Remarks

By

MICHAEL K. POWELL

## Commissioner

## Federal Communications Commission

Before the

Media Institute

Acceptance Speech for the Freedom of Speech Award

Washington, D.C.

# October 20, 1999

(As Prepared for Delivery)

Thank you, Judge Edwards for your generous remarks. You are, and always
will be, my friend. And to Decker Anstrom, with whom I share the
spotlight this evening, I congratulate you on the American Horizon Award
that the Media Institute Board has so rightly bestowed upon you. In my
two years at the Federal Communications Commission, there have been few
advocates who have fought with such measured passion and intellectual
rigor on behalf of their respective industries. Decker Anstrom is one
such advocate, and he ably served the cable television industry during
his tenure at the National Cable Television Association. You are sorely
missed in Washington.

Ladies and gentlemen, Dick Wiley, and Patrick Maines, it my distinct
pleasure to be here with you tonight and to receive the Media
Institute\'s Freedom of Speech Award. My parents taught me never to work
for awards, but instead only to accept them in recognition of a job well
done. I am sincerely honored and humbled by this recognition and only
hope my work lives up to this tribute. For this, I profoundly thank the
Media Institute.

Since they are with us tonight, let me begin by thanking my mother and
father, Colin and Alma Powell, who are the individuals most responsible
for who I am. I can assure you that as a child I often tried to assert
something akin to a First Amendment right in their house, but with
little success. Perhaps this is where I gained my interest in the
subject. I also want to thank my wonderful wife Jane, who is probably
most responsible for keeping me balanced, and to whom the First
Amendment does not run either. And, special thanks to my dear friend and
mentor Judge Harry Edwards, in whose hushed chambers there were no
individual rights at all. Nonetheless, it was the most prized
professional experience of my life.

With that formative experience, it is amazing that I am being recognized
for my faith in the preeminent and most cherished Constitutional
Amendment. In fact, it is ironic. You see, in law school I deeply
disliked the First Amendment. Its application seemed random and fuzzy.
To my mind, it seemed foolishly to sanction reprehensible behavior---KKK
demonstrations, Nazi marches, hate speech, violent and profane public
displays. I grew up respecting government and could not comprehend how
these behaviors and expressions could be valued so highly and the State
trusted so little.

In my current position, however, I have gained a deep and profound
respect for the wisdom of having an unwavering principle that stands at
the summit of the Constitution, and holds: \"Government shall make no
law abridging the freedom of speech.\"

When Government compromises this commandment, the Governor enjoys
unbridled discretion to favor, and at times direct, the content of the
voices we hear and the images we see. Undoubtedly, the Governor that
takes such liberty with the Constitution believes he does so out of
benevolence, the greater good, or the \"public interest.\" But, this is
not the covenant the people made in surrendering limited authority to
the State. Benevolent or not, we did not sign away to a Philosopher-King
the responsibility to determine for us, like a caring parent, what
messages we should and should not hear.

Our forefathers understood that Governors have an innate instinct to
misuse power for their own self-interest, and that the power to abridge
speech and information is the most potent instrument of all. That
self-interest may be direct, like lavishly spending public taxes on
personal needs, or subtler like choosing messages that promote the
viewpoint of a favored constituency or to curry favor for political
gain. Either way, the temptation to do so is too great, perhaps
irresistible, and thus the Governor should not imbibe the wine of
content control without deeply compelling justifications.

Perhaps it is unremarkable that the Federal Communications Commission
has always found itself embroiled in the question of content, having
authority over broadcasting and other mass-market megaphones. Though
there is only one Number 1 amendment, we oddly apply it in two different
ways. We have deemed broadcasters uniquely unworthy of complete First
Amendment protection, allowing greater intrusion on broadcast content.
Yet, equally powerful communications media such as newspapers and
magazines, cable television, satellite television, and the Internet, all
enjoy the full shield of the First Amendment.

When one looks at the tortured rationale for finding broadcasting
uniquely undeserving of First Amendment protection, one gains new
respect for the founding father\'s fears. The reasoning for bending the
Amendment is as gnarled and twisted as a foreboding tree on Halloween.
Consider the following:

-   In the 1920s, the government seized the broadcasting spectrum
    declaring it a public resource to be used only with its permission.

```{=html}
<!-- -->
```
-   By controlling its distribution, government ensured that spectrum
    was scarce, and by giving it away free, as any economist will tell
    you, we ensured that demand for it would always exceed supply.

```{=html}
<!-- -->
```
-   Since more people want the spectrum than is available, there must be
    some mechanism, of course, for choosing among competing applicants.
    So, historically, the government (often only a handful unelected
    Commissioners) chose the applicant that it deemed most worthy. The
    one, who pledged to display and broadcast the messages we preferred,
    won the grant to do so.

No matter that this content-based practice could tread on one\'s First
Amendment rights. Scarcity of a public resource was deemed a sufficient
explanation to bend the most venerable pillar of law.

The slight-of-hand here is that scarcity is not unique to broadcasting.
Indeed, scarcity is the definition of any economic good. The basic
economics of supply and demand distribute scarce goods to their highest
and best uses, whether they are oil, coal, steel, or lumber. As the D.C.
Circuit noted in *TRAC v. FCC*, \"There is nothing uniquely scarce about
the broadcast spectrum,\" noting that scarcity is a universal fact
pertaining to all economic goods, and thus cannot really explain the
different treatment afforded to broadcasters. *Telecommunications
Research and Action Center v. FCC*, 801 F.2d 501 (D.C. Cir. 1986)

But, more troubling, is the fact that if scarcity was ever a defensible
explanation it is certainly farcical in the modern digital era, which is
marked by abundance. Choose your measure: growth in the number of
networks; the number of radio and TV stations; or the arrival of new
media, such as cable (which openly boasts of the 500 channel world),
Direct Broadcast Satellite (which actually delivers it), and the
Internet (a bottomless well of information). Yet, under the law, every
one of these other media enjoys the full benefit of the First Amendment.
It is simply intellectually dishonest to say that the First Amendment
changes as you surf through the channels of your modern television set.

It is the inescapable reason that the scarcity fiction is maintained
that is constitutionally most disturbing. A professor I respect
described it bluntly, he said \"the belief---or at least the assertion
of a belief---in a scarcity theory exists because those who wish to
continue broadcast regulation believe that some theory of unique
scarcity must exist. Otherwise, broadcasters could not be controlled by
the government---or its perception of the \'public interest.\'\" This
willful denial of reality in order for government to retain the power to
control speech, unimpeded by the First Amendment, is, to my mind, a
subversion of the Constitution.

Lest I sound like an industry shill, let me add this. This state of
affairs is not all the Government\'s doing. The industry has regularly
traded its First Amendment rights to obtain favors from the government.
However, I submit, the Framers did not mint the First Amendment to serve
as currency. To offer it as such is to trade away one\'s moral right to
cry victim when the bargain is accepted.

Finally, all of this is not to say that we citizens should not be
outraged by violent, sexually explicit, or other offensive sights and
sounds. Or, that we have to necessarily endure a barrage of insulting,
shameless images in deference to the almighty advertising dollar. We are
the customers, it is our preferences that the media must ultimately
serve, and thus we must be willing as a society to exercise that power
to get what we want. We certainly should turn off, tune out, walk away,
and raise our voices when disturbed by what is peddled to us. But, we
should think twice before allowing the government the discretion to
filter information to us as they see fit, for the King always takes his
ransom.

Thank you so very much.