February 9, 2007
Access vs. Censorship, Part I: Avoiding Schizophrenia in U.S. Media Policy

The following series of posts is based on research I completed for the New Media and Democracy course at Harvard's Kennedy School of Government in Fall 2006. As I think these regulatory issues are an essential guiding force for the convergence culture we write about here at C3, I wanted to share this work with the C3 readers in a series of upcoming posts. This first post in this six-part series will lay out the groundwork of the research I completed, followed by an examination of DOPA and net neutrality,which are examples of two types of government regulation of new media.

Parts two and three will look at DOPA and then whether or not DOPA is "last year's concern." Parts four and five will look at net neutrality and what the debate on net neutrality really means. Finally, in the conclusion, we will revisit the larger questions posed here.

Avoiding Schizophrenia in U.S. Media Policy

The United States government has focused on two forms of government intervention in the media industry in the past few years, and throughout the 20th and 21st centuries. These two forms of government regulation are often in conflict and display two distinct views of government. One of these perspectives views the government as a referee, or else as an enabler, to make sure that rules are enforced in the media industry to ensure fair business practices and to maximize citizen connectivity. The other mindset portrays the government as an active and maternal force, protecting citizens from the dangers of this connectivity.

Because of the collisions between these divergent views, the government may be seen as schizophrenic in its actions, encouraging free speech and innovation in one regard and demonstrating a desire to restrict that communication in the next.

Fred S. Siebert, Theodore Peterson, and Wilbur Schramm, in Four Theories of the Press, have said there are four rationales for understanding governmental responses to the mass media; two of those forms, one of social responsibility and one of libertarian values, are at battle here. (The other two perspectives, an authoritarian and a totalitarian perspective, are not commonly viewed as current American governmental practice in response to the media.)

However, the limits of such categorizations are apparent when one tries to deconstruct the motivating factor for these conflicting values of access and restriction. Libertarian values would not seem to correlate with governmental restriction to access of content, whether in the name of offense to public tastes or even, in an extreme libertarian sense, out of fear for the protection of minors or other preventative measures.

On the other hand, the libertarian stance on encouraging access to content is more problematic, as the rights of the public to access to new markets, for instance the Internet, come into conflict with the rights of service providers to sell access to that content free from government intrusion. In such battles, the "libertarian perspective" is hard to distinguish. Likewise, the "social responsibility" philosophy can be attracted to both sides of this debate, creating conflicts between desires to provide equal opportunities for the less privileged and a maternal concern regarding content that offends decency.

Neither can these two forms of governmental action, of access and of restraint, be easily divided along conservative and liberal lines. While liberals have been more closely linked with concerns about equality of access to new technologies, the fruits of that free access have created a vibrant new marketplace (both in the ideal "marketplace of ideas" form and also in an explicitly capital sense) that has motivated a desire from advertisers and vendors to make the technology available to all.

On the other hand, government restriction has been consistently popular across party lines, as Democrats and Republicans come together to debate issues of content which offends the public norm or technologies that may put America's children in danger. Whether the debate is about moral offensiveness on broadcast television or the effects of video games on children, marriages between the maternal liberal perspective and the paternal conservative perspective have dominated many hours of governmental resources and congressional meetings, especially during election years.

Meanwhile, Roger Hurwitz, in his essay "Who Needs Politics? Who Needs People? The Ironies of Democracy in Cyberspace," divides these issues of media regulation into private versus public arguments and civil liberties versus state power, in particular regarding the debate about cyberspace. From this perspective, restrictive government action based on societal norms seem to encourage public interests over private good but also emphasize, in the case of regulating teenage use of social networks, stifling the communication of millions for the safety of a few isolated cases. Hurwitz's essay appears in the book Democracy and New Media, co-edited by C3 Director Henry Jenkins and David Thorburn.

Finally, Ithiel de Sola Pool, in his 1983 book Technologies of Freedom, points out that much of the danger in public policy comes from the very different approaches taken toward communications policy from a print model (free regulation in general); the common carrier model (government assuring nondiscriminatory access for all); and the broadcasting model (government-licensed private owners as publishers). Policy toward new technologies, from cable and satellite television to the Internet to satellite radio, and so on, have raised questions on how to categorize these issues and explain some of the schizophrenic response and the juggling between issues of access and restriction. Pool writes, "It was in the 1920s, however, that communications policy in the United States seriously lost its way. Without adequate thought, a structure was introduced for radio which had neither the libertarian features of the common carrier system nor those of the free market."

With governmental resources always taxed, and the rate of technological change increasing exponentially for Americans, trying to maintain this dual focus on media policy is problematic. These two governmental duties must both be maintained, in the real sense that the government is ultimately responsible for ensuring a referee status to the free market to ensure as equal a footing as possible for the participants in capitalism and that government must help protect citizens from harming one another.

However, one of these strains of government obligation must be clearly prioritized over the other, if the government is to be as effective and as efficient as possible in responding to the effects of these new technologies on Americans. Weighing the potential value of both forms of governmental involvement in the mass media industry, this paper encourages putting significant resources behind ensuring more freedom of access and subsequently diminishing the massive amount of attention and resources given to restrictive initiatives.

This focusing of priorities is not meant to completely discredit the need for governmental involvement in regulating sites of public discourse. Surely, there are issues, such as cases of "clear and present danger," in which governmental involvement to protect citizens from certain forms of speech are necessary. As Pool writes, there are times in which these forms of communication must be considered as more than just speech.

While some libertarian voices may adhere to an absolutist approach to free speech, almost all Americans would not doubt some need for governmental regulation, especially in cases of fraud, plagiarism, and libel. (For more on the idea of absolutist speech, read the introductory chapter to Douglas M. Fraleigh and Joseph S. Tuman's Freedom of Speech in the Marketplace of Ideas.

However, in order to provide the most effective value possible in allocating congressional time and taxpayers' money, Congress must clearly prioritize issues of access over issues of restriction moving forward.

This study focuses in particular on two contemporary issues of congressional action, last year's proposed bill called the Deleting Online Predators Act (DOPA) that passed the U.S. House of Representatives but never reached a vote in the Senate, and the recently proposed bill by the new Senate encouraging the protection of net neutrality. DOPA is clearly a proposal that focuses on the government's regulatory duties, driven by fear for children being targeted on social networking sites by adult sexual predators.

Meanwhile, the issue of protecting net neutrality focuses on ensuring freedom of access for American citizens and content providers on the Internet.

These two pieces of legislation demonstrate the ways in which current Congressional actions highlight the struggles between these two perspectives, as one bill serves to restrict access to the Web content, while the other attempts to ensure continued balanced access to online sites. By examining the history of these two bills and the social arguments surrounding them, this series of posts aims to demonstrate the greater societal value in prioritizing equal and widespread access.