The First Amendment is generally understood as one of the most important of our Constitutional rights, and easily understood as a right secured to individuals. But most people don’t understand how the First Amendment has played a key role in determining telecommunications policy; and often don’t think of it as being applicable when it comes to individuals working together through institutions or organizations like a corporation.
However, across a broad range of telecom policy issues – from net neutrality, to commercial speech, to merger & acquisition activity, and others – you’ll find advocates for all sides brandishing First Amendment arguments in support of their cause.
For instance, cable operators and programmers, along with newspapers, broadcasters and other media, have consistently – and mostly successfully – maintained that the First Amendment protects them from government regulation that interferes with their ability to provide content to consumers.
For the cable industry specifically, it is important to recall that cable systems do not use the public airwaves, like television broadcasters, and are not a public utility, like telephone companies. Instead, an incredible distribution infrastructure was created with private risk capital that extends from traditional video to broadband, and it now offers a platform for myriad voices, managed by those who invested the money to create it.
In our view, this is a 21st century version of the Jeffersonian ideal of a free, diverse, and robust media.
Some policymakers and policy advocates argue instead that the First Amendment primarily protects the interests of citizens and consumers and authorizes regulation to guarantee speakers’ and programmers’ access to the media and to prevent the media from restricting such access.
On its face, the language of the First Amendment seems to support the media’s side of this argument. It says that “Congress shall make no law … abridging the freedom of speech, or of the press,” and neither authorizes nor protects the enactment of laws or regulations embodying a “right of access” to the media.
But this doesn’t mean that the First Amendment promotes the interests of the media over the interests of consumers and the public. As the Supreme Court has repeatedly made clear, the First Amendment embodies a shared interest of citizens and the media in preventing the government from interfering with the marketplace of speech.
The Court has explained, for example, that a “Government-enforced right of access inescapably ‘dampens the vigor and limits the variety of public debate.’” [Miami Herald Pub. Co. v. Tornillo] And it has soundly rejected the view…
…that every potential speaker is ‘the best judge’ of what the listening public ought to hear or indeed the best judge of the merits of his or her views. All journalistic tradition and experience is to the contrary. For better or worse, editing is what editors are for; and editing is selection and choice of material. [Columbia Broadcasting System, Inc. v. Democratic Nat'l Committee]
In coming days in this space, I will argue in this series that this legacy of the First Amendment has laid the foundation for the modern cable industry, and that understanding why and why it is important is critical to getting some of today’s issues right. I hope you’ll join in the discussion.