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The First Amendment Right to Censor
Nicholas Johnson

A Pacifica Radio Network Interview
Larry Bensky, KPFA, Berkeley
Robert Knight, WBAI, New York

During the
Columbia University Law School Conference
The FCC's Proposed Relaxation of Media Ownership Standards

January 16, 2003

NOTE: Out of respect for the copyright interests of Larry Bensky and Robert Knight, and as a result of the available technology and the day-long length of the entire program, this Web page contains only Nicholas Johnson's comments during the interview.

[An opening question dealt with NJ's years on the FCC.]

It was 1966 to 1973. And I spent those seven year writing dissenting opinions bemoaning how the agency had just given in to the industry and wasnít standing up for the public interest. Now we look back on those years as the ďGolden AgeĒ of FCC regulation compared with what theyíre doing now. Itís kind of "last man out turn off the lights." I donít see that thereís any interest in anything back there anymore. Although, Commissioner Copps does give us a little bit of hope. Iíll add another website to the list that Jeff Chester just provided, and thatís my own, which is just

[Q: "An 'org'?"]

Since Iíve never done anything successfully that was "com," I decided I should be an org. Thatís the problem. I felt a "com" would be a misrepresentation.

[Q: Go back to those years.]

Well, letís go back even further than 30 years with a quote from a very prescient congressman in 1926 when they were considering the predecessor to the 1934 Communications Act. It was the 1927 Radio Act, as it was then called. And hereís what he had to say on the issue that you guys are discussing today:

ďAmerican thought and American politics will be largely at the mercy of those who operate these stations, for publicity is the most powerful weapon that can be wielded in a republic. And when such a weapon is placed in the hands of one person, or a single selfish group is permitted to either tacitly or otherwise acquire ownership or dominate these broadcasting stations throughout the country, then woe be to those who dare to differ with them. It will be impossible to compete with them in reaching the ears of the American people.Ē
[This very timely comment is found at 67 Cong. Rec. 5557, 5558 (Mar. 13, 1926); emphasis supplied.] Now there was somebody who was smart enough to see that. His name was Congressman Luther Johnson -- no relation to me -- but smart enough to see that back before anybody could possibly have a sense of what even this technology of radio was, let alone what it was going to become. And he saw back in 1926 the same problems that we have today.

Congress was smart enough back then to put on limits. And what became the FCC, initially the Radio Commission, was smart enough to put limits on ownership -- precisely because of the kinds of concerns that Jeff Chester is raising. I couldnít agree with him more. As I used to put it when I was chair of the National Citizenís Committee for Broadcasting, trying to build coalitions, I said, ďWhatever is your first priority, whether itís womenís rights or civil rights or environmental concerns, your second priority simply has to be media reform. Because with that, the progressive community has a hope, and without it, you donít have a hope.Ē And thatís what weíre up against now.

[A question was put regarding the FCC's proposed further relaxation of ownership limits.] Well, let me tell you, itís much worse than that. I have been listening to your program streaming over the Internet. Because of the amount that I was able to get I'm not sure about this, but I  didnít hear anybody discussing what I think is the real issue. This is not about diversity of ownership.

It doesnít make any difference whether we have one owner or ten thousand owners. What makes a difference are the rules, the constitutional rights, the legal rights, the regulatory rights, with regard to rights of entry into the mass media conduits. Thatís what the fight ought to be about.

When AT&T was in existence, it had a total monopoly; it owned everything from one black telephone through the lines to the other black telephone on the other end. And yet, if you look back, you will see very few, if any, suits filed by the ALCU or any others complaining on First Amendment grounds about AT&T's interference with speech, or a lack of diversity of telephone companies.

Why was that? It was because the rules were that everybody had a right to get a telephone, and that once they got the phone they had a right to say anything over the phone they wanted to say. At least they had that right so far as the conduit owner, AT&T, was concerned. You might get in trouble with the police for some fraudulent transaction, or giving away national security secrets, but AT&T wasnít coming down on you.

Now what the Supreme Court has said, and I havenít heard anybody say this this morning, what the Supreme Court has said is that with the First Amendment right to speak goes the First Amendment right to censor. Now that may be all right in terms of an op-ed piece that you or I might write for a newspaper; nobody should have the right to put something inside our op-ed piece we donít want to say. But when youíre controlling a monopoly stream, to give the media owner that censorship power is so directly contrary to what the founders of this nation had in mind as to be absolutely outrageous.

[A question was interjected about the functioning of an FCC Commissioner's office.] Well, I donít think thereís any model, but the process is that the commissioners' offices are besieged with industry representatives, industry literature, industry filings by very expensive lawyers and others. My rule of thumb was, if youíve got anything you want to say to me, then letís call all of the commissioners together in a room and open it up to the press and you can tell us right there. I donít want to have any private conversations. But not everybody follows those rules. I thought it inappropriate to go to lunch and have an industry person pick up the tab on the lunch. But not everybody views it that way.

And thatís part of what Jeff Chesterís talking about with the need for the public to get involved in this process, because otherwise the commissioners are just totally surrounded by nothing but an industry point of view.

Documents are drafted by the FCC staff. Bear in mind, incidentally, that 90 percent or more of what the Federal Communications Commission does never comes to the attention of an FCC commissioner anymore that every decision of the federal court system comes to the attention of the Supreme Court justices. So what does come to the commissioners would usually involve a presentation from the staff of the FCC. After that, which commissioners talk to each other and how often and about what is going to differ from commissioner to commissioner. If you donít want to differ with whatís proposed by staff, all you have to do for seven years is put your hand up in the air occasionally and vote aye or nay. In my case, I chose to write dissenting opinions in a very substantial portion of the cases, so I had to do a lot of writing during the lunch hour of the meetings. But thatís kind of how it goes, and itís up to the individual FCC commissioner to write his or her own job description.

The point I was making earlier is that while a newspaper may choose to run your letter to the editor, while the call-in talk show may choose to take your call, you have no legal right of entry if they wish to exclude you. So you do not have a right to buy an ad in the New York Times or in the San Francisco Chronicle, to pick examples from your two areas [KPFA, Berkeley; WBAI, New York]. If they donít want to accept your money, and they donít want to accept the content in your ad, there is no way you can force them to do it.

The Supreme Court has said the same thing with regard to television stations. It has said the same thing with regard to radio stations. It has said the same thing with regard to cable. It has said the same thing with regard to St. Patrickís Day parades. And it has said the same thing with regard to the PG&E billing envelope out there in California.

So, if with the First Amendment right to speak goes the First Amendment right to censor this means that well over 99.9% of all Americans have no meaningful and effective First Amendment rights at all.

And, once you recognize thatís what weíre talking about, then itís not just a matter of the number of owners.

It's also not just a matter of the co-ownership of the content and the conduit, which Jeff Chester talked about to some degree, as abhorrent as that overlap is. Itís absolutely outrageous that you would permit the owner of a cable distribution system to also own the sources of programming that run on that cable system.

But as outrageous as all of that is, the problem is that there is simply no way for the excluded to get their message out at all.

And thatís before the FCC makes it even worse than it already is.


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