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McDowell: Beware Incremental Speech Encroachments

10/18/2011 11:27:15 PM

FCC Commissioner Robert McDowell evoked the FCC’s network neutrality rules and its abandoned Fairness Doctrine policy, which he pushed to scrub from the books, when speaking Tuesday of the threat of creeping government censorship to the Freedom of Speech.

And while he talked of Chinese government Internet speech “protections” undercut by enumeration or rendered meaningless by expansive government powers, his message appeared to be meant, at least as a cautionary tale, for this side of the Pond as well.

McDowell was accepting the Media Institute’s Freedom of Speech award at a banquet in Washington.

He told his audience that those involved in policy debates about speech currently before the FCC, “and elsewhere”–those include proponents of network neutrality and those would require broadcasters to balance speech–sometimes contend that a private individual who restricts another individual’s speech is violating the First Amendment. He said that argument is wrong as a matter of constitutional law.  It is instead speech deemed by the government as “unsavory” that can lead to erosions in speech freedom.

“All forms of governments have attempted to bring “balance,” “fairness” or “neutrality” to speech all in the name of serving some variation of the “public interest,” he said. “Too often, those controlling the power of government seem all too eager to use the state to “referee” conflicts between private speakers. Interestingly, those in government who exercise more control over speech, especially political speech, never seem to want to relinquish their political power while they are muting others’ voices. State power is too frequently accompanied by its sinister twin: arrogance. They grow larger together.”

“[I]f you look around the globe, it is not private parties who are causing crises by infringing on individuals’ speech rights. It is governments,” he said, then turned to China to make his point. He cited the country’s avowed protection of free speech and the press and the government’s white paper on, among other things, “Guaranteeing Citizens’ Freedom of Speech on the Internet.”

But then came the enumeration: “[N]o organization or individual may produce, duplicate, announce or disseminate information” on the Internet that could have the effect of “subverting state power,’ ‘damaging state honor and interests,’ ‘jeopardizing state religious policy,’ or that is “forbidden by laws and administrative regulations.’ And lest his audience think the message was directed entirely at Chinese officials, he called that death by caveat the “Chinese version of the public interest standard.”

His point, he said, was that that “written guarantees of individuals’ rights are meaningless in practice when governments have an expansive ability to turn the one-way ratchet of state power tighter and tighter.” The tool for turning that ratchet is regulation, he suggested. “Speech regulation can come with many justifications, some of which are noble, such as protecting children.”

When it comes to regulating political speech, he told the audience, “we should remain especially vigilant and battle-ready.”

Quoting President James Madison, McDowell said: “Only in the United States have we embraced the rule that laws restricting freedoms of speech and press may not be passed merely because they seem reasonable to the majority,” adding “Thank you, but journalism does not need government’s help.”

Also saluted for “leadership in promoting the vitality and independence of American media and communication” was Randall Stephenson, chairman and CEO of AT&T, who received the institute’s American Horizon Award. He put in a plug for regulatory policies that promoted investment and, after Senator Mark Warner (D-Va.), said communications companies could help as Congress worked on reducing the deficit, said AT&T could help if Congress would pass spectrum auction legislation, which wireless companies like AT&T are expected to bid on to the tune of billions for deficit reduction.

AT&T currently has a proposed T-Mobile merger in front of the FCC. After McDowell congratulated Stephenson on the award, he appeared ready to say something more, then paused and deadpanned: “I’m sorry, but apparently this is all my legal team says I am allowed to say about you.”

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