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Federal Communications Commission
Before the
Media Institute

Acceptance Speech for the Freedom of Speech Award

Washington, D.C.
October 20, 1999

(As Prepared for Delivery)

Thank you, Judge Edwards for your generous remarks. You are, and always will be, my friend. And to Decker Anstrom, with whom I share the spotlight this evening, I congratulate you on the American Horizon Award that the Media Institute Board has so rightly bestowed upon you. In my two years at the Federal Communications Commission, there have been few advocates who have fought with such measured passion and intellectual rigor on behalf of their respective industries. Decker Anstrom is one such advocate, and he ably served the cable television industry during his tenure at the National Cable Television Association. You are sorely missed in Washington.

Ladies and gentlemen, Dick Wiley, and Patrick Maines, it my distinct pleasure to be here with you tonight and to receive the Media Institute's Freedom of Speech Award. My parents taught me never to work for awards, but instead only to accept them in recognition of a job well done. I am sincerely honored and humbled by this recognition and only hope my work lives up to this tribute. For this, I profoundly thank the Media Institute.

Since they are with us tonight, let me begin by thanking my mother and father, Colin and Alma Powell, who are the individuals most responsible for who I am. I can assure you that as a child I often tried to assert something akin to a First Amendment right in their house, but with little success. Perhaps this is where I gained my interest in the subject. I also want to thank my wonderful wife Jane, who is probably most responsible for keeping me balanced, and to whom the First Amendment does not run either. And, special thanks to my dear friend and mentor Judge Harry Edwards, in whose hushed chambers there were no individual rights at all. Nonetheless, it was the most prized professional experience of my life.

With that formative experience, it is amazing that I am being recognized for my faith in the preeminent and most cherished Constitutional Amendment. In fact, it is ironic. You see, in law school I deeply disliked the First Amendment. Its application seemed random and fuzzy. To my mind, it seemed foolishly to sanction reprehensible behavior—KKK demonstrations, Nazi marches, hate speech, violent and profane public displays. I grew up respecting government and could not comprehend how these behaviors and expressions could be valued so highly and the State trusted so little.

In my current position, however, I have gained a deep and profound respect for the wisdom of having an unwavering principle that stands at the summit of the Constitution, and holds: "Government shall make no law abridging the freedom of speech."

When Government compromises this commandment, the Governor enjoys unbridled discretion to favor, and at times direct, the content of the voices we hear and the images we see. Undoubtedly, the Governor that takes such liberty with the Constitution believes he does so out of benevolence, the greater good, or the "public interest." But, this is not the covenant the people made in surrendering limited authority to the State. Benevolent or not, we did not sign away to a Philosopher-King the responsibility to determine for us, like a caring parent, what messages we should and should not hear.

Our forefathers understood that Governors have an innate instinct to misuse power for their own self-interest, and that the power to abridge speech and information is the most potent instrument of all. That self-interest may be direct, like lavishly spending public taxes on personal needs, or subtler like choosing messages that promote the viewpoint of a favored constituency or to curry favor for political gain. Either way, the temptation to do so is too great, perhaps irresistible, and thus the Governor should not imbibe the wine of content control without deeply compelling justifications.

Perhaps it is unremarkable that the Federal Communications Commission has always found itself embroiled in the question of content, having authority over broadcasting and other mass-market megaphones. Though there is only one Number 1 amendment, we oddly apply it in two different ways. We have deemed broadcasters uniquely unworthy of complete First Amendment protection, allowing greater intrusion on broadcast content. Yet, equally powerful communications media such as newspapers and magazines, cable television, satellite television, and the Internet, all enjoy the full shield of the First Amendment.

When one looks at the tortured rationale for finding broadcasting uniquely undeserving of First Amendment protection, one gains new respect for the founding father's fears. The reasoning for bending the Amendment is as gnarled and twisted as a foreboding tree on Halloween. Consider the following:

No matter that this content-based practice could tread on one's First Amendment rights. Scarcity of a public resource was deemed a sufficient explanation to bend the most venerable pillar of law.

The slight-of-hand here is that scarcity is not unique to broadcasting. Indeed, scarcity is the definition of any economic good. The basic economics of supply and demand distribute scarce goods to their highest and best uses, whether they are oil, coal, steel, or lumber. As the D.C. Circuit noted in TRAC v. FCC, "There is nothing uniquely scarce about the broadcast spectrum," noting that scarcity is a universal fact pertaining to all economic goods, and thus cannot really explain the different treatment afforded to broadcasters. Telecommunications Research and Action Center v. FCC, 801 F.2d 501 (D.C. Cir. 1986)

But, more troubling, is the fact that if scarcity was ever a defensible explanation it is certainly farcical in the modern digital era, which is marked by abundance. Choose your measure: growth in the number of networks; the number of radio and TV stations; or the arrival of new media, such as cable (which openly boasts of the 500 channel world), Direct Broadcast Satellite (which actually delivers it), and the Internet (a bottomless well of information). Yet, under the law, every one of these other media enjoys the full benefit of the First Amendment. It is simply intellectually dishonest to say that the First Amendment changes as you surf through the channels of your modern television set.

It is the inescapable reason that the scarcity fiction is maintained that is constitutionally most disturbing. A professor I respect described it bluntly, he said "the belief—or at least the assertion of a belief—in a scarcity theory exists because those who wish to continue broadcast regulation believe that some theory of unique scarcity must exist. Otherwise, broadcasters could not be controlled by the government—or its perception of the 'public interest.'" This willful denial of reality in order for government to retain the power to control speech, unimpeded by the First Amendment, is, to my mind, a subversion of the Constitution.

Lest I sound like an industry shill, let me add this. This state of affairs is not all the Government's doing. The industry has regularly traded its First Amendment rights to obtain favors from the government. However, I submit, the Framers did not mint the First Amendment to serve as currency. To offer it as such is to trade away one's moral right to cry victim when the bargain is accepted.

Finally, all of this is not to say that we citizens should not be outraged by violent, sexually explicit, or other offensive sights and sounds. Or, that we have to necessarily endure a barrage of insulting, shameless images in deference to the almighty advertising dollar. We are the customers, it is our preferences that the media must ultimately serve, and thus we must be willing as a society to exercise that power to get what we want. We certainly should turn off, tune out, walk away, and raise our voices when disturbed by what is peddled to us. But, we should think twice before allowing the government the discretion to filter information to us as they see fit, for the King always takes his ransom.

Thank you so very much.