Technologies of Freedom: On Free Speech in an Electronic Age

Most major speeches, seminars, and symposia considering the future of government and public policy underscore that rapidly changing technology is reshaping the environment, the purposes, and the tools of social action. But only rarely is clear understanding of technological changes combined with thorough knowledge of the related policy and management dynamics of government. De Sola Pool achieves that combination in Technologies of Freedom, showing how the evolving technologies of publishing, communications, and information exchange undermine traditional premises on which government regulation of monopoly and protection of First Amendment freedoms of expression have been based. The tendency of the courts, the FCC, and government administrators at all levels to approach problems of communications within a framework of outmoded precedents and fixed ideas poses, according to de Sola Pool, a real threat to open, pluralistic and free expression essential to democracy. Government policy has been rooted in the distinction between common carriers of communication (telephone companies and the postal service) with little or no impact on the content of the messages carried, and generators of messages that both produce and distribute ideas and information (print media publishers and radio and television broadcasters). The former are considered monopolies to be regulated; the latter are considered subject to protections of the First Amendment, with special shields around the print media. From the early days of radio, broadcasters were licensed on the theory that available frequencies were scarce (spectrum shortage). The result in broadcasting is uneasy compromise: a system in which political officials meddle, though with reluctance, in the activities of individual stations, and do in fact decide what type of broadcasting the American public wants and shall receive (p. 140). But one fact that the courts and the regulators have not caught up with is that is no longer a scarce resource. The modes that are available for electronic communication have expanded in several ways, including use of new frequencies, disks and tapes, coaxial cables and optical fibers, and satellite broadcasting directly to homes. The fundamental decentralizing effects of these developments are being offset, however, by the regulatory system reflecting vested interests of broadcasters and franchise holders who do not want more competition. For example, broadcasters successfully opposed a proposal before the in 1980 to increase the number of radio stations by reducing bandwidth. Policy issues relating to cable communications are clearly set forth in Chapter 7. Initial approaches to cable television assumed that it was a common carrier, a local monopoly to be regulated. The increasing production of program content by cable companies eliminates the distinction between broadcaster and common carrier. De Sola Pool argues cogently that the FCC has no authority whatever to regulate what may be carried on cable systems and cannot have such authority under the Constitution.... There is nothing about spectrum technology that today mandates bureaucratic control of what is transmitted by cable. There need be no scarcity of capacity or access (p. 166). It is now technically possible to provide unlimited broadcasting to buildings through cable, reserving the airwaves for uses unsuitable for linkage by cable-communications with remote, low density settlements and moving vehicles, radio astronomy and radar, for example. the next decade, telephone systems could provide competing methods for delivering broadband services through integrated digital using optical fibers. The court ordered break-up of AT&T may slow this development. the meantime, the danger is that the market in these ideas will be narrowed by cable franchise holders and regulation. The existing structure of licenses is not being adapted to these possibilities, and both regulation and local government franchising policies have been inappropriate and inconsistent. The printed word has retained its special status under the First Amendment: freedom from licensing, from prior restraint, from taxation and from regulation. Whether this will remain true when electronic publishing dominates the field is a serious question. The American Newspaper Publishers Association lobbied, first into a Senate bill and then into the federal court consent decree, a provision forbidding AT&T from entering into media businesses (for example, from providing electronic yellow pages and classified ads) for seven years after the corporate breakup. In the name of pluralism, the press persuaded the government to designate who may and may not publish (p. 208). De Sola Pool describes this as an ominous infringement of the First Amendment. The policy and legal debates surrounding the case clearly demonstrate confusion about the basic characteristics of expression, whether conveyed by print or by digital electronics. The development of computer and telephone line networks and electronic publishing, like the developments in broadcasting and cable transmission, are fundamentally decentralizing, making expression and communications more competitive and more plural, despite tendencies for cor-