The First Amendment; First Amendment And A Free People: Ithiel de Sola Pool, MIT; 3

The following program is made possible in part by a grant from the courier corporation of Lowell Massachusetts. WGBH radio in cooperation with the Institute for democratic communication at Boston University. Now presents the First Amendment and the free people. An examination of the media and civil liberties in the 1970s and now here's the director of the Institute for democratic communication Dr. Bernard Reuben. Our guest on this issue of the First Amendment and a free people series is professor is Professor if the oldest sort of pool of the MIT Our subject is how communications technology the emerging technologies are affecting the First Amendment of the Constitution. Professor Poole is a graduate of the University of Chicago and is the author and Ruth Sloan professor of political science at MIT a very well-known author receive the Woodrow Wilson award for the best political science book was entirely American business and public

policy. Very well-known book of his Among the many is talking back which was published in 1973 the subtitle is citizen feedback in cable technology. I'd like to start if I may you know with a broad question and that is we all know that the print press has been traditionally protected by the courts and by the normal judicial process. In regard to freedom of print and speech and so on and so forth. And yet the new cable technology and other technologies are have been governed by regulation. I wonder if you comment about the differences between these various means of mass communication in that in that respect. Yes Bernard you raise a very important question. I think we have to go back historically if we want to understand this difference. If you look at the First Amendment it says that Congress shall pass no law

abridging freedom of speech or of the press. Now that sounds very straightforward. Congress will pass no law. It seems easy they all have to do is nothing. But if we look at broadcasting today why there are no elaborate set of laws. The whole operation of broadcasting is regulated by the Federal Communications Commission under the Communications Act of 1934. How can this conceivably be justified. How going to be constitutional. Well I think we have to look back at the way in which this all came about. Back at the 200 years ago at the time of the founding of the country there were essentially two ways in which you could communicate you could communicate face to face by conversation by voice people could get up in their town meetings or in their churches and say things or you could put out pamphlets and newspapers on a small press. And that was essentially a one man

operation also a man would set himself up as a printer and would set the type by hand for or throw a leaflet or an issue of paper. And there weren't any resources that weren't available you could get paper you could get ink you could sew that. All that was needed to protect freedom was the government shouldn't interfere. Well along came new ways of communicating that many new ways Telegraph in the middle of the 19th century the telephone the camera making photographs and then the movie camera making movies. And then after 900 radio came along and in the 1920s radio began to be used for broadcasting. And very quickly the air became full of stations trying to broadcast over the same limited spectrum and they began to interfere with each other and the

industry itself came to the government and said look this won't work where you can't hear the broadcast because they're all interfering. And so Congress passed the Communications Act setting up providing for the licensing of the spectrum. Now this looks on the face of it like exactly the opposite of what was intended for the communication system of this country here is a government regulated government allocated system in which you have to get a license in order to communicate. And we all know what happens when any government has the power to tell license why there is. There is every temptation in the world to use the government's opinion as to who is who want to get the license or who shouldn't. So there is a lot of problem about this exactly what the First Amendment was designed to prevent but it's what it was essential nobody could see any way around it because if you didn't have

licensing this scarce spectrum of which there wasn't very much would be simply unusable. And that's that's the basis for the two very different systems we have in the broadcast realm and in the print realm. Well to get to one other aspect of it the Federal Communications Commission which is so involved in regulation of the electronic means of mass communication seems to be around in two directions one to make sure that the channels are allocated according to its rules. And on the other hand when anybody and it's my own personal view it tends to get to make the system more democratic it itself champions the First Amendment saying that it cannot interfere. And the net result is we have corporate control to an excessive degree of the mass media. Paul you want to add to that Trifolium goes even beyond that.

It seems to me that the government tends to champion the established interests which of course have the. Clout most organized in so far as holding back on new technology and cable television it seems it's a great fight every time we want to broaden the spectrum to speak in technical terms in terms of cable television and now in terms of insertion of new VHF stations space stations in the channel to channel 3 13 area. So if you're going to break in there and ask you directly since Paul brought this up about cable TV's going through a metamorphosis now attempting to become a butterfly from a moth on the air station's public knows this is the free television stations particularly our objective and the majority opinion seems to be objecting to any more freedom for the cable just what is the situation now.

Yes it's exactly as you describe it and I think what what you Paul and you Bernard have been describing is the size the why a government regulated communication system is a cause for concern because inevitably the regulation is biased towards some interest and it's almost bound to be the powerful interests. That's the way governments work. And if the challengers come along regulation is used to stop the challengers and that's exactly the story you're describing with regard to cable. Under FCC regulation a great industry has grown up since the 1920s first radio and then television. And it's doing many ways an extraordinary job in delivering a vast amount of entertainment and information to the American public. But the billions of dollars invested in this great vested interests and now a new technology comes along that gets

around the shortage of spectrum because it delivers the signals not over the air where they can and where they interfere with each other but through the closed medium of a coaxial cable where they don't get out they don't leak out to interfere with other signals and that way you could have. An unlimited number whatever the economics will bear. Of different sources. You're right back in the possibility of having something like that. The print model might even have up to 60 or so channels in a community I theoretically Well not not only theoretically a cable will handle up to about 35. So if you want two cables you can have 70. If you have more cables you can have more you can have it's an unlimited thing just like it's unlimited how many magazines or how many pad flights or how many advertising leaflets one can print.

It's the economics determines it. Now there are two problems One is that the cable people haven't been really able to break in. To the domination of the major urban areas that seems to have been closed off to them and all effective manner they do have subscribers but a very small percentage of the total possible audience. And also they're disappointed in the ability to really affect rural life in this country which should be. Should we pay most attention to at the start which is the priority item the urban crisis in cable or the rural crisis. Well I don't think there's a crisis in cable a lot of people talk about cable not succeeding because there were unreasonable expectations. Basically as I say it's an economic question if cable can deliver something people want and are ready to pay for then it's there or available it can be done and of course if it doesn't deliver anything that is that is worth paying for it's not going to go anywhere now about 15 percent of the American public is now

receiving its TV over cable. And what are they paying for. Well they're paying for better reception for example in places where TV reception is bad and they're paying for more channels in places where they're not in a big city where they have lots of channels but somewhere remote and they don't get as many channels as I'd like. But there are lots of other things that can be offered on cable. For example pay cable can offer. Current popular movies. Right now over the air television the advertiser pays now what the advertiser pays about two cents for each viewer hour. He's not going to pay much more because it isn't worth it. I mean after all he'd have to sell a lot of his product to make it worth paying anymore. That means that what you get out on over the television is essentially a low cost production it's not the kind of thing that's made safe for a theater showing in movies.

But if you can get people who are paying two three four five dollars going to a movie to pay a quarter to watch the same thing at home this is 10 times or more what the advertiser pays. And so it becomes worthwhile to provide all sorts of exciting things for the home. Now of course as you say the broadcasters view this with the long arm quite properly so if you have a large corporation who's whom you're supposed to be taking care of was welfare you're supposed to be protecting. You don't favor competition. But as far as the general public is concerned this offers the opportunity to provide by cable whatever. People are ingenious enough to think of its worth selling over the air. I was thinking of cable television past possibilities as offering us the ability to cry and climb into the atmosphere intellectually and spiritually

and in information since we're now down in the miasma lagoon the swamp of television offerings. It appears to me that the current television seasons have by because of the corporate domination of on the air television have produced a sameness a limited number of ideas a limited number of opportunities to present ideas which is approaching the point of danger. If one wanted to look to an authoritarian government of the future maybe you would say one of the precedents should be that the major instruments of communication should be choked off and not fulfill their major possibilities. This strike you or is this too far fetched. No I think that the sameness comes from the same economics as we were just talking about if you're supporting your broadcasting at 2 cents per viewer hour. You've got to have a popular mass product because you've got have lots and lots of viewers.

If there is a small group of the population that wants opera or wants a course in French or you name it and are willing to pay 25 50 cents a dollar as individuals for the thing they want then you can put material out that will interest this. These limited special groups and this is the whole basis of the free print system that we've got all sorts of specialized things a printed publish these days are of interest to very very small groups. Books are printed for print run of 2000 and then they succeed. And they go to specialized professions they go to a specialized political groups specialized religious groups all sorts of specialized groups we can't service that kind of audience electronically with a brawl over the air broadcast system but they can be serviced by a cable system. But the remaining problem of course is that the regulations that were

introduced because of spectrum shortage and were regarded then as an exception to the First Amendment because of the very special technical problem that you had to have rules of the road in the spectrum. Have now become historically accepted and are being extended to this new medium which is really like a print medium and should be treated like a print medium and which shouldn't have any regulation and I can't see the Constitutional basis for it. Right and one of the things that is being withheld. First run films now films of course constitute a very wonderful way of exchanging ideas about social life currency. Every every facet of thought and indeed their production is determined by the availability of the mass media for dissemination. Paul I was wondering do you think that the broadcasters are going to give it all. Do you see any hope within the on the broadcasting community that they will look upon say cable with

objectivity or will this this fiscal domination lead them to the edge of the cliff. Without hesitation. Well in terms of objectivity No I don't think so but it seems to me what forces the entrenched interests into making a change or apparent change is to win them over because it becomes part of their own best interest. Many broadcasters have covered their bet by investing in cable Cox not the networks but the many broadcast groups Cox Broadcasting out of Atlanta has a huge cable system a series of systems throughout the country. So if they're already involved and it seems to me as it becomes a part of their own best interest then we will see a change. And this seems to makes make some make some sense in terms of the economics which is coming back to and I think to me at least is the basis for the whole because I don't think we're going to change by regulation. I think it's going to have to become an economic

economic interest of the broadcasters and eventually to the people and eventually to the Congress. Perhaps you could comment on what you see as the economic and political implications or background of the recent McDonald committee report which seems to now be saying from the Congress now let's get on with cable. Let's begin to treat it as a as a medium which has a rar and which should be taken seriously something which Congress is sidestepped. Up until this time yes that's a very important report because it raises not only the economic issues that you referred to but it raises for the first time in a clear way the constitutional question it raises the question of whether it isn't unconstitutional for the Federal Communications Commission to a doctor rule like the one which says that a

cable caster can't put on the cable a movie between that is between 3 and 10 years old. The rules that now stand say they can put on an old movie or they can put on a brand new movie but they can't put one on in between now why did they do that. Well the argument was that the Federal Communications Commission is responsible for protecting the over the air broadcast system that that was set up to regulate it. And it shouldn't allow it to be destroyed. I don't think there's any danger of its being destroyed but let's let's give the FCC the benefit of the judgement on this and let's let's assume that they were such a danger. So the FCC says in order to protect it from being destroyed we're limiting the kinds of movies that the cable casters can send out. Well that's but all makes sense except that I don't see what constitutional basis there is for the car.

The Constitution says that Congress shall make no law concerning the freedom of speech or of the press. Now if cable casters find that by putting many middle aged movies at house they can succeed and if this hurts over the air broadcasting I think that may be unfortunate or maybe fortunate but it's not something on which I can see any basis and a constitutional basis for for government action. And the McDonald's report was the first report the first document that raised this issue clearly and I think the courts are going to decide this one of these days and I suspect they're going to throw out most of these regulations just for purposes of identification that was Professor if he held a solar pool. Who is our guest. I want to wish that you would comment on an aspect of what you just said and that is Congress shall make no law under the First amendment prohibiting freedom of speech or of the press right of people to peacefully assemble and religion and so on. But administrative tribunals do a great deal of grievous work as it turns out.

Is this a blank area in which because it is a regulatory agency Congress has been lax in looking into the question whether the effect of law or the force of law actually has come about. And do we need some basic studies. Apart even from the cable question on the First Amendment to see whether the regulatory agencies have any overseers that are sufficiently strong. Oh I think we do need that I think it needs to be looked at all the time. If one is in the regulating business one regulates and if one is in the legislative business one legislator and the point of the First Amendment and the point of view of free independent organizations consider addressing themselves as oversight Guardian organizations looking at the enforcement of the First Amendment is to see that those who are. Who have this natural impulse to use their powers

have the whistleblower from time to time and the regulatory agencies presumably have the whistleblower most often by the courts but the courts don't act spontaneously. The courts act when citizens protesters are. Conflicting interests come in with a prepared case and saying look we feel that this is wrong. You have to have an adversary proceeding. And one of the functions of citizen groups one of the functions of study groups is to examine these situations and see whether there is something that should be brought to the attention of the court to be a wide problem. There was an expression I've forgotten who said it that attorney doesn't come in like thunder comes in on cats feet so that you hardly hear it in regard to I remember some years ago Admiral Louis Straw's of the Atomic Energy Commission at the time said there was no danger of radiation fallout. And he said I say this as the head of the Atomic Energy Commission turned out later he was wrong in some of the Nobel Prize scientists who were politically coerced

were right that they weren't speaking politically but scientifically we find this in the intelligence community you know is there a general breakdown if we are concerned for those of us concerned about the first of a general breakdown in the overseeing ability of the legislative arm. Well yes and no when you say a breakdown that is you know this presumes that there was an ability. Yeah that's right. I mean this is eternal vigilance is the price of liberty and right now we worry about it now but it was a problem just as much for our forefathers. But it's possible that there never was this ability and yet there is the void. If no one checks the regulators they are not going to heed study calls are not going he learned professors or civil rights advocates are representing the bar. They're just not going to heed. They're going to get away with it is there any way we get around this impasse. That's right and that they're doing this with all the goodwill in the world I mean they are set up they're

paid a salary hired to see that a particular industry runs smoothly. That's their job it's not their job to think about all aspects of the social implications of what they do although we might wish that they might do so but there's something Kafka esque about all of this I see a great many desks one after the other with bureaucrats doing thing. I'm a great believer in bureaucracy that's the way government moves and I believe in the sincerity of most American bureaucrats. But given all this uncertainty in the world the FCC is a good example of an inability to change biologically with the times that it remains the FCC it doesn't slap at its wrists with feathers and so on and so forth and sometimes there has to be a cut as there is on cable television and one wonders whether there is sufficient. Propelling power from the present mechanism. Yes I think at the heart of the problem is is in Congress the FCC I think is doing the job that it was set up to do and doing it well.

The Congress has been as Paul suggested primarily concerned with over the air broadcasting and a great many of the members of Congress have been involved in that because they have been in politics. They've risen to their jobs as congressmen through politics and politics means a lot of use of the media and many of them are involved as partial owners of broadcasting stations and so on. Congress I think is beginning to see that the new technology is changing the picture but it's taking a long time. One thing I would like to catch you on and I don't think it's off the subject but perhaps it broadens it a bit. I feel that what brings change from these entrenched interests is the change in economics which is usually technological change. What seemed to pick up stocks. The stock market in cable was the all the hoopla during last last winter last fall over a

interconnection of satellite with satellite of the cable systems for the SERP a cable which you were talking about the Home Box Office the the theater the sports in your own home. And this suddenly brought cable back to life. Stocks came from just on the doormat up to least respectable levels again. Yes. Can you give us briefly a sense of of a larger view if not a world view of where where we're going with. We've been talking about each technology separately. Now it seems to me we have cable. We have broadcasting and they are becoming intertwined. We now have satellite internet connection which is no longer futuristic we do have a domestic satellite which is now taking the part of of AT&T is interconnection. Can you give us some reaction to where you see this larger view of these integration of technologies. Well there are lots of ways in which electronic

signals can be used for communication you can transmit pictures and facsimile voice. Data all of these things and they can go over wires that go over glass fibers they can go over the air and the historically as this new technology began to come in since the end of the 19th century we learned to do one of these things at a time but what's happening now is we are getting sufficient mastery so that the whole system becomes is becoming an integrated system and signals can be used in all these different ways and delivered on a single system. And that's what it is revolutionizing the whole electronic and indeed the whole communication system of the country. In regard to films you think that that simple regulation will be changed so that cable viewers will be able to see the spectrum of films that's created by artists and not as decided by the FCC that's being challenged in the courts I suspect the courts may overrule it but I

think it should be challenged on a different grounds than the one it is it's not being challenged on the grounds of an infringement of freedom of speech it's being challenged on the ground seems to be a clear violation of freedom of speech. The questions of clear violations of freedom of speech are sufficiently impressive to us I think from this discussion that I am left with a certain feeling of disquiet that things are moving faster on the technological side than they are on the political side. Could you comment on that. Well technology generally moves faster that's the historically one of the great sources of social tensions has been changes in technology and it takes people a long time to catch up and know learn how to handle them. And we're faced with that right now. We're sort of babes in the woods on this whole question and I want to really thank my colleague Paul Prince for joining me in this discussion with Professor Ifill the soul of pool

and as always if I may say so if you know you not only bring us the complications but you generally clarify and there are very few people that do that because especially on this subject there are so many complications that we mean even for the people closest to it. And I thank you very much and I thank everybody for listening. Radio in cooperation with the Institute for democratic communication at Boston University has presented the First Amendment and the free people an examination of civil liberties and the media. In the 1970s. This program was recorded in the studios of WGBH Boston. And the program was made possible in part by a grant from the courier corporation of Lowell Massachusetts.