All Commentary
Sunday, October 1, 1995

The Internet: New Technology, Old Law

We Shouldn't Let Radio Broadcasting Standards Apply to the Internet

Dr. Goodman and Dr. Gring are Assistant Professors of Communication at Mississippi State University.

An open, public debate of issues has been a framework for American government since the Pilgrims wrote the Mayflower Compact on the second day they reached North American soil. In the twentieth century, the U.S. Supreme Court identified this “marketplace of ideas” as the cornerstone of American democracy (Brandenburg v. Ohio, 1969; Abrams v. United States, 1919).

Unfortunately, the evolution of mass media in America in the last 70 years has led to the formulation of a system which controls or limits, under the guise of “public interest,” the voices heard in public debate.

The American public has found its own voice on the internet. In fact, the internet has become the most fertile ground in history for the marketplace of ideas. The internet is a worldwide venue for discussion of ideas on a plethora of topics and a variety of voices. Anyone can contribute an idea, have it debated, argued, and challenged.

The United States is too large for a town hall meeting. Television can reach the mass audience, but then the networks decide whom and what we hear. On the other hand, the internet allows people to broadcast their ideas to a mass audience to be heard and discussed or ignored and forgotten because of a lack of interest.

Yet today Congress is in the process of writing legislation that may again limit the voices on the internet to a select few. To understand the situation in the 1990s, we need to go back to the 1920s and the early days of radio.

Originally radio broadcasting was an open marketplace. By sending a postcard to the Secretary of Commerce, Herbert Hoover, anyone could build a radio transmitter and talk over the airwaves to anyone else who had a radio set turned on. This was consistent with the traditions of the marketplace. Radio turned the town hall meeting into a coast-to-coast discussion group.

One indication of the power of this new medium to influence people to change public policy came toward the end of World War I. President Woodrow Wilson used a 200,000-watt transmitter in New Brunswick, New Jersey, to directly appeal to the German people to accept his Fourteen Points as a basis for a peace treaty. (See the account by media historian Erik Barnouw in A Tower in Babel.) The German people dumped the Kaiser and the new democracy asked for an armistice.

David Sarnoff envisioned a different future for AM radio. Sarnoff, president of the Radio Corporation of America (RCA) and founder of the National Broadcasting Corporation (NBC), thought of radio as a medium for entertainment and entertainment as a justification for advertising.

Amateur voices literally interfered with the ability of national broadcasters to bring music, the soaps, and advertising to American homes. Anyone broadcasting could change frequency, power, and hours of broadcasting, making it impossible to create a coherent radio listening schedule at a set location on the dial.

By 1927, Congress was writing legislation to sort out the radio signals and used the opportunity to shutdown the cacophony of voices being broadcast. To do so, the First Amendment had to be redefined by a group interested in increasing governmental regulation of American society.

The Progressives in Action

Progressive political reformers controlled Congress in 1927. Progressivism led to many changes in American democracy between 1880 and 1930, including direct election of the U.S. Senate, the right to recall elected officials and to place items on the voting ballot through initiative petition, and the right to change government policy through a referendum.

The Progressives sought to bring a moral tone into all branches of government by having college-educated “experts” make decisions. If experts made decisions through federal regulation, then neither the supposedly dangerous monopolistic practices of the corporate trusts nor the socialistic politics of the impoverished urban immigrants could control the American political, economic, or social systems. The values of middle-class America, the Progressives argued, would be protected by the “disinterested public servant.”

This is the philosophy of government the Progressives imposed on the radio debate in 1926. In writing the Radio Act of 1927, Congress put almost unchecked power—judicial, executive, legislative—in the hands of a public board, the Federal Radio Commission. In the language of the law, Congress told the FRC to operate radio broadcasting in “the public interest, convenience, and necessity.” These words were never defined specifically in the law, but the Congressional debate helps explain what was intended.

In order to create order out of the chaos of the airwaves, Congress redefined freedom of speech from having the right to speak to having the right to listen. Scrapping the traditions of the First Amendment meant that a handful of voices would dominate the airwaves to the detriment of the Republic. To prevent a monopoly of voices, Congress told the FRC to apply the public-interest standard to radio.

The Fairness Doctrine

Broadcast licensees had no right to express their views on radio unless all sides of the issue were granted equal rights to the airwaves. The effect of the Fairness Doctrine was to limit public discussion of issues on the radio since broadcasters would potentially have to give away valuable air time to anyone wishing to speak.

Congress also mandated that broadcast licenses should go to the applicants who would best serve the “public interest, convenience, and necessity.” In seeking a license, the applicants had to describe their programming to the FRC. Station managers were ordered to keep a log of programming to show that they were operating in the public interest. Licenses could be revoked or renewal denied if the FRC decided that the applicant had not followed the programming described in the license application.

In effect, the FRC could apply the “public-interest” standard to limit the marketplace of ideas to viewpoints which coincided with its mainstream views of what served the public interest. Since no broadcasters knew how the public-interest standard was going to apply in their situation, the safe course was to remain in the mainstream.

Congress made minor changes in the Radio Act in writing the Communications Act of 1934. Television and telephone, as well as radio, came under the authority of the Federal Communications Commission, which replaced the FRC. Otherwise, the new act was copied verbatim from the Radio Act, including “public interest, convenience, and necessity.” American broadcasting is still regulated under the Communications Act of 1934.

Congress is in the process of trying to replace the 1934 law with legislation that would encompass the new technologies, such as the internet and satellite broadcasting. The public-interest standard remains the cornerstone in the new legislation Congress has considered thus far.

If applied to the internet, a public-interest standard would be an invitation for big government advocates to control the type of information that flows on the internet. Instead of being a marketplace of ideas, the internet could become a banal forum as computer servers become reluctant to open debates on controversial subjects out of fear of being closed or fined. Like radio and later television broadcasters, the internet could be a place where only the uncontroversial is attempted and deemed acceptable.

Does that mean that everything on the internet should be unregulated? Will not pornography, money scams, hate groups, and fraudulent advertisers proliferate? Should the federal government gain unlimited power to regulate this contemporary marketplace of ideas?

Many abuses can be controlled by users and computer service providers. Users can put pressure on server providers to make moral decisions rather than letting government decide what is moral. The marketplace can insist that offensive materials be removed. In essence, the marketplace is self-regulating. Just read the e-mail that follows when someone violates netiquette.

Computer services are also self-regulating. Many university computer servers already restrict access to materials deemed inappropriate. Commercial servers select which services their subscribers have access to. When necessary, existing laws have been enforced, particularly on pornography, pedophilia, copyright violations, and fraud.

A general regulation of the marketplace of ideas by applying “public interest, convenience, and necessity” to the internet will lead to federal intervention in and potential infringement on free speech.