be.
We also need to make sure legal process doesn't defeat our goals.
Jerry Mashaw's new book, Greed, Chaos and Governance, sums up how litigation and bad court decisions can thwart sound policy-making.
"Delay [due to judicial review]...political timing of the agency's policy development. Rules that might have been successful at one period...become impossible to...implement as administrations and congressional personnel change. The willingness of the courts to second-guess the agency has also reinforced the adversarial posture of parties...Because the courts are relatively uninformed about what is important...anything can happen." (164-65)
Now we just need to persuade courts, the Congress, and the American public that this is true. In government today, agencies are entrusted with awesome responsibilities. We need help, not hindrances, from the judiciary.
But if you want successful political debate in this country you have to start by thinking about the following anecdote:
After interviewing Hillary Clinton on her show, Barbara Walters drew the conclusion that Americans aren't interested in politics from the fact that the First Lady got a rating of 24, as I recall, while Chris Darden got a 27. A 24 just wasn't a high enough rating. But think how many viewers that 24 represents -- about 35 million. That seems like a fairly substantial number of interested viewers, to me.
What this anecdote does reveal however is that, if we are to foster political debate, such programming must be part of something like a Barbara Walters special, in prime time, embedded in popular shows. We need Monday Night Football and ER to carry civic debate into the home -- and we can't make the price prohibitive. How do we achieve this goal? Red Lion and scarcity rationale aren't helpful here.
It is only appropriate that broadcasters provide something to the public in return for their private use of the public's airwaves. There are some public needs that the market won't provide. Although broadcasters can use the vast majority of their airtime to suit their commercial needs, it is fair that the public expect to receive some benefits that do not serve purely private interests.
Right now, we give the public property of the airwaves to private parties so that candidates for public office must raise hundreds of millions of dollars of private money in order to buy from private parties access to the public on the airwaves that are, as a matter of law, public property. Why does this make sense?
Couldn't we change this status quo and turn the airwaves massively and usefully over to all candidates for public office, for free, to the degree necessary to advertise their views -- say about $400 million worth of free political ads a year.
The fact that broadcasters use public spectrum makes these obligations appropriate, to my mind. This is a quid pro quo theory.
And could there also another source of obligation, related to the medium itself? An obligation that a medium with so much power must contribute in a special way?
For example, Congress has required that any direct broadcast satellite service -- like DirecTV or Primestar -- must reserve 4-7% of its capacity for use by noncommercial educational or informational programming, a requirement upheld by the D.C. Circuit.
And does pervasiveness matter? Does sheer ubiquity carry certain responsibilities? And what about accessibility? Right now the Internet requires a certain amount of effort and sophistication to use. Soon, though, it will be as easy to surf the Web as to change channels from Nick at Night to Must-See TV. Does that matter?
It mattered in Sable, where the Supreme Court held that telephone communications differed from broadcast communications in that a telephone user must take affirmative steps to receive telephone communications from a particular speaker, while a user of a TV or radio may come across unwelcome communications by a simple turn of the dial.
Notably, the Court's decision did not turn on the means of transmission, but rather on the nature of the communication itself. Perhaps transmission-technology justification for different media standards is a red herring, and that a better underpinning should be identified, one tied more directly to the nature of the communication.
The force and scope of the telecommunications revolution is requiring us to reexamine all our ideas.
In despair, perhaps, we might say First Amendment absolutism is conceptually attractive. It is also the easiest argument to make. But it has had some bad results: jeopardizing democracy and over-empowering commerce.
Because of the fierce and protective love of free speech that Americans have in their individual capacity, there is a steady push toward the highest First Amendment protection for all speech. This is seen, for example, in the treatment of commercial speech -- first accorded no protection, then limited protection, and now greater protection. There is also resistance to measures, such as labeling or rating, that might discourage the promulgation of certain types of speech or might result in fewer people choosing to "hear" the speech.
But note that, in addition to First Amendment purity, there is another force propelling us toward a flat First Amendment standard -- a force that is probably not recognized or embraced by the idealists.
That force is the marketplace.
A flat First Amendment standard is market driven. There is an inevitable race to go to the extreme, to catch attention through outrageousness, to push the envelope. The fewer the limitations on a medium, the better the ratings. Broadcasters will tell you very frankly that their programs have become more "adult" because of pressure from cable, which doesn't share the special status of broadcast. Hard liquor manufacturers need to get Tequila and Kahlua onto television if they're get their market share up. Broadcasters want to sell ad time to the highest bidder -- they don't want to carry educational shows for kids or free time for political candidates or a roundtable on local politics. Broadcasters invoke the First Amendment to protect their profits.
In many ways it is a very positive thing that big business vigorously pursues First Amendment claims. They have the money and the interest to keep the pressure up, to keep speech free from intrusion. But the corporate view of what the First Amendment guarantees, and precisely what values it embodies, is not necessarily the same as how we as citizens might view the First Amendment's goals.
The Founders conceived the First Amendment to make sure that government could not suppress speech. It has largely succeeded. Now we face a different free-speech problem. Much of the threat to the dissemination of diverse ideas and viewpoints comes not from threats by the government, but by the business interest of big conglomerates. We need a new paradigm, and a new generation of activists and advocates who will stand up for democracy and make sense arguing its claims.
What better place to find it than Yale, and where else would you expect me to go to ask for help than here?