Text Version
Remarks of Commissioner Rachelle B. Chong
at the
National Asian Pacific American Bar Association
1996 NAPABA National Conference
Denver, Colorado

November 15, 1996

The First Amendment in an Information Age

Good afternoon. It is a great pleasure to speak to this distinguished group of Asian American lawyers. It is awfully kind of you to voluntarily submit yourself to a talk by a dreaded government regulator! I can only assume that what has drawn you here was the promise of food!

While lunch may have brought you here, I am here for different reasons. First, I want to personally thank the Asian American Bar for its enthusiastic response when I was being considered by the President for my FCC post. The support of my community meant a lot to me. I am very proud to be the first Asian American FCC Commissioner.

My second reason for coming is to make a pitch to get more of you, my fellow members of the Asian Bar, involved in politics. Through the years, I have learned that when a community looks for leaders, it often looks to its lawyers. After all, the law is a very special calling. It has a way of attracting dedicated individuals determined to make their mark on this world -- to make it a better place.

The skills that make a good lawyer -- like organization, problem solving, and advocacy -- also make a good leader. Maybe this is why, in Avenue Asia's article about The 500 Most Influential Asian Americans," nearly a third of the government and nonprofit leaders listed held law degrees.

What this tells me is that from our legal ranks come many of our community s government leaders. If I may be candid, while our community has made great strides in the professions, in business, in education, and in sports, I believe the Asian American community could be doing much better in its representation in government, particularly in Washington. While significant progress was made as to Asian Pacific political appointees in the current Administration, much more needs to be done.

One new organization in Washington has taken on this task. The Congressional Asian Pacific American Caucus Institute, or CAPACI, was formed two years ago as a nonprofit organization to advocate for the needs of Asian Pacific Americans.

I have gone to CAPACI's huge annual dinner in Washington for two years running. One fun observation: The first year, the emcees were Ming-Na Wen and George Takei. The second year, the emcees were Tamlyn Tomita and Garrett Wang. This prompted A. Magazine to speculate that the CAPACI charter must include a requirement that all fundraisers must be cohosted by a Joy Luck Club alumna and a Starfleet officer!

Maybe there is another rule that the President must speak at these dinners. He has attended both CAPACI dinners. At this year's dinner, he recognized a number of issues important to our community. It is indeed progress to have the Chief Executive realize that Asian Americans have different views on issues like affirmative action, immigration, and bilingual education.

While CAPACI's work is a mark of progress, our community continues to need good people willing to step forward and lead. The natural candidates are in this room. And so, I urge each of you to consider taking at least one government, public policy or public interest job at some point in your career.

If enough of us say yes to every level of government service -- from the school board to the city council to the top jobs in Washington -- it means more political empowerment for our community on a national level. Let our voices be heard! Information Age

My own service involves watching over the telecommunications industry. Unless you have buried your head into a bowl of sticky Hawaiian poi, you have probably heard about the new Information Age that we are entering. I wanted to tell you why you ought to be excited about it.

Futurists tell us that we are entering a high tech era in which "information" will be a new commodity to be traded globally -- just like steel or rice. They say there will be a huge demand for up-to-the-minute information, and for communications and information technology that allow you to access this information instantly, no matter where you are in the world.

They conjure up pictures of every citizen driving an Information Superhighway, navigating her way easily to a vast amount of inexpensive information through a personal communicator. No, the personal communicator won't be a "commbadge" like the ones on "Star Trek" -- at least not right away. But don't be surprised if your future device is a cross between a cellphone, a pager and a wireless laptop computer. This isn't "poi in the sky!" Lawyers everywhere -- including you! -- will come to rely on this new gizmo, because it will make us more efficient and effective.

So what is this Information Superhighway? Think of it as a network of networks -- a network of communications, computer and information networks, each capable of rapidly sending and receiving information from each other through wired or wireless pipelines.

Most agree that an Information Superhighway is already changing how we do business, where we live, how we learn, and how we receive health care. For example, people don't have to live in the cities to do certain types of work. They can telecommute -- accessing what they need to work through the Information Superhighway, and working wherever they want, perhaps in a cottage in the countryside. Think of how this trend could help with urban overcrowding and vehicle pollution.

Another plus: teachers are learning that telecommunications systems and Internet access enhances campus safety, improves parent-teacher communications, and stimulates the kids' imaginations.

It is particularly significant that the Info Superhighway opens more doors of opportunity for the nation's four million school children with disabilities. Communications technology can provide access to libraries that may not be visually or physically accessible, and can also help disabled children better interact with their teachers and classmates.

Just last week, the FCC and some state regulators put out recommendations on a new universal service program. The program will establish a $2.25 billion fund to help connect every library and K-12 public and private schools to the Internet. We have also recommended very steep discounts on communications services and Internet access for schools and libraries.

Health care providers are using the Information Superhighway too. Health clinics serving remote areas such as the Alaskan Bush or Hawaii can rapidly send X- rays or CAT scans to doctors in urban hospitals and seek expert advice for their patients. These kinds of revolutionary telemedicine applications are becoming a life saving reality for rural Americans, and lowering health care costs for us all.

The First Amendment in an Information Age

Let me shift now away from how to use the Information Superhighway and focus on the content portion of the Superhighway.

Here's the issue: What is the proper role of government in content regulation, not only for broadcast stations and cable television, but also for new medium of the nineties -- the Internet?

Content regulation is a subject that always sparks heated and emotional debate. The reason is simple. Content regulation touches on a principle at the very core of our system of government -- our right to freedom of speech.

Now, I am no First Amendment scholar. But I am, for better or worse, a regulator who must on occasion make decisions regarding media content. This is a task that I take very seriously, due to my deep and abiding respect for the First Amendment. As Senator Inouye rightly said at my Senate confirmation hearing, it is the guarantee of free speech that sets this country apart from the rest of the world.

In a moment, I am going to talk about content regulation on the Internet, even though the FCC does not regulate it. First, however, to set up some background, I will tackle the timely topics of television violence and hard liquor ads on TV.

Television Violence

Topic one: television violence. Wherever I go, I get an earful -- especially from parents -- who are deeply troubled by the level and amount of violence they see on TV. They feel helpless and beg me to do something about it. They argue that government action, like bans on violent content, is needed to protect children.

I get an equal amount of complaining from broadcasters and cable operators who invoke the First Amendment. Hollywood doesn't mince any words either. Steven Bochco -- producer of NYPD Blue and Hill Street Blues -- once referred to the FCC Commissioners as "six dopes in suits" who have no business interfering with Hollywood's creative efforts!

Let me first say that I don't agree with those who say that government ought to be totally "hands off" in this area. Government can and should play a helpful role as a facilitator within the bounds of the First Amendment.

Let me be clear that I am not calling for censorship. In a society where free speech is paramount, no one wants to have a bunch of Washington regulators deciding what you can and can't see on TV. My own husband doesn't always agree with me on what's worth watching -- why should the rest of the country?!

I think the better solution is for government to form a partnership with industry and parents. Government should create a framework within which the industry is encouraged to self regulate, and in which parents have enough information and tools that enable them to make viewing choices for their children.

This is the role our legislators assigned to the FCC in the 1996 Telecommunications Act. The new Act directs the FCC to require TV manufacturers to put a computer chip in TVs -- the so-called V-chip or violence chip. Using the V- chip, a parent would be able to program the TV set to block certain shows using an electronic signal, sent by the broadcaster, that would rate the show.

The V-chip rating would work like ratings on computer software and simply would identify the program as "violent" or "sexually explicit." Any parent with the technical savvy to figure out how to work the V-chip program will be able to block TV programs they do not want their children to see. You know the parents I mean -- those whose VCR's are not still flashing "12 o'clock, 12 o'clock, 12 o'clock!"

To make the V-chip work, however, we must create a practical rating system for television programs -- both on broadcast and cable TV. The broadcast, cable and programming industries are working on this as we speak.

I have gone on record urging the industry to reach a consensus. Here's the motivation: Under the 1996 Act, if there is no voluntary rating system by early next year, the FCC has to develop it. Obviously, this is a much more intrusive government role. I personally have doubts about whether any government rating system will pass constitutional muster.

For one thing, it would be very difficult for the FCC to craft a definition of what constitutes "violence" in a program. Violence is necessary to many stories; for example, Shakespeare's "Romeo and Juliet" contains a fair amount of violence but it is critical to advance the plot line.

From a constitutional point of view, any definition the government sets will be subject to challenge by someone contending that the definition is not clear enough. How will the FCC parse out harmless violent speech from harmful violent speech? While the movie "Die Hard" or "Pulp Fiction" may earn a violent rating, so might "West Side Story!

I don't want to go that far, so I call on the industry to be both responsible and responsive. The industry can be responsible by developing a workable rating system and by making programming choices with all their viewers in mind, including children. They should also be responsive to community's concerns about violence by airing shows with mature or violent themes in later evening hours when children are less likely to be in the audience.

I want to emphasize that parents have a critical role too. Parents should not use television as a babysitter and expect government to be a substitute parent. Instead, parents should closely supervise their children's TV watching. In sum, while I think it is government's job is to see that information and empowerment tools are available, ultimately, parents must parent.

Liquor Ads

That brings me to yet another hot topic -- hard liquor advertising -- where it seems to me that responsible broadcaster behavior is particularly important.

In the last few weeks, the Distilled Spirits Council of the United States announced that its members were ending their decades long voluntary policy of avoiding TV and radio advertising. The hard liquor folks argue that since wine and beer companies advertise their products on broadcast stations, they should be able to do so in order to compete. A handful of broadcasters have indicated that they intend to accept the ads and have begun airing them.

This announcement has created a firestorm of protest from groups like Mothers Against Drunk Driving who do not want liquor ads aired. They are particularly concerned about children seeing such ads and believing that drinking is a cool thing to do. They are worried about teenage drunk driving. MADD and others have called on the FCC to act.

While I am very sympathetic to these pleas, I am not sure there is a formal role for the FCC here. First, it is the Federal Trade Commission that has primary jurisdiction over advertising. I am concerned that any actions by the FCC could be duplicative.

I also see constitutional issues here. Just last term, the Supreme Court held that truthful hard liquor advertising falls squarely within the protection of the First Amendment. This means that a government imposed ban on such advertising is subject to special constitutional scrutiny. Given the strength of the Court's decision, I think it would be difficult to overcome this hurdle.

In addition, any FCC-devised ban would face an even higher hurdle. There is no statute that bans or limits liquor advertising on the broadcast medium. This is important because caselaw developed when the bans on cigarettes ads were imposed holds that Congress is the appropriate body to decide that such a ban is needed. For all these reasons, I believe that the FCC must tread very lightly on this issue.

I think it is also important to recognize that for many years, broadcasters have been responsible and voluntarily declined to air hard liquor advertising. I was glad to see that last week, four major TV networks have announced that they intend to stick by that policy as to the stations they own. I am hoping that other broadcasters will see the social benefit in this and do the same.

I point out that broadcasters have been fairly responsible regarding the content of the ads they do air. In recent years, broadcasters have encouraged advertisers of beer and wine to present informational ads that are aimed at adults, not children. In addition, I am told that many have a policy of refusing ads that are targeted to children, or in any way promote alcohol consumption.

In sum, while I don t think the FCC ought to take the lead here, I am a socially conscious citizen. I strongly encourage broadcasters and advertisers to be responsible and responsive to the concerns about these ads. We do not want to encourage underage drinking or drunk driving, and any voluntary actions they can take should be done as good corporate citizens.


I have gone a little far afield from my original topic. Let me take an on ramp back on to the Information Superhighway and briefly discuss content regulation as it applies to a new medium of the 90's -- the Internet.

Some of the same issues that apply to traditional mass media also apply to the Internet. Many are concerned about minors accessing inappropriate adult material on the Internet. I have heard calls to ban such material entirely. Applying the same principles that I have put forth earlier, however, I do not believe we should heed such calls. Government censorship is not the right path to take.

There are some who disagree with me. A provision of the new Telecom Act, for example, imposed criminal penalties for anyone who knowingly makes indecent or patently offensive material available to children over computer networks. The penalties under this "Communications Decency Act," or CDA, could have been as severe as two years in prison and stiff fines.

Lawsuits challenging the CDA have been heard in two U.S. District Courts -- one in Philadelphia and one in New York. Both courts concluded that the CDA was unconstitutional because it is substantially overbroad. It effectively forces many Internet users to forgo constitutionally protected speech or risk criminal prosecution. The government has appealed these decisions and the Supreme Court is likely to take this case up this term.

In the meantime, let me double back to my earlier theme and suggest that the government could take a less intrusive approach. Government could encourage content providers to be responsible and responsive to the concerns of parents. I believe that calls for Net censorship will lessen if content providers actively work to develop a technological means of ensuring that no minors receive adult material on the Internet.

Once again, I urge parents to be proactive and monitor their kids' use of the Net. They can sign up only for computer on line services that monitor Internet content for appropriateness, and have parental controls. Another option is to purchase screening software that helps block access to all Internet sites except for those that parents choose to make available to their children.

If content providers and parents do their part, we can lessen the calls for intrusive government content regulation of the Internet, and continue to safeguard First Amendment rights of the Internet providers and users.


Having worked my way to the Internet and beyond, I will end my talk here. I hope if nothing else, you are as excited as I am about our high tech future. I think we can roar right into the Information Age while still guaranteeing the First Amendment rights that have made our country the cradle of democracy in the modern world.

Thank you again for the honor of speaking to you.