+(,121/,1(
Citation: 2 Cardozo Stud. L. & Literature 103 1990
Provided by:
Content downloaded/printed from HeinOnline
Sat Jun 17 03:13:57 2017
-- Your use of this HeinOnline PDF indicates your acceptance
of HeinOnline's Terms and Conditions of the license
agreement available at http://heinonline.org/HOL/License
-- The search text of this PDF is generated from
uncorrected OCR text.
-- To obtain permission to use this article beyond the scope
of your HeinOnline license, please use:
Copyright Information
House Testimonyt
Laurence H. Tribe
Whatever one might think of the MFJ's* restrictions on the
provision of information services by the BOCs**, any attempt by
Congress to impose such restrictions by statute - even if Congress
were to legislate even-handedly (rather than targeting the BOCs by
name or through ostensibly general language targeting them as an
identifiable group), and even if Congress were to replace MFJ
restrictions that are still in effect with statutory restraints of a more
lenient character - would confront the formidable obstacle posed by
the First Amendment whenever Congress undertakes to "abridge [I the
freedom of speech." Congress may "make no law" that effectuates
such an abridgment, whether temporarily or permanently, either by
denying various firms the freedom to communicate information that
they have themselves generated or edited, or by controlling the
content or price of such information.
Core Principles
A core principle of the First Amendment is that the speech of
individuals and corporations has inherent value and is entitled to
protection, regardless of what medium is used for the speech.
Sensitivity to each medium's uniqueness must not obscure this basic
principle. The decision of the D.C. Circuit in Quincy Cable TVInc. v.
FCC, 768 F.2d 1434, 1448 (D.C. Cir. 1985), cert. denied,476 U.S. 1169
(1986), striking down FCC must-carry rules for cable, stated it well:
"[T] he core values of the First Amendment clearly transcend the
particular details of the various vehicles through which messages are
conveyed."
First Amendment values are also protected independent of
details about the vehicles that generate or edit messages - that is, the
particular speakers involved. The Supreme Court has made clear that
the information and ideas communicated by corporations are fully
entitled to protection under the First Amendment: "The inherent
worth of the speech in terms of its capacity for informing the public
does not depend upon the identity of its source . . ." First National
Bank of Boston v. Bellotti, 435 U.S. 765, 777 (1978). See also Pacific
Gas & Elec. Co. v. Pub. Util. Comm'n, 475 U.S. 1, 8 (1986);
tExcerpt from testimony before The House Committee of Energy and Commerce,
Subcommittee on Communications and Finance, concerning the Telecommunications
Policy Act of 1990, April 18, 1990.
103
Consolidated Edison Co. v. PSC, 447 U.S. 530, 533-34 (1980). For
example, in F.C.C v. League of Women Voters 468 U.S. 364 (1984),
the Supreme Court held that not even in a medium that would seem
least entitled to vigorous protection - public television stations
funded with taxpayer dollars - may broadcasters be denied an
opportunity to create, edit, and broadcast their own ideas and
information, in the form of political editorializing.
Nothing in the Supreme Court's recent decision in Austin v.
Michigan Chamber of Commerce, 110 S. Ct. 1391 (1990), concerning
corporate expenditures' in election campaigns, has any adverse impact
on that core principle. Even with respect to "commercial speech" mere solicitation of business transactions through routine advertising
- where First Amendment protection is at a low ebb, the Supreme
Court has held as recently as June 1989, in S. U.N. Y. v. Fox, 109 S. Ct.
3028 (1989), that government's goal in restricting such speech must
be "substantial;" that the cost of less restrictive alternatives must be
"carefully calculated;" and that government "bears the burden
of
justifying its restrictions" and "must affirmatively establish the
reasonable fit [the Supreme Court] require[s] ." Id. at 3035. And that
quite speech-protective standard was imposed in a case involving
nothing more than salesmen going door-to-door in a college dorm
trying to hawk hotplates, dishes and other kitchen paraphernalia.
Of course, what we are talking about in the informationservices field - even with respect to "electronic Yellow Pages" - is
speech that is far more jealously guarded than the mere advertising of
one's products or services, and more closely guarded than
governmentally subsidized speech by public broadcasters. The BOCs
claim the right to create or edit their own information, or to buy the
information of others, and to provide that specially collated
information to consumers for a fee. These activities lie at the very
heart of the First Amendment. That's what any newspaper does. That's
what a book publisher does when it purchases a manuscript and puts
out a book. That's what a brokerage firm does when it gathers and
collects data and provides investment advice over the phone. And the
fact that one wishes to charge money for one's speech in no way
reduces one's speech to the category of "commercial speech" (i.e.,
mere advertising or solicitation), and in no way diminishes the
protection afforded such speech under the First Amendment. See, e.g.,
Riley v. NationalFederationof the Blind, 108 S. Ct. 2667, 2680 (1988)
("It is well settled that a speaker's rights are not lost merely because
compensation is received; a speaker is no less a speaker because he or
she is paid to speak"). See also New York Times Co. v. Sullivan, 376
*104
-1
U.S. 254 (1964); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952).
The First Amendment firmly protects the right, absent
compelling justification, not to have government restrict one's
editorial decisions about the content and generation of the
informational material one wishes to convey, electronically or
otherwise, whether altruistically or for economic gain. As the Supreme
Court has noted in addressing cable television, "original programming"
and "editorial discretion" with respect to speech are the very core of
what the First Amendment protects. City of Los Angeles v. Preferred
Communications,Inc., 476 U.S. 488, 494 (1986).
Permissible Regulation
This is not to suggest that whatever someone does in the
course of gathering or disseminating information is totally immune
from legal restriction. In 1945, for example, in Associated Press v.
United States, 326 U.S. 1 (1945), the Supreme Court held that
newspapers found guilty of forming a cartel boycotting local papers
that competed with the cartel's members could be subjected to a
decree breaking up the cartel and mandating the admission of
competitors. But nobody has ever suggested that, to redress such
abuse or to prevent its recurrence, government could exclude all
members of the Associated Press from gathering and disseminating
their own news as a line of business.
The Supreme Court later held in National Society of
Professional Engineers v. United States, 435 U.S. 679 (1978), that
engineers found guilty of restrictive price competition, through an
ethics code that barred competitive bids, could be subjected to relief
which included barring the engineering society from suggesting in its
code that competitive bidding was problematic. The fact that they had
a general right to promulgate an ethics code didn't stand in the way of
such targeted relief. But it certainly doesn't follow that the engineers
could be told to promulgate only an ethics code composed by
someone else. So too, it doesn't follow that, if Random House or
Simon & Schuster were found guilty of rigging bids on a prominent
novel, they could be forced out of the publishing business, and
confined to the business of distributing the publications of others, as a
legislatively declared remedy. It is impermissible to say that, just
because someone can be required to behave in a fair and competitive
manner - and even to give others non-discriminatory access to one's
facilities because one has taken on a common-carrier role with respect
to messages - one can be subjected to content-based restraints on
speech or to a total ban on generating speech content.
-105
The First Amendment Defects of the
Current Proposal
In any event, the proposed legislation obviously is not the
sort of direct and narrowly targeted remedy for an adjudged antitrust
violation that was involved in Associated Press and Professional
Engineers.It is, rather, a flat ban on speech by particular speakers over
a particular medium. Compare the flat municipal ban on "First
Amendment activities" (defined in just those words) in an airport
unanimously struck down by the Supreme Court in Board of Airport
Commissionersv. Jews forJesus,Inc., 482 U.S. 569, 574 (1987) (noting
that, "[o]n its face, the [ban] reaches the universe of expressive
activity" in the airport).
Indeed, if the common-carrier status of the telephone
companies - the only thing that makes it permissible to require them
to carry the messages of others 2 - is relevant at all, it cuts sharply
against any ban on content. Because the telephone companies have a
common-carrier obligation to carry the messages of others on nondiscriminatory terms, government enjoys substantial powers to police
their behavior, to ensure that they give non-discriminatory access to
all. There is simply no warrant for the draconian step of denying them
3
the right to use their own property to engage in speech activities.
On the contrary, where, as here, reasonable regulatory
procedures are available for targeting precisely the feared evils of
speech, government is required to pursue that better tailored
response; it may not simply ban the speech itself. That was made clear
by a unanimous Supreme Court last June in the so-called "Dial-a-Porn"
case, Sable Communications v. FCC, 109 S. Ct. 2829 (1989). In Sable
the Court held that, when government is concerned with possible
dangers and abuses that might be posed by the exercise of speech, it
must focus on regulating the harms from such exercise and may
contemplate banning the speech, if ever, only if all else fails.
Sable involved indecent, but not quite obscene, messages messages occupying the lowest rung on the First Amendment ladder
because they appealed primarily to sexual reflexes and interests. The
Court ruled that Congress could not ban all such indecent messages
from the phone lines in order to ensure that all vulnerable young
children would be protected from the unfortunate influence of such
stimulation. Adults had a right to receive even these low-value
messages by the most convenient means, the phone lines, and could
not simply be relegated to movies, videotapes, cable, and magazines
for such material, even for the compelling purpose of protecting
children - because the FCC believed, and the Court agreed, that there
were less restrictive ways of assuring that children who ought not to
106
have access to the material could be shielded from such access. Id, at
2836-39. In light of that option, the Court said that there neither was
nor could be evidence that the less restrictive alternatives wouldn't
work, because the FCC's latest rules had "never been tested over
time." Id.at 2837.
Of course, the First Amendment case for information services
provided by the BOCs is much stronger. Apart from the presumptively
far greater value that this speech could have for the public, it is clear
that the speech itself is not thought to threaten any direct harm at all.
Rather, the only theory put forth to justify a ban on such speech is that
ifthe BOCs are allowed to speak over their own phone lines they: (1)
might be tempted to "cross subsidize" their speech activities, by trying
to misallocate the cost of creating content to local telephone service,
in violation of FCC regulations; or (2) might be tempted to
discriminate against information-services competitors, by violating
their legal obligation as a common carrier to carry the messages of all
in a non-discriminatory manner. The answer to this theory is clear
under the First Amendment, just as it was in Sable- any legislation that
is enacted must be limited to attacking these feared abuses directly,
e.g., by providing guidance to the relevant regulators of local
telephone service for guarding against the possibility of crosssubsidization or discrimination.
Just as the Supreme Court in Sable insisted that regulations
must target the evil feared as a result of speech rather than the speech
itself, so too in this area regulations targeting the feared evil are
available, and are in fact relied on by the proposed legislation.
Examples include the FCC's rules in Computer 1,11 and III, its Open
Network Architecture (ONA) regulations, the Comparably Efficient
Interconnection (CEI) rules, and the like. Of course, critics argue that
these safeguards may not be foolproof. But those were the very
arguments put forth to defend the ban on speech in Sable, and they
were unanimously rejected. This is exactly the type of suspicion that
cannot, consistent with the First Amendment, be a sufficient ground
for barring speech.
Thus it is quite clear what the Sable decision means for
present purposes: Congress is free to give the FCC regulatory power in
conjunction with that of the Department ofJustice to prevent whatever
specific competitive abuses are feared. But the FirstAmendment flatly
rules out a genericprohibition on the creation by the BOCs of various
sorts of information content, or on the transmissionof content owned
by the BOCs over their own networks. Under the First Amendment, the
BOCs may not be limited to charging what amounts to a highway toll
for transmitting information services generated by others, any more
than any other individual or firm may be told: "You may carry speech,
107
but only if it's somebody else's." Congress cannot say: "You may
provide the medium, but not the message." This is, unfortunately, a
central approach of the proposed bill, as is most obvious with respect
to in-region information services. Similarly, the portions of the bill
barring interexchange information services, and setting detailed
content regulation of the exact types of electronic Yellow Pages
services that may be offered and how often they may be updated, flatly
violate the First Amendment.
Section 256(c) of the proposed bill, putting informationservices restrictions in place for a minimum of ten years and directing
the FCC to make a discretionary evaluation of whether to allow those
restrictions to be lifted after the decade is up, likewise seems to me
independently unconstitutional. To begin with, whatever might be
said of the MFJ restraints accepted in 1982 by AT&T on behalf of the
BOCs, no one has "consented" to an enactment by Congress of
restraints on speech by the BOCs. Beyond that, however, even if
Congress could somehow rely on AT&T's 1982 consent as authorizing
the substitution of legislative restraints no stricter than those of the
MFJ, the fact is that the restraint removal provision of § 256(c) is far
more restrictive than the current Section VII removal mechanism for
which the parties bargained and to which the BOCs, at minimum, are
entitled. Assuming for the sake of argument that Congress could justify
imposing a speech ban in the first place, this regime would restrain
the BOCs on an ongoing basis from speaking unless and until ten
years have gone by (even if the supposed need for the restraint
disappears before that time) and unless and until the BOCs satisfy the
4
FCC that they should be allowed to speak.
It is axiomatic, however, that speech may not be held hostage
to the discretion of a governmental decisionmaker, City of Lakewood
v. Plain Dealer Publishing Co., 486 U.S. 750, 755-56 (1988). The
procedure of § 256(c) also appears to impose the burden of lifting a
prior restraint squarely on the BOCs and those who wish to hear their
speech, in violation of the long-settled rule that the censor and not the
speaker must bear the burden of persuasion: the censor must
demonstrate the unprotected status of the speech that is to be
restrained.5
It should be stressed that the proposed information-services
restrictions on the BOCs could in no sense be defended as
permissible "time, place or manner" regulations. There is a First
Amendment doctrine that content-neutral restrictions governing the
"time, place or manner" of speech are permissible even when one is
dealing with protected speech. But that doctrine must not be confused
with the notion that one can totally bar protected speech during a
certain time (e.g., no speech between 8 a.m. and 9 a.m., cf. City of
-108
Watseka v. Illinois Public Action Council 479 U.S. 1048 (1987)
(mem.)); or in a certain place (e.g., no "First Amendment activity" in
the Los Angeles Airport, see Board of Airport Commissioners v. Jews
for Jesus, Inc., 482 U.S. 569 (1987), discussed supra); or in a certain
manner (e.g., "You can speak, but not by newspaper").
All the "time, place or manner" doctrine really means is that,
when a regulation is genuinely content-neutral - when it has nothing
to do with which speakers are speaking and what they are saying and is simply like a traffic regulation to ensure orderly speech, it may
be constitutionally acceptable. For example, government may require
you to get a parade permit, because two groups can't have a parade at
the same time. It may require you to parade or to disseminate written
materials peacefully, and not break windows. But it cannot tell you
that you may carry signs or sell magazines only so long as they are
composed by others, or are directed to people living outside a
particular geographical region.
It's just a play on words to think that the power to impose
content-neutral restrictions on time, place or manner, consistent with
the First Amendment, could justify a ten-year suspension on speech as
a "time" restriction. Indeed, where there is a First Amendment right,
every day that it cannot be exercised entails an irreparable harm. It is
inconceivable that one could restrict BOC electronic publishing to
out-of-region customers on a "place" rationale. And finally, the fact
that this legislation applies to just one medium, the telephone system,
is no defense. That the phone is involved gives rise only to certain
limited obligations of non-discriminatory access, and not to a general
legislative power to silence or muzzle the content of what the BOCs
generate for electronic transmission.
More on Permissible Regulation
What kinds of restrictions would be consistent with the timeplace-manner principle? The answer is clear: It is permissible to
impose safeguards that leave the BOCs free to speak, while targeting
only the abuses feared. Neutral government policies designed in a
general way to regulate the risks of harmfully anticompetitive
behavior, whether or not that behavior happens to involve speech, are
permissible. The fact that a general government policy happens
incidentally to burden speech activities does not make it unconstitutional. See, e.g., Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986)
(upholding the closing of a bookstore for one year as a neutral
application of a law allowing the closing of any building found to be
the place of illicit sexual activities); Jimmy Swaggart Ministries v.
Board of Equalization,110 S. Ct. 688 (1990) (unanimously upholding
California's burdening of the sale of religious items and publications
-109
by its inclusion of those items under the state's general sales and use
taxes).
Thus, government is free to ensure that the amounts paid by
ratepayers for basic telephone service are fair and reasonable, and are
not used to "cross-subsidize" competitive services offered by local
exchange carriers. And government is free to require that such local
carriers not operate their telephone networks in a manner that unfairly
discriminates against information services.
*The term MFJ refers to the Modified Final Judgement of Judge Greene, United States v.
AT&T, 552 F. Supp., 131 (D.D.C. 1982), aff'd mem., sub nom. Marylandv. UnitedStates
460 U.S. 1001 (1983). Judge Greene, inter alia, precluded A.T.&T. "from entering the
field of electronic publishing until the risk of its domination of that field has abated,"
552 F. Supp. at 224.
**BOC refers to the Bell Operating Companies, the seven regional entities created by
the breaking of A.T.&T.
1. The result in Austin, allowing states to bar corporations from spending their general
treasury funds to promote the election of a particular candidate, turned solely on the
government's unique interest in protecting the electoral process. The majority opinion
in Austin explicitly reaffirmed past decisions protecting corporate speech. See 58
U.S.LW. at 4372 (reaffirming First National Bank of Boston v. Bellotti), and at 4373
(reaffirming FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238 (1986)). See also id. at 4376
(Brennan, J., concurring) (emphasizing the uniqueness of the need to protect the
political marketplace, and harmonizing the limited Austin holding with Mass. Citizens
for Life).
2. Such a requirement is otherwise presumptively invalid. See, e.g., Wooley v. Maynard,
430 U.S. 705, 714-17 (1977) (protecting individual's right not to be used as a medium for
the government's messages); Pacific Gas & Elec. Co. v. Pub. Util Comm'n, 475 U.S. 1, 6
(1986) (extending this right to protect a corporationfrom being forced to serve as a
medium for the messages of others).
3. Any theory that the BOCs derive monopoly power from the government likewise
cannot justify the abridgement of First Amendment rights. Even in the areas of the
country where the BOCs have been granted exclusive telephone franchises, the fact that a
franchise is a mere privilege gives government no authority to condition that privilege on
the surrender of a First Amendment right. See, e.g., PacificGas & Electric Co. v. Pub. Util
Comm'n, 475 U.S. 1, 17 n. 14 (1986); ConsolidatedEdison Co. v. Pub. Serv. Comm'n, 447
U.S. 530, 534 n. 1 (1980); Pickering v. Board of Education,391 U.S. 563, 568 (1968);
Speiser v. Randag 357 U.S. 513, 518-19 (1958). Indeed, not even the provision of
government money to a television broadcaster can justify such a condition. FCC v. League
of Women Voters 468 U.S. 364 (1984).
4. Even if Congress enacted a removal restriction that on its face appeared identical to the
language of Section VII's public interest standard, it would still be more restrictive insofar
as it replaced an entitlement to relief once a certain showing was made based solely
upon the evidence presented to an Article III tribunal, with a mere opportunity to
persuade an administrative or executive agency to exercise its discretion in the BOCs'
favor. Cf. Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982) (treating a cause of action,
-110
or a legal claim to relief before an adjudicative tribunal, as a species of "property" protected
from deprivation by government action).
5. See Blount v. Rizz, 400 U.S. 410, 417 (1971); Freedman v. Marylang 380 U.S. 51, 58
(1965); Speiser v. Randall 357 U.S. 513, 526 (1958).
6. See, e.g., Nebraska Press Ass'n v. Stuart 423 U.S. 1327, 1329 (1975) (Blackmun, J., in
chambers) (explaining that "any First Amendment infringement that occurs with each
passing day is irreparable"). See also NationalSocialistParty of Amei'ca v. Village of Skokie,
432 U.S. 43, 44 (1977) (per curiam) (reversing Illinois Supreme Court's denial of a stay,
pending appellate review, of an injunction prohibiting Nazis from marching in Skokie,
Illinois).
-111