TV-gazing the other week at France overwhelming Brazil in the World Soccer Cup final, I heard Budweiser tell millions that, “beer is about friendship, relationships.” Knowing that kids were watching, I might have responded that beer is about drinking–and “Bud” ads shouldn’t be making such fantastical claims.
I heard Canon assert that its copiers are so good that its “only competition is reality.” Reality, I would have replied, has been bent wholly out of shape in an electronic universe structured for profit, not for truth. But, no critic can get access to the “public” air to say so.
I might have had a chance before 1987. But the opportunity was foreclosed that year when a federal bench permitted the Federal Communications Commission to abolish the “fairness doctrine” that required stations to give airtime on the public air to public voices on matters of public importance. In one of the most abysmal Orwellian spins of our time, the Reaganized FCC argued that the requirement violated the free-speech rights of broadcasting stations!
Whose 1st Amendment is it anyhow? This seminal right, conceived by James Madison as the core freedom of democratic citizens, has been turned into legal cover for liars. It was written to protect individuals from the gag of tyrannical government. The Founders could not anticipate that content of the primary “speaker’s platform” would someday be altered to further–without challenge–the interests of aggregations of assets called corporations.
One key step in the transformation was a 1976 Supreme Court decision equating the speech of the marketplace with the political and editorial speech of individuals. Justice Harry Blackmun wrote for the majority that “the free flow of commercial information is indispensable,” not only to the public interest, but “to the proper allocation of resources in a free enterprise system.” Are the courts aware of how far beyond product information commercial speech has gone? That decision had to do with the test of a Virginia law banning the advertising of retail prices for pharmaceutical drugs. But it has been expanded to provide 1st Amendment cover for such nonsense as those Canon and Budweiser ads. As the power of corporate speech grows, the free-speech rights of the individual has been eroded away on the electronic media. We are afforded neither access nor adequate choice in this excellence-suppressed multichannel universe.
In 1942, the Supreme Court decided that commercial speech was not entitled to constitutional protection. Since then, Blackmunites have swallowed the flawed line that laissez-faire economics equals freedom. As a result, electronic tradesmen freely use the 1st Amendment to defend the Distilled Spirits Council’s abolition of its voluntary 40-year ban against hard liquor advertising on television, as well as their right to pollute the minds of children with prurient and violent tele-garbage.
It’s the 1st Amendment that television stations invoke when viewers complain that the local TV news on which they depend, with its bloody leads, eerie musical backgrounds and short-skirted anchorwomen, devalues the currency of sound information so essential to good citizenship and governance. When, on these grounds, a Denver citizens’ group challenged FCC license renewals of four local TV stations their attorneys responded that any “content censorship” by the federal government “sharply contravenes established 1st Amendment principles.”
We must force the courts to re-examine their pro-corporate interpretations of those “principles.” The classical 1st Amendment was conceived at at time when kings and tyrants cut off the ears and heads of dissenting citizens and editors. Now it’s an oligarchy of corporations that censor content and convert it into commercial speech on their telemedia, choking off the flow of vital intelligence to the head. It’s commercial criteria that force local news rooms to lead with “Fireman and wife in murder-suicide” and “Arrests made at crack house” and to air more political campaign commercials than news reports about the campaigns.
There is persuasive legal precedent for the reversal of virtually absolute protection for commercial speech: The Securities Act of 1933 gives the Securities and Exchange Commission power to protect investors from deceptive practices by regulating the form and content of securities offerings and solicitations. The Federal Trade Commission regulates advertising it deems deceptive. The Food and Drug Administration regulates misrepresentation in pharmaceutical ads and product labeling. And–in 1971, a federal appeals court upheld the congressional ban barring cigarette advertising from radio and television, affirming the right of people’s government to regulate broadcast messages endangering the national health.
Beware of those conservative warnings against “big government” with its “nanny-knows-best thinking,” as a columnist wrote on these pages. We customarily accept government oversight of nuclear power, airline and railroad safety, and air quality. Why is pro-public FCC regulation of corporate dominion over the public mind more to be feared than self-serving editorial edicts by Fox’s Murdoch, TCI’s Malone, GE/NBC’s Welch or Disney’s Eisner? They are not accountable to the democratic process. The FCC is. And so, indirectly, is the federal bench.
In the benchmark Red Lion decision in 1969, Associate Justice Byron White wrote for the majority that, “it is the right of the viewing and listening public, and not the right of the broadcaster, which is paramount.” This nation was founded to safeguard the rights of citizens, not corporations. Three decades later, it is time to reassert the fundamental truth of Red Lion.
