Thoughts From Another 'Newt' on Free Speech, TV

The commercial television industry is reading its constitutional rights to parents and critics across the land. It's telling them in no uncertain terms that the Founding Fathers gave the industry the right to transmit whatever it pleases to America's young.

Broadcasters have raised their constitutional shield against public discontent over the fouling of the airwaves - discontent that has tripped flares on Capitol Hill. A Congress ever artful in appeasing broadcasters while indulging their critics is being forced to do something. It seems certain to append to its final overhaul of the telecommunications law a requirement that setmakers install V-chips in new TVs.

Someone - no one quite knows who or how - is supposed to create the ratings system that will let parents activate the chip and zap programs they don't want their children to watch. Several zealous senators are trying to ban violent programs from airing at times in which children watch and to fund a quarterly ''report card'' that would cite offending stations and sponsors.

Whipping out the Bill of Rights, the president of the ABC TV network, David Westin, says that all of this raises ''substantial constitutional problems regarding the First Amendment, which protects us from government intrusion in free speech.'' The National Association of Broadcasters calls it ''piling on'' to build ''an unprecedented federal censorship bureaucracy.''

Citizens, for whom the right was enshrined, recall that the intent of the founders in promulgating the First Amendment had absolutely nothing to do with the sanctioning of economic interests to engage in the exploitation and social conditioning of the young. It dealt with monumental matters such as political expression and freedom of worship

Furthermore, citizens recall that freedom of speech is not absolute - least of all when it presents ''a clear and present danger'' to others. The young, for instance? You can't foment treason. You can't defame people. You can't shout ''fire'' in a crowded theater.

Political speech carries privilege that commercial speech does not. You can't publish pharmaceutical ads that make deceptive claims. You can't take liberties with ''tombstone ads'' that offer securities to the investing public. You can't put cigarette ads on the air, because, the courts ruled in 1971, in balancing free speech against the public good Congress had a rational basis for its ban. Public ownership of the airwaves gave government reasonable power to regulate electronic messages because radio and television advertising possesses characteristics that give it undue influence, especially over the young.

Only last month, in an opinion written by conservative James Buckley, the federal appeals court in the District of Columbia, for precisely the same reason, found that ''the government has a compelling interest in protecting children under 18 from exposure to indecent broadcasts'' between 6 a.m. and 10 p.m.

Lay citizens troubled with the deformation of the Bill of Rights by commercial kidvid producers have a learned ally in Newton N. Minow. Mr. Minow is the former chairman of the Federal Communications Commission who, back in 1961, failed to shame broadcasters with his ''Vast Wasteland'' speech. Now he has framed his concerns in an important book, ''Abandoned in the Wasteland: Children, Television, and the First Amendment'' (Hill and Wang).

Minow reveals to readers that the words he most wanted Americans to remember in that speech were not ''vast wasteland'' but ''public interest,'' which broadcasters vow to serve when they receive a license to operate on a public frequency. In a master flip of an Orwellian omelet, the industry has succeeded in planting the myth that the public interest is anything that serves the corporate interest, without regard to what we used to call civic responsibility.

Minow passionately demurs: ''The public interest meant and still means that we should constantly ask: What can television do for our country, for the common good, for the American people?'' If we can't figure out how the public-interest standard relates to children, the youngest of whom are illiterate, all of whom are ''financially, emotionally, even physically dependent on adults, then we will never figure out what it means anywhere else.''

Flipping the omelet again, industry lawyers and right-wing think-tankers have transformed the free-speech principle into the freedom to profit at any price. As they construe it, efforts to make broadcasters serve the public interest are, in effect, violations of their right to free expression. Minow cites examples in which the industry has used the hallowed free-speech right to gag free speech. In November 1992, Peter Chrisanthopoulus, president of a network front organization called the National Television Association, hectored sponsors of TV Turnoff Day: ''Participating in national boycotts is an infringement on the networks' First Amendment rights.''

I visited with Minow, and asked him a lawyerly ''theoretical'': how Thomas Jefferson, an author of the Bill of Rights, might have responded to that.

''Had he lived in the time of TV,'' Minow said, ''he would have insisted that it treat public issues in a balanced way. Our protection of children, our dedication to free speech, and to a free market, have gotten out of balance. He would have wanted the industry to redress that balance in favor of all citizens, but especially young citizens.''

Jefferson founded our first public university, the University of Virginia, demonstrating at the start the linkage of the First Amendment to the public interest. Serving the interest of the young is organic to the American future. Minow reminds a listener what the late Supreme Court Justice Potter Stewart said to petitioners: ''You are all confused about what you may have a right to do under the Constitution, and the right thing to do.''

The Buckley decision on indecency, children, and television is headed for the Supreme Court. In a major test, the justices will have the chance to resanctify a hallowed right intended for citizens, not runaway commerce, while underscoring the civic responsibilities to which the founders tied that right.

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