Remarks

By

MICHAEL K. POWELL
Commissioner
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:

? In the 1920s, the government seized the broadcasting spectrum 
declaring it a public resource to be used only with its permission.

? By controlling its distribution, government ensured that spectrum was 
scarce, and by giving it away free, as any economist will tell you, we 
ensured that demand for it would always exceed supply.

? Since more people want the spectrum than is available, there must be 
some mechanism, of course, for choosing among competing 
applicants.  So, historically, the government (often only a handful 
unelected Commissioners) chose the applicant that it deemed most 
worthy.  The one, who pledged to display and broadcast the messages 
we preferred, won the grant to do so.

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.
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