Big brother is programming

Harold Furchtgott-Roth

\'\'Is the new TV show good? It is an entertaining question when asked
around the kitchen table. It is a financial question when asked in a
Hollywood studio or Madison Avenue office. But it is a scary question
when asked by regulators in Washington.

Three recent events have made this question commonplace in Washington:
the revelation that the White House drug office had reviewed network
television programs to assess their propriety; a now aborted effort by
the FCC to evaluate the educational quality of religious programming;
and an inquiry by the Federal Communications Commission that may require
free political advertising.

A czarist White House: Until last month, few knew the White House was
clandestinely reviewing television programs with the cooperation of TV
networks. If a show contained a sufficiently anti-drug message, the
White House offered to reduce the network\'s obligation to provide free
time for anti-drug public service announcements. Awarding government
subsidies for certain kinds of scripts and programming undercuts the
very core of broadcasters\' independence and blurs the line between
programming and propaganda. It also reflects a governmental arrogance
about what is the best type of programming for viewers --- and an effort
to hide the government\'s role.

The administration\'s reaction to the unmasking of this hidden process
has been brazen pride, stressing the importance and success of the
anti-drug message. No doubt, some in the administration would have us
believe the ends do justify the means and that constitutional rights to
freedom of speech and other activities can be eroded in the name of an
anti-drug campaign or other popular policy.

A secular FCC: Last December, the FCC announced a decision that reveals
a similar willingness to cast government in the role of programmer in an
effort to advance good messages. In an effort to provide guidance to
noncommercial television licensees, the FCC ruled that at least 50
percent of an educational station\'s programming must be educational,
cultural or instructional and found that many types of religious
programming would not count.

For example, the FCC found that programming devoted to religious
exhortation, proselytizing or statements of personally held religious
views and beliefs would not qualify as educational. On the other hand,
shows that explore religion from a literary or historical perspective
did qualify. The FCC ultimately rescinded its guidance, but did not
specifically abandon the notion that government may judge speech as good
or bad.

The problem with government advancement of good speech is that by
necessity it must define good and reject bad speech. Besides the
inherently problematic nature of such an evaluation, the process almost
inevitably leaves licensees with no choice but to seek government
approval for their programming. Perhaps educational licensees would send
in their shows in advance to assess whether they are overly focused on
personal religious beliefs or whether the half-hour devoted to Torah
instruction is mere exhortation.

Free speech only for politicians: Similarly misguided is a recent FCC
proceeding to assess whether government should require broadcasters to
offer free airtime to candidates. According to its advocates, the
program is designed to improve political discourse and better educate
the voting public. Besides the dubious constitutionality of such a
program, it too creates a dangerous opportunity for government to
control and approve certain media messages --- and could well lead to
replication of the invidious approach of the White House Drug Control
Office. For example, would the guest appearances by Hillary Clinton on
the \"Late Show\" with David Letterman or by Sen. John McCain, Arizona
Republican, on the \"Tonight Show\" be screened by the FCC in order to
award credit under such a free air time obligation? Would the government
end up judging which candidates could participate, or which broadcast
programs actually improve the nation\'s political discourse?

The dangerous aspect of these policies is their ability to grow from
quite innocent roots. No one favors drug use by children, or is against
educational programming, or is opposed to more rigorous political
debate. Yet these seeds grow to form the basis of government actions
that can advance government-selected messages over others. We should be
mindful that the First Amendment is a prohibition on the government
abridgement of speech; it is not an invitation for government-reviewed
speech or government-sanctioned speech or government-subsidized speech.

Government operates best when it allows all messengers to offer their
views, allowing the American people to decide which take root and which
wither away. To the extent that government must speak at all, we are all
better served by clear identification of the government role. When
government and private speech become intertwined, the First Amendment is
at risk.

Harold Furchtgott-Roth is a member of the Federal Communications
Commission.