”Is the new TV show good? It is an entertaining question when asked around the kitchen table. It is a financial question when asked in a Hollywood studio or Madison Avenue office. But it is a scary question when asked by regulators in Washington.
Three recent events have made this question commonplace in Washington: the revelation that the White House drug office had reviewed network television programs to assess their propriety; a now aborted effort by the FCC to evaluate the educational quality of religious programming; and an inquiry by the Federal Communications Commission that may require free political advertising.
A czarist White House: Until last month, few knew the White House was clandestinely reviewing television programs with the cooperation of TV networks. If a show contained a sufficiently anti-drug message, the White House offered to reduce the network’s obligation to provide free time for anti-drug public service announcements. Awarding government subsidies for certain kinds of scripts and programming undercuts the very core of broadcasters’ independence and blurs the line between programming and propaganda. It also reflects a governmental arrogance about what is the best type of programming for viewers and an effort to hide the government’s role.
The administration’s reaction to the unmasking of this hidden process has been brazen pride, stressing the importance and success of the anti-drug message. No doubt, some in the administration would have us believe the ends do justify the means and that constitutional rights to freedom of speech and other activities can be eroded in the name of an anti-drug campaign or other popular policy.
A secular FCC: Last December, the FCC announced a decision that reveals a similar willingness to cast government in the role of programmer in an effort to advance good messages. In an effort to provide guidance to noncommercial television licensees, the FCC ruled that at least 50 percent of an educational station’s programming must be educational, cultural or instructional and found that many types of religious programming would not count.
For example, the FCC found that programming devoted to religious exhortation, proselytizing or statements of personally held religious views and beliefs would not qualify as educational. On the other hand, shows that explore religion from a literary or historical perspective did qualify. The FCC ultimately rescinded its guidance, but did not specifically abandon the notion that government may judge speech as good or bad.
The problem with government advancement of good speech is that by necessity it must define good and reject bad speech. Besides the inherently problematic nature of such an evaluation, the process almost inevitably leaves licensees with no choice but to seek government approval for their programming. Perhaps educational licensees would send in their shows in advance to assess whether they are overly focused on personal religious beliefs or whether the half-hour devoted to Torah instruction is mere exhortation.
Free speech only for politicians: Similarly misguided is a recent FCC proceeding to assess whether government should require broadcasters to offer free airtime to candidates. According to its advocates, the program is designed to improve political discourse and better educate the voting public. Besides the dubious constitutionality of such a program, it too creates a dangerous opportunity for government to control and approve certain media messages and could well lead to replication of the invidious approach of the White House Drug Control Office. For example, would the guest appearances by Hillary Clinton on the “Late Show” with David Letterman or by Sen. John McCain, Arizona Republican, on the “Tonight Show” be screened by the FCC in order to award credit under such a free air time obligation? Would the government end up judging which candidates could participate, or which broadcast programs actually improve the nation’s political discourse?
The dangerous aspect of these policies is their ability to grow from quite innocent roots. No one favors drug use by children, or is against educational programming, or is opposed to more rigorous political debate. Yet these seeds grow to form the basis of government actions that can advance government-selected messages over others. We should be mindful that the First Amendment is a prohibition on the government abridgement of speech; it is not an invitation for government-reviewed speech or government-sanctioned speech or government-subsidized speech.
Government operates best when it allows all messengers to offer their views, allowing the American people to decide which take root and which wither away. To the extent that government must speak at all, we are all better served by clear identification of the government role. When government and private speech become intertwined, the First Amendment is at risk.
Harold Furchtgott-Roth is a member of the Federal Communications Commission.