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Papers Information is Power When was the last time you read in a newspaper, or saw on television – even PBS – any of the following: • a labor roundtable? Information is power. That’s why law firms and big corporations pay huge sums of money for information librarians, reference materials, on-line databases, and on-call experts. Information is also the currency of democratic self-government. It is the basis for the analysis, opinions, evaluations, judgments, and decisions we make at the ballot box, and that our representatives then make on our behalf. There is, however, a problem here, a contradiction and fundamental disconnect between information as valuable commodity, and information as democratic currency. Given this contradiction, how can the First Amendment work? How can we intelligently and democratically govern ourselves without access to heterogeneous and unfiltered information? Information also needs a carrier – it’s been a long time since we passed information along by stories around the campfire. One hundred years ago, Oliver Wendell Holmes argued that the purpose of the First Amendment was to create “free trade in ideas,” and from this we have the metaphor of the marketplace of ideas. Today, this metaphor has evolved - we talk of an “information age,” a “knowledge economy,” a “digital revolution.” But does it matter, for First Amendment purposes, that information today gets to us primarily through broadcasting and the Internet? Can one-sided power in the broadcasting and communications markets lead to dysfunction in the “marketplace of ideas”? In this context, there are three issues I’d like to look at: (1) public television; (2) net neutrality; and (3) selected other issues related to ownership of information and the means of its transmission. But first I’d like to step back and see how another country addresses these problems. I approach this from the perspective of a lawyer interested in free speech law. Germany’s Approach I have looked at these problems through the lens of one country, Germany, and its solutions for one medium, broadcasting. Perhaps as a reaction against its catastrophic experience with Nazi fascism, the Germans – primarily the German Constitutional Court – have developed the concepts of broadcasting and information freedom as found in Germany’s post-war constitution, the Basic Law. The upshot of this development is a special public role for television and radio in Germany’s political life. The genius of the Court’s jurisprudence has been to craft a public broadcasting system that is neither state nor private, insulated from both political and marketplace pressures, a system that functions as a neutral carrier for a full range of fact and opinion. Neither German jurisprudence
nor German practice in this regard is unique: The closest U.S. law has come to the German approach is the Supreme Court’s formulation in Red Lion v. FCC, upholding the now-defunct Fairness Doctrine: “It is the right of the public to receive suitable access to social, political, aesthetic, moral and other ideas and experiences which is crucial here.” The Fairness Doctrine, which required broadcasters to cover matters of public importance and to air both sides of the issue, has now been declared unconstitutional by the very agency charged with its enforcement. The German Constitutional Court, by contrast, persists in its support for a diverse and at least partly non-commercial media landscape, founded on a legislative duty to insure public access to a broad range of information and opinion. In this country – to the extent we talk about this at all – there is a debate between those concerned about the failure of the mass media to provide a diverse and informative public forum, and those who reject any “statist” intervention in the marketplace and/or who view the marketplace as already sufficiently diversified source of opinion and fact. The German model has been discovered in the last twenty years by a small but growing number of American writers who echo the German jurisprudence in calling for new First Amendment thinking and structural reform to secure the rights of the listener as well as the speaker, i.e., a more diverse, non-commercial programming. Public broadcasting A comparison of our PBS and NPR with the German system indicates just how enfeebled our public broadcasting capability is. Substantially all Germans have access to at least three public television stations, an equal or higher number of public radio stations, as well as an assortment of national, foreign, and international private television and radio stations. The German Court has referred to this mix of public and private broadcasters as a “dual” broadcasting system. The prevalence of public broadcasting in Germany is founded on a public service notion of what television should be: “Broadcasting freedom serves the same purpose as the other guarantees of [free speech, press and information freedom, in German Basic Law at] Article 5 paragraph 1: it protects free individual and public opinion-building.” 73 BVerfGE at 152. This constitutionally protected communication process “informs in the largest possible breadth and completeness, and gives the individual as well as social groups the opportunity to influence such opinion-building.” Id. On this basis, the German Constitutional Court has directed the legislature to create structures in which the broadest dissemination of opinion and information is possible. While both German public and private broadcasters enjoy a freedom from state censorship similar to the rights provided by our First Amendment, they also have public service duties, chief among them the duty to cover and reflect a full and diverse spectrum of opinion. It is in the governance of the public television stations where the difference between the German and American approaches is most marked. Labor has a seat at the table. Whereas appointments to the board of directors of the United States’ Public Broadcasting System are made by the President and are, by all accounts, highly political, the German Court has ruled that public broadcasting governance must be insulated from state influence. To provide this insulation, the Germans have come up with the idea of “internal pluralism,” whereby “all socially relevant groups” are represented either directly or indirectly on the stations’ governing boards of directors -- religious organizations, labor and chamber of commerce organizations, political parties, arts and film societies, and social organizations from athletic clubs to disabled rights’ organizations. The organizations themselves then nominate their representatives, substantially expanding the political base from which these directors come. As to financing, the
German Constitutional Court has said that the legislature has an
obligation to make sure there is adequate funding for public broadcasting,
and has said that public broadcasting can only be independent if
it is not reliant on advertising revenues. Thus, the primary revenue
source for German public television financing comes from a user
fee that every purchaser of a television or radio must pay. A typical
fee for a radio and one television may amount to 12-15 Euros a month,
or $15-19. Broadcast fees are fairly typical in Europe and most
citizens do not complain. Some Germans have in fact called for an
increase in the fee so as to entirely eliminate advertising on the
public networks – some are already commercial-free, and others
have commercials only during a one or two hour window every day.
. Net neutrality Public broadcasting, even if the reforms suggested above occur, will always be tethered to the larger political power relationships. The Internet, however, presents a potentially radical departure from these power relationships, empowering the individual information recipient, cutting the marginal costs of communicating with large groups of people almost to zero, and creating the potential that the public commons, so under siege in the real world, might be reconstituted electronically . As Prof. Lessig put it: The architecture of the Internet, as it is right now, is perhaps the most important model of free speech since the founding. This model has implications far beyond e-mail and web pages. Two hundred years after the framers ratified the Constitution, the Net has taught us what the First Amendment means. The Internet as we know it, however, is in serious jeopardy due to the large telephone companies’ market power, and their ongoing campaign to extract a higher rate of return. The Internet is a network of networks, running in large part over wires in the ground owned by the large telephone carriers – what used to be called the “public switched telephone network” (PSTN). The switches have now been replaced by routers, but the wires are the same – in many cases paid for by utility ratepayers. The phone companies (“telcos”) want to liberate these wires from their regulated status, so as to erect new toll booths throughout the network. In legal terms, the telcos want to stop operating these wires as common carriers (status quo for the last 100 years), which means they no longer are willing to carry all traffic without discrimination as to content. The telcos have been fighting a below-the-radar campaign to take as many components of Internet transmission as possible (modems, long-haul lines, etc) out of the “common carrier” category and into the almost unregulated category of information service where the common carrier responsibilities no longer apply. In this way, the telcos can discriminate in favor of affiliated content, and the Internet could quickly become a giant shopping mall rather than a communication network. For instance, if AT&T were to feature Wal-Mart as an affiliated vendor, it could provide faster transmission of Internet packets going to and from Wal-Mart's website than it does to Target’s website, and certainly faster than the packets going to and from LaborTech’s website, or Media Alliance’s. To put this in language
that the German Constitutional Court might use, the question here
is whether, in the rather sparse language of our First Amendment,
there is a guarantee of access to a diverse spectrum of information
and opinion, as our Supreme Court suggested in the Red Lion case,
and – further – whether there is a duty on the part
of the legislature to safeguard that access. Or in simpler language,
and without reaching the constitutional issue, whether it is simply
good policy for the legislature to step in here and recreate some
of the features of the old common carrier system. (1) not block, interfere
with, discriminate against, impair, or degrade the ability of any
person to use a broadband service to access, use, send, post, receive,
or offer any lawful content, application, or service made available
via the Internet; (6) not install or utilize network features, functions, or capabilities that impede or hinder compliance with this section. I have quoted at length from the Snowe-Dorgan legislation because it enumerates the concerns about the telcos’ conduct, and is a litmus test for congressional support of a neutral and low-cost Internet. While Senator Boxer supports it, for instance, Senator Feinstein is still sitting on the fence. The Internet neutrality debate is not the first time that information freedom and common carrier issues have intersected. Cable television operators have argued for years that they were not common carriers, and thus any abridgment of their right to program all channels under their control (such as is the case with public, educational and governmental access channels, as well as leased access and “must carry” obligations) was a violation of the First Amendment. The first issue was decided in cable’s favor in the 1984 Cable Act which declared that cable television was not a common carrier, despite the fact that it runs under public streets and in easements specifically designated for public utilities. The second issue, the claim of the media owners that their ownership of the wires gives them First Amendment rights to control the content of those wires (often to the detriment of the First Amendment rights of listeners and viewers) has met with split decisions, with Congress legislating access channels in the 1984 Act and cases like Turner deciding that these sorts of access obligations are “content neutral” and therefore survive intermediate scrutiny, while other cases have nullified government regulation as an abridgement of the cable operator’s First Amendment rights. The attack on the public service obligations of telephone carriers is more recent. Approximately ten years ago, one economist predicted that the “doom of common carriage” was inevitable, but his was a values-neutral analysis of market and technological factors, without consideration of how free speech values could change that result. Although the net neutrality debate may ultimately be decided on a regulatory and perhaps even ratemaking basis, it has raised for the first time substantial questions about the application of First Amendment information freedom principles to the telephone system. Stated differently, technological convergence has led to a theoretical convergence of the concepts of free speech and common carrier. Television is moving to the Internet. Anyone who does not believe this should check out www.youtube.com. And thus to your phone system: AT&T recently succeeded in obtaining from the California Legislature a new law that will allow it to obtain state-wide video franchises, which means AT&T will be using at least portions of its telephone infrastructure, souped-up to broadband speed and capacity, to offer digital television (i.e., with “Internet protocol”). As the media converge, American lawmakers have either not seen the importance of a full spectrum of information and opinion, or they have trusted that the marketplace would deliver such a full spectrum (despite all historical evidence to the contrary). The most honest of the marketplace advocates have, at least, relied on “fast-track regulatory and antitrust laws … and predatory pricing principles” to police particularly egregious market malfunctions. The German jurisprudence, on the other hand, clearly judges the market, by its very nature, as unable to provide the heterogeneous information and opinion necessary for self-government.14 The Germans have, at least as to broadcasting, insisted on a proactive role for government to insure that the public has relatively unfiltered access to information. The Germans recognize that when it comes to information, we cannot rely on antitrust laws (which are often not enforced in Germany, less in this country – see Department of Justice response to ATT/SBC and ATT/Bell mergers), and that free speech principles trump even well-meaning economic regulation in this area: “market chances belong to the realm of economics, not of freedom of opinion.”13 The Snowe-Dorgan bill puts the emphasis, correctly, on information freedom. • copyright rules
– in the last generation copyright copyright protection has
been extended from the original 28 years in the Constitution to
the life of the creator plus 70 years. • The government itself is in possession of much information that it could provide to citizens, but often does not because of fears that it would be seen to compete with commercial interests which sell that information. Court decisions, for instance, are written by judges, i.e., public employees, and therefore belong to us, yet government seems incapable of providing these on the Internet in any user-friendly manner, leaving that field for Lexis/Nexis and its high-priced competitors. Legislators should be urged to affirmatively budget for proactive dissemination of government information at all levels. • Similarly, there should be no legal or constitutional impediment to cities and other government bodies building their own information distribution systems, be they Wi-Fi or fiber-optic, although such suggestions (including Ammiano’s unfortunately slugged fiber-in-the-sewer proposals) often provoke attempts in the legislature to outlaw such municipal initiaitives. • Ownership diversity.
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