Public Access to Media: History,
Status and Future
July 6, 2010
Preface and précis: This was the third of four appearances at four Japanese universities during Nicholas Johnson's June 30-July 8, 2010, speaking tour in the Kyoto-Osaka area. The audience on this occasion consisted of about 200 undergraduate media studies students of Professor Tsutomu Kanayama at Risumeikan University, Osaka, Japan. Johnson lectured in English; Professors Kanayama and Shinji Uozumi provided the translation into Japanese.
The lecture was designed to introduce undergraduates to the U.S. "public access movement," the concepts of rights of "entry" and "access" to mass media, why the Internet is not an adequate alternative, the regulatory role of both "East coast code" and "West coast code," the inadequacy of the mere language of the U.S. First Amendment and Japanese Article 21 to resolve disputes, thereby necessitating reference to the purposes and goals of "free speech," and the origins and evolution of "public access" cable channels in the U.S. (See "Handout" for students on that occasion, below; made available to them in both English and Japanese.)
Sample References: Shinji Uozumi,
The Short Life of Japanese FCC: Social and Legal Origins of the Radio Regulatory
Commission (1995) (available in both English and Japanese editions)
Nicholas Johnson (available online from Web site, and as chapters in Your Second Priority (2008)): “An Autonomous Media;” “Jefferson on the Internet;” “Sailing Shark-Infested Waters: A Map for Media Literacy;” “Forty Years of Wandering in the Wasteland;” “With Due Regard for the Opinions of Others;” “The Media Barons and the Public Interest: An FCC Commissioner’s Warning;” “Media as Politics: What’s a Voter to Do?”, the book Nicholas Johnson, How to Talk Back to Your Television Set (English: Little, Brown; Bantam; Japanese: Diamond; 1970), and “A Day in the Life: The Federal Communications Commission,” Yale Law Journal, 82 Yale L.J. 1575 (1973).
Thank you for the honor of your invitation to be with you today, as we share some ideas about your participation in mass media – what we in the United States refer to as “the public access movement.”
You are the future of Japan. And since Japan is one of the world’s greatest nations, that means you are going to be global leaders as well. So what I would like for us to think about today is a major part of the power you will need in order to exercise that global leadership – your legal rights to both access to, and entry into, the mass media.
How many of you have a Facebook page? A Web page? A blog? How many have put a video online on YouTube? Put an entry into a Wikipedia encyclopedia?
When you or I do something like that, we are exercising our right of entry into the Internet, entering our own content for others to see. Those who see what we have put up on the Internet are exercising their legal right of access to the Internet.
Both of these rights can change – different countries have different rules, and they change those rules from time to time.
But many of the rules are made, not by governments, but by corporations.
An American, Larry Lessig, refers to what he calls governance by “East Coast code” and “West Coast code.” The East Coast of the United States is where Washington, D.C., is located. The West Coast, California, is where Silicon Valley is located, and many of those who write computer code live there. The Congress in Washington, our Diet, publishes its laws in books called “the United States Code.” So by “East Coast code” Lessig means the federal laws governing how the Internet works. But the computer code that enables the Internet and its Websites to work also creates rules that govern its operation. And since much of that computer code comes from the West Coast of the United States he calls that “West Coast code.”
Either East or West Coast code controls everything you and I do on the Internet. And as you may have noticed, many corporations have a desire to use those codes to restrict what we can do, or to charge us money to do what we used to do for free.
A couple weeks ago, a U.S. federal judge ruled that Google, the company that owns YouTube, was not violating the copyright law, because it promptly removes copyrighted uploads to YouTube when told about them. That is an example of a contest between the West Coast code that makes YouTube possible, and the East Coast code that could have closed it down.
However, in spite of all the Internet’s restrictions and limitations, it really is a miracle. With it, I can get access to millions of times more information than what my hometown libraries contain – and my law school’s library ranks number one in the United States.
Not only can I get access to billions of Web sites, I can also get entry to the Internet. I can publish virtually anything I want to on my blog, or in comments about a newspaper’s story in its online edition.
Which brings us back to the mass media. Because even though the Internet gives you and me entry to post whatever text, photos or videos we wish, the number of people who will see our creative work is but a tiny, tiny fraction of the number who visit the Web sites of the major newspapers and television networks.
YouTube is a phenomenon. There are 24 hours of video uploaded every minute; two billion views every day; 200 million views of Lady Gaga’s “Bad Romance” video. It’s international. Localized in 23 countries and 24 languages, 70 percent of YouTube’s traffic comes from outside the United States. The ten most popular channels each have a million or more subscribers. Moreover, it did not even exist five years ago.
It sounds impressive. But with that amount of content, what are the odds that a video you produce and upload will be watched by more than a few of your friends?
It is true that the U.S. major TV broadcast networks do not have the share of TV homes they once did. In the early days when there were only three of them, and no cable channels, their share was probably in the 80-to-90 percent range. By 25 years ago, it had declined to roughly 50 percent. It is now closer to 25 percent – primarily because of the competition from cable channels. Nevertheless, with less than a half dozen TV broadcast networks, each still has an enormous share of the viewing audience – with all the economic and political power that represents.
On the Internet, of the top
five sources bloggers go to for news, none is a blog. The five are, in
order, the New York Times, the Guardian, the Wall Street Journal, the Washington
Post, and the Cable News Network, CNN. The Times alone has
more than 17 million readers a month. That is a few more than my
blog has each month!
So before we get too excited about the wonders of the Internet, and its democratizing of the media, with rights of entry and access for all, let us focus a bit on the remaining power of the mainstream mass media.
One of the principal features that distinguish the mass media from the Internet is that it is, for the most part, a one-way communications medium. The major media corporations have the exclusive right to produce, pay for, select and distribute to the masses the content they choose to distribute – and to censor, to keep from distribution, the content with which they disagree.
Forty years ago, I wrote a book with the title, How to Talk Back to Your Television Set. It was a humorous title, because everyone knew one could not talk back to the executives of the television networks. TV viewers could only watch what those executives permitted them to see.
Now many major media Websites permit some audience comment. However, the audience exposure those comments get is miniscule compared with its exposure to the media’s stories. And the ultimate control over which comments are permitted, and which will be taken down, still rest solely with the media owners.
It is inappropriate for an American to suggest what he or she thinks Japan should do about anything, especially the media. In the first place, our countries and cultures are different. How could I possibly know what is best for you? In the second place, you have often done things better than the United States.
However, there are many things our nations do have in common. One of the most important is our shared commitment to freedom of speech and press.
The way your Constitution expresses it is in Article 21: “Freedom of . . . speech, press and all other forms of expression are guaranteed.”
The original U.S. Constitution left out free speech. However, an amendment came quickly. The very First Amendment to the U.S. Constitution provides, “Congress shall make no law . . . abridging the freedom of speech, or of the press . . ..”
It is for you to interpret your own Constitution, and its commitments to freedom of speech. But I will share with you some of my perceptions regarding the purposes and consequences of the U.S. Constitution’s protection of freedom of speech and press.
The specific language of the U.S. Constitution is of limited help in thinking about the wisdom of media regulation. As just mentioned, it says, simply, “Congress shall make no law . . . abridging the freedom of speech, or of the press . . ..” What what do words like “Congress,” “no law,” “abridging,” “speech” and “press” mean? Courts interpret the word “Congress” to mean all units of government from municipal to federal; some laws abridging freedom of speech are found to be constitutional notwithstanding the “no law” prohibition; some regulations of speech may be “enhancing” rather than “abridging” free speech; and the definitions of both “speech” and “press” have varied from case to case.
If a municipality owns an auditorium where speakers appear, courts may designate it a “public forum.” As such, the city’s officials violate the First Amendment if they permit some speakers, and deny access to others, based on the content of their speech.
Analogies to the “public forum” doctrine raise some especially difficult questions when applied to the mass media. The First Amendment only protects citizens from government. Government can neither silence citizens nor force them to speak when they wish to remain silent. On the other hand, private corporations can fire, or otherwise punish, employees for what they say. They can usually prevent the public from speaking, or handing out leaflets, on their property.
However, are there circumstances in which it makes sense to treat a private corporation as similar to a “public forum”?
Consider a company, franchised by a city government to operate that city’s only cable television system. It offers hundreds of channels of programming. Maybe that government franchise makes the cable company a kind of government entity, maybe not. Regardless, should the cable company have the same free speech rights over each of those channels that a citizen would have over the contents of a leaflet they prepared, or what they say through a megaphone at a rally? Should the cable company have the legal right to permit some citizens to speak over its channels, while censoring others, based on what they say?
Or do the citizens have the equivalent of free speech rights to use the company’s channels to speak, regardless of whether the cable company executives agree with them or not?
After all, even though the First Amendment language only limits government action, its principles are equally relevant to media monopolies or other institutions that stifle free speech.
The FCC’s “Fairness Doctrine” (now repealed) required that stations cover “controversial issues of public importance,” and in doing so provide a range of views. Broadcasters thought the doctrine violated their First Amendment rights to exclusive control of their programs. The U.S. Supreme Court unanimously disagreed. The Court found the First Amendment rights of the audience (both those who might provide, and those who would receive, views contrary to those of the broadcasters) to outweigh the free speech rights of the broadcasters.
In short, the language of the First Amendment is of greatest help when balancing the First Amendment rights of one party against non-First Amendment needs, or rights, of the government or some other party. For example, when the U.S. government drafted young men into the military it required them to carry a “draft card.” When a young man who opposed the Viet Nam war wanted to burn his draft card in public, he claimed it was a form of speech. The government wanted to punish him for doing this. The Court’s analysis in its opinion balanced the young man’s First Amendment rights against the government’s rights to conduct war. (In that case, it concluded the latter outweighed the former.)
However, the First Amendment’s language is of little to no use when both parties rest their case on their First Amendment rights.
The cable company example would be such a case.
The company believes each channel is like its megaphone or leaflet. It believes it should be able to fill each of those channels with whatever it wants. It thinks it has the right to censor citizens’ viewpoints with which it disagrees. They say that to require them to carry others’ views is as if governments made citizens say things they did not believe.
On the other hand, the citizen believes that the cable company’s channels are like a public forum, a resource for the entire community. If the cable company will not let him use one of its channels, he says, it is violating his First Amendment rights.
After all, the Constitution prohibits laws “abridging” the freedom of speech – not, laws “affecting” the freedom of speech. Is it possible to think of a law requiring cable companies to make some channels available to the public as a law that enhances freedom of speech within the community – and is, thus, constitutional – rather than as a law that abridges the free speech rights of the cable company and its owners?
Because there is nothing in the few words of the First Amendment that answers the question, we must turn to the reasons for, consequences of, and values underlying, the First Amendment. Which resolution of the cable company and citizen conflict, which policy, will best serve the most of those purposes?
Arguments affirming the value of freedom of speech and press fall into five categories:
• their role in meeting the
information needs of a self-governing citizenry
• their contribution to the search for truth in a "marketplace of ideas"
• the "checking value" of the media, reporting abuses by large institutions
• their importance to humans’ "self-actualization," basic liberty, and individual freedom
• the "safety valve" of dissidents’ speech, rather than their violent actions
Self-governing citizenry. In theory – as well as in practice – “democracy” means that each citizen is (or should be; or should at least have the opportunity if they choose to be) a “government official.” That is to say, they have a responsibility for first becoming informed about the questions of the day, then forming and expressing opinions regarding the answers, and finally, trying to persuade others of their position. Ultimately, out of this process of becoming informed, trying to persuade, and listening to the arguments of others, a consensus may emerge regarding what action should result. During the last presidential campaign and the early years of President Obama’s Administration, for example, there has been a very active public debate in the U.S. regarding how best to provide health care for all Americans.
Most Americans recognize their citizenship responsibility, think self- governing is a precious thing – even something worth fighting to protect – and make some effort to participate.
Those who wrote the Constitution believed that if the opportunity of self-governing was to be meaningful, it was essential that citizens have the freedom to get access to as much information and opinion as possible – and to contribute personally to the public dialogue. Any governmental effort to restrict that flow of information and opinion would be a deathblow to the whole idea of self-governance; it would be something undemocratic, unconstitutional – even “un-American.”
The Search for and Emergence of “Truth” from a Marketplace of Ideas. What is "truth"? Clearly, its meaning depends on the context in which we search for it. A religious truth may come from an ancient text, or a religious leader. A scientific truth may only come from the results of an experiment that is replicable by other scientists with the same results. A political truth may be little more than the opinion of the majority represented in election returns. Whatever the context, however we define “truth,” and wherever it is found, the results of the public’s search are improved to the extent it has been provided the widest possible access to the full range of available information and opinion.
It is yet another reason for, or consequence of, free speech. Regardless of the form of government, a society will gain in every way – in prosperity, culture, science, the arts, politics – to the extent that its citizens' search for truth is free and open.
Checking value. The media’s use of its free speech and press rights make it "a fourth branch of government." To speak of print and broadcast journalists in this way simply presumes, without even discussing the matter, that they have a public function that is as important as, while autonomous of, the other three branches of government.
This value of the First Amendment does not relate to the content of speech, as such, but rather to the process and consequences of investigation, gathering and dissemination of information.
The need for a "checking value" assumes that every institution in society, not just government, is capable of becoming ingrown, resistant to change, secretive, systemically corrupt, and more interested in perpetuating itself than in its original mission. This can be true whether the institutions are businesses, universities, churches, hospitals, the military or police.
Of all the ways to avoid these tendencies and provide a "check" on such abuses, one of the most effective is free and independent journalism. Reporters (and other citizens) can go anywhere, ask anything, demand documents, take pictures, listen to complainants, and be quite innovative in uncovering abuses. This is "investigative reporting." Because the reading, listening and viewing audience likes to learn about such abuses or scandals, and their interest boosts the media’s audience and thus the advertisers’ reach (and media’s profits), those who own the media are often willing to have such abuses reported and advertisers are willing to advertise in such media.
Thus, another value of the First Amendment is that it can help to keep other institutions in the society more honest and efficient.
animal species are superior to humans in a variety of ways, such as senses
of hearing and smell, speed of running, or ability to fly. What distinguishes
our species is our capacity and propensity to create, manipulate and communicate
by means of symbols, including language. The opportunity to investigate,
research, become educated, read, listen, think, speak and write – to exercise
our First Amendment rights – is central to our development as humans.
Thus, another argument for the First Amendment is also independent of the content of speech. It is a value related to concepts like "liberty," "freedom," "self-esteem," "self-expression," "personal growth and development," "education" and "culture" – summarized in the single expression "self-actualization." Self-actualization is the process by which an individual realizes, through his or her effort, as much of their potential as possible. Such a process necessarily includes the opportunity to become informed, educated, and cultured – and to express oneself intellectually, creatively, and artistically. For a government, or other institution, to stifle free thought and expression, or to forbid some subjects or opinions, obviously impedes individuals' self-actualization. For the purposes of this category, the ideas expressed may or may not contribute anything to the society's self-governing, search for truth, or checking value. If they contribute to the growth of the individual in question, it serves this biological basis for the First Amendment.
Safety valve. A safety valve on a boiler can release steam before the boiler builds up pressure and explodes. The First Amendment also serves this purpose for the potentially explosive pressures within a society. A famous civil rights leader in America, Dr. Martin Luther King, once said, "Having been denied access to radio and television we have had to write our most persuasive essays with the blunt pen of marching ranks." Fortunately, he was an exponent of "non-violent" strategies for change. Nevertheless, his reference to a "march" as an "essay" helps make the point. Other, less skilled essayists, have chosen to shoot, loot, burn, take hostages, and become suicide bombers in order to be heard.
This final value furthered by the First Amendment is also unrelated to the precise content of the speech. It is in some ways related to the preceding value of self-actualization. Here the value is the belief that, if people are free to present their grievances through speech and writing, if they have the opportunity to get the attention of their fellow citizens and officials, if they have the feeling that they have been "heard," they are much less likely to use violence as a means of protest and reform.
Now let us look again at the earlier conflict between the cable company and the citizen, in which each party argues their own First Amendment rights should be decisive. The language of the Constitution is not very helpful. Both parties can quote from it. However, when we examine the conflict from the perspective of the reasons for the First Amendment, the citizen’s argument for openness and diversity becomes much more persuasive than an owner’s right to censorship.
To permit more citizen participation in the community, or national, dialogue that takes place in the mass media, to increase the amount of available facts and diversity of opinions, serves each of the purposes of free speech. It facilitates self-government and the search for truth. The likelihood that institutional abuses will be investigated and reported to the public is increased. Obviously, every additional occasion for citizens to formulate and express their opinions increases their opportunities to advance their self-actualization and self-esteem. Finally, to the extent citizen anger is reaching the point of exploding into violent action, permitting citizens rights of entry into cable channels can help reduce the possibilities of personal injury and property damage from mob violence.
Thus, we can conclude that, however a court may interpret the literal language of the Constitution when addressing a law requiring citizen rights of entry onto cable channels, giving citizens such rights will better serve the purposes of the First Amendment than permitting cable companies to censor the content on each of the community’s cable channels.
At least this was my thinking as an FCC commissioner that caused me to insist that my colleagues include “public access” channels in the Commission’s regulations of cable television.
A community video movement was underway in the 1960s. The video cameras were much larger than those students have today. The recording deck was about the size of a suitcase. Among the leaders in this movement were George Stoney and Red Burns, and their Alternative Media Project at New York University.
As the capacity of cable systems expanded from 12 channels, to 20, to 40 and more, the possibility of setting some aside for the public became a real possibility.
A legal problem at the time was that there was nothing in the Communications Act, the source of the FCC’s jurisdiction, or legal power, which gave it authority to regulate cable television. We went ahead and did it anyway. Up to a point, courts were willing to reason that the FCC’s cable regulations, such as limitations on the number of TV signals cable systems could import from other cities, were “reasonably ancillary” to the legal authority the Act did provide for regulating broadcasters.
But requiring cable systems to make channels available for public, educational and governmental purposes, called P-E-G, or “PEG” channels, was going too far, said the courts. The Commission had exceeded its power. The courts did not say, however, that the requirements were unconstitutional, only that the Commission did not have congressional authority.
Meanwhile, local communities could include PEG channel requirements in their franchise agreements with cable companies, and ultimately the Congress included the requirements in legislation expressly granting the FCC legal authority to regulate cable television.
The public access movement has had mixed results. Some local programs are shared among cities’ public access channels by satellite distribution or otherwise, such as Amy Goodman’s daily “Democracy Now” hour-long news and public affairs program. In my small hometown of Iowa City, Iowa, the cable company sets aside a number of channels: local government, K-12 education, community college education, the University of Iowa, public library, and the public access channel. In other cities, there are no franchise provisions for such channels, and little interest in programming them if there were.
Moreover, the public access idea only applies to the cable companies. They have potentially more channels to program than they know what to do with. Cable television really is, conceptually, less like a newspaper or TV station, and more like a telephone company with thousands, or millions, of channels, and customers – offering entry and access to anyone who wants it. With rare exception, cable TV only provides a conduit to carry programming made by others.
Meanwhile, the courts still permit major mass media outlets total censorship power over their content, with rare exceptions. Newspaper readers have no legally enforceable right to have their letters to the editor published, or their comments posted on the paper’s Website. Even though the paper sells advertising space according to posted rates, and may be the only paper in town, it can still accept some paid messages and refuse to let others from ever reaching their readers.
The same applies to broadcast radio and television stations. Except in the very limited circumstances when candidates for public office are involved, no one has a legally enforceable right to appear on television, or even to buy time.
That’s a bit of the history of the public access movement, its past and present. Its future, for now, lies with the Internet – and whatever the Internet’s users can do to keep it free from the restrictions imposed by East coast code and West coast code.
Through it all, the mass media, so far, remain dominant, the servants of the U.S. government and corporate establishment.
Rights of “entry” & “access.” “Entry” is what we can put on the Internet. “Access” is what we can see.
“Public access” refers to 1960s/’70s “public access” (entry) channels on cable television systems.
“East coast code” (federal/states governments’ laws); “West coast code” (software engineers’ rules).
Internet is wonderful; but overwhelming media power (TV, newspapers) still rests in few hands.
What does “free speech” mean in mass media (Japan Art. 21; U.S. First Amendment)? One-way media.
Constitutions don’t answer: Do only media owners have free speech; or do we have rights of entry?
Must look to reasons for, purposes of, consequences of Constitutional provisions.
Self-governing; search for truth; checking value; self-actualization; safety valve.
Technical: “Broadcasting” inside a cable turned “economy of scarcity” into “economy of abundance.”
Political: 1960s/1970s “revolutionary spirit” in U.S. (music/art; women/minorities; “peoples’ politics”).
Legal: FCC requirement of PEG channels (public, educational, government)
Supreme Court said no; local franchises and Congress said yes
Mass media still holds power
of censorship; remains battleground for our “entry” and “access”