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Commissioner McDowell Remarks at the Media Institute Dinner

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Released: October 19, 2011

REMARKS OF

COMMISSIONER ROBERT M. MCDOWELL

FEDERAL COMMUNICATIONS COMMISSION

MEDIA INSTITUTE

TUESDAY, OCTOBER 18, 2011

THE FAIRMONT HOTEL

WASHINGTON, D.C.

DEFENDING THE FIRST AMONG OUR FREEDOMS


AS PREPARED FOR DELIVERY

Thank you, Rod, for being here tonight to deliver those terrific remarks. And
congratulations on your amazing career. Rod Smolla is as brilliant, energetic and
charismatic today as when I took his Bill of Rights course more than 20 years ago.
Professor Smolla, or now President Smolla, is one of those rare academics who not only
publishes prolifically but radiates an engaging passion during class as well. He creates an
electric atmosphere of learning that makes it impossible for even the most narcoleptic of
students to fall asleep. Most importantly, he cares deeply whether his students are
learning. It is no wonder that his classes at William & Mary were always
oversubscribed. Furman University is lucky to have him as its President.
When it comes to matters of speech, it is safe to say that even though he and I do
not necessarily endorse every idea the other has said or written over the years (in fact, we
have no way of even knowing everything the other has said or written) we agree on the
paramount right to express those thoughts. But more about that in a minute.
Patrick and Dick, congratulations on the Media Institute's continued success.
When Patrick told me that I would receive this prestigious award, he said it was for my
work advancing the freedom of speech. He invited me to make a few remarks about how
I believe that freedom is essential to our democracy's survival and integral to the
sovereignty of the individual. He emphasized that it should not be abridged. And in the
same breath he said, "But we have a strict limit of 10 minutes, so don't run over!" So
even the Media Institute has time, place and manner restrictions on speech ... and for
good reason.
The last time I spoke to this group was in early 2009. I recognize some of you
from that day because you left one by one as I was speaking. You see, after he turned out
the lights in the empty hotel ballroom and told me I had to stop talking and leave, the
janitor suggested that my speech might have been just a bit too long. But that's what
happens when you get me started talking about the similarities between the Fairness
Doctrine and net neutrality regulations.
Senator Warner, it is great to have you here tonight. It is always good to be able
to get some constituent face time with my home state senator.

Many thanks to Benjamin Jealous for being here tonight and delivering those
stirring and inspiring remarks. And Professor Jealous, it has been a pleasure meeting you
this evening.
And congratulations to Randall Stephenson on receiving the Institute's American
Horizon Award. Jennifer and I wish you and Mrs. Stephenson our best.
I'm also honored to have one of my FCC colleagues here tonight, the gentle lady
from South Carolina, Commissioner Mignon Clyburn.
And I would be greatly remiss if I didn't recognize my beautiful bride of 15 years,
Jennifer. She graciously weathers all of the consequences of being married to an FCC
commissioner, and the kids and I couldn't get anything done without her.
So, after all of those introductory remarks, under Patrick's time, place and manner
restrictions on my "free" speech, I now have, let's see ... 32 seconds to wrap up.
In all seriousness, I am quite humbled to accept the Media Institute's Freedom of
Speech award this evening. In preparing for tonight, I have been reviewing various
authors' works on the freedom of speech. I've read through books and articles about
colonial Americans' long quest for freedom and independence, starting with risking and
sometimes losing their lives to emigrate from oppressive, top-down regimes.
One book that I recently re-read was written by perhaps my favorite author, my
father. As many of you know, he was raised on a ranch on the Tex-Mex border without
running water, electricity or phone service. Yet with smarts, hard work and a bit of good
fortune, he went on to become one of National Geographic's best-selling authors.
Among my favorite books is the first I witnessed him research and write: The
Revolutionary War, America's Fight for Freedom. When I was 3 and 4 years old, Mom,
Dad, and we four kids all piled into our 1960s-era station wagon and relived the
Revolutionary War up and down the Eastern seaboard as Dad researched his book.
Those trips made our nation's struggle for freedom so vivid to me in my 4-year-old mind
that I once asked Dad if he had been friends with George Washington. I vaguely
remember an evasive answer.
With tonight in mind, however, something my father wrote more than 45 years
ago caught my eye. He described how the early colonists lived their lives far removed
from any government benefit or encumbrance. He went on to underscore that, at the start
of the Revolution, most colonists considered themselves to be British despite very little
contact with any form of the King's power. Even during the early hostilities that
eventually led to the war, the colonists, in my father's words, "were not begging for new
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liberties or for independent nationhood. Instead, they feared the loss of freedoms they
had already long enjoyed."1
A giant ocean that took two months to cross, plus a wild frontier, protected the
early European settlers from many state intrusions. It wasn't until the imposition of the
Stamp Act of 1765, as well as subsequent crackdowns against the freedom to peaceably
assemble and speak out against the sovereign, that thoughts of independence germinated.
Despite fighting to preserve individual liberties "endowed by our Creator," 25
years passed from the signing of the Declaration of Independence until the Framers were
able to codify the Bill of Rights in 1791. Part of the delay stemmed from the belief by
many that such rights were "self-evident." Fears abounded that an enumeration of rights
in a government document would actually result in limitations on liberty, or the eventual
elimination of rights altogether. And we should never forget that, shamefully, the Bill of
Rights originally did not apply to African Americans or women until subsequent
amendments were added decades later.
Nonetheless, the most sublime of the first 10 amendments is, of course, the First.
Instead of limiting rights, the Framers intended the Bill of Rights to act as a bulwark
protecting the sovereignty of the individual from state intrusion. Perhaps it is the First
Amendment's prominence atop the pile of all others, or the fact that it preserves an anti-
majoritarian right to dissent against those wielding political power, that has made it such
a target for attack over the years.
It is the First Amendment's role in protecting core political speech that often
generates the most controversy. In its nearly 220 years of existence, judicial
interpretations of its plain black and white words, "Congress shall make no law ...
abridging the freedom of speech, or of the press ..."2 have undulated on a jurisprudential
sea of swirling grays. What seemed so simple and clear on the parchment of 1791,
became complicated by ever-evolving facts before the ink was dry. Such is the virtue
and vice of American constitutional jurisprudence.
The nature of the right to speak freely appears to confuse some. There are those
involved in policy debates before the FCC, and elsewhere, who contend that a private
individual who restricts another private individual's speech violates the First
Amendment. This argument is wrong as a matter of constitutional law. The Supreme
Court has held that a bona fide claim of "censorship" must include "proof of state [or
federal] involvement."3 How to deal with speech deemed by a government to be
"unsavory" is what can lead to incremental erosion in this arena. All forms of
government have attempted to bring "balance," "fairness" or "neutrality" to speech all in
the name of serving some variation of the "public interest." As columnist George Will


1 BART MCDOWELL, THE REVOLUTIONARY WAR, AMERICA'S FIGHT FOR FREEDOM 20 (4th ed. 1967).
2 U.S. CONST. amend. I.
3 United Bhd. of Carpenters Local 610 v. Scott, 463 U.S. 825, 832 (1983).
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once wrote, "For several decades in America, the aim of much of the jurisprudential
thought about the First Amendment's free-speech provision has been to justify
contracting its protections. Freedom of speech is increasingly `balanced' against
`competing values.' As a result, it is whittled down, often by seemingly innocuous
increments, to a minor constitutional afterthought."4
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.
With that in mind, if you look around the globe, it is not private parties who are
causing crises by infringing on individuals' speech rights. It is governments. Yet nearly
every country on earth "guarantees" the freedom of speech. In fact, out of about 196
countries in the world, 173 of them have written laws ostensibly "protecting" the freedom
of speech.
For instance, in Myanmar, or Burma, its constitution ensures, "freedom of speech,
expression and publication to the extent that the enjoyment of such freedom is not
contrary to the interests of the working people and of socialism."
Article 67 of the North Korean constitution states, "Citizens are guaranteed
freedom of speech, the press, assembly, demonstration and association." By the way,
North Korea's free speech guarantee is virtually identical to China's a "coincidence" to
be sure. China is so much in favor of free speech that it has proposed expanding its
version of freedom to the Internet in a white paper chapter entitled "Guaranteeing
Citizens' Freedom of Speech on the Internet."5
Given this written guarantee, what's all this fuss over China and Internet
freedom? Well, it seems to be a law of jurisprudential physics that the volume of fine
print following an enumerated right is inversely proportional to the strength of that right.
Case in point: the Chinese government goes on to say that while all of this talk of Internet
freedom is important, "no organization or individual may produce, duplicate, announce or
disseminate information" on the Internet that could have the effect of "subverting state


4 George F. Will, Less Freedom, Less Speech, WASH. POST, Feb. 26, 2006,
http://www.washingtonpost.com/wp-dyn/content/article/2006/02/24/AR2006022401800.html.
5 INFORMATION OFFICE OF THE STATE COUNCIL OF THE PEOPLE'S REPUBLIC OF CHINA, THE INTERNET IN
CHINA, III. GUARANTEEING CITIZENS' FREEDOM OF SPEECH ON THE INTERNET (June 8, 2010),
http://www.china.org.cn/government/whitepaper/2010-06/08/content_20207994.htm (last visited Oct. 17,
2011). The full contents of the white paper can be found at
http://www.china.org.cn/government/whitepaper/node_7093508.htm (last visited Oct. 17, 2011).
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power," "damaging state honor and interests," "jeopardizing state religious policy,"
"spreading rumors" or that is "forbidden by laws and administrative regulations."6
This Chinese version of the public interest standard resulted in a visit in late
August by Liu Qi to the parent company of the Weibo microblogging service. Mr. Liu is
Secretary of the Beijing Municipal Party Committee and a member of the Communist
Party's powerful Politburo.
It seems that 2-year-old Weibo's phenomenal growth to well over 200 million
users has alarmed the government because it has become an easily accessible platform for
Chinese citizens to express their political opinions. Such expressions could "subvert state
power." According to the Wall Street Journal, an anonymous source who attended the
meeting between Mr. Liu, his entourage and Weibo executives said, "recent major events
... have made the government a little bit nervous about Weibo," adding that Mr. Liu
seemed "unsatisfied when told it typically takes Weibo censors two hours to identify and
remove `fake news.'"7 Ultimately, it is the government that determines what constitutes
"fake news." Currently, the Chinese government is considering requiring the company
"to hire more human censors to take down controversial content." Word has it that
Weibo has been, shall we say, somewhat subdued by Mr. Liu's visit. But that's just a
rumor and I may be violating Chinese law at this very moment.
Of course, my point is 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. Regulation only seems to grow. Speech
regulation can come with many justifications, some of which are noble, such as
protecting children. Nonetheless, we should remain especially vigilant and battle-ready
when it comes to arguments for the "reasonable" regulation of political speech. Why is it
that governments never sell new rules as being "unreasonable"? As Rod Smolla wrote in
his 1991 article with a title shamelessly designed to pique the interest of Virginia history
buffs such as myself, "A Conversation with James Madison," President Madison "says,"
"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.
We stand alone in our radical commitment to freedom of speech and press."8
And in that vein, I'd like to add: Thank you, but journalism does not need the
government's "help."


6 INFORMATION OFFICE OF THE STATE COUNCIL OF THE PEOPLE'S REPUBLIC OF CHINA, THE INTERNET IN
CHINA, V. PROTECTING INTERNET SECURITY (June 8, 2010),
http://www.china.org.cn/government/whitepaper/2010-06/08/content_20207978.htm (last visited Oct. 17,
2011).
7 Josh Chin & Loretta Chao, Beijing Communist Party Chief Issues Veiled Warning to Chinese Web Portal,
WALL ST. J., Aug. 24, 2011,
http://online.wsj.com/article/SB10001424053111904279004576526293276595886.html.
8 Rodney A. Smolla, A Conversation with James Madison, 77 A.B.A. J., Aug. 1991, at 50, 52.
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As we leave here tonight, I hope you will remember the words of three historic
figures. The first is none other than one of the most quotable Americans of all time,
Benjamin Franklin. On this topic he wrote, "Whoever would overthrow the liberty of a
nation must begin by subduing the freeness of speech."9
The second is from Senator Warner's and my fellow Virginian, and my favorite
President, my father's friend, George Washington: "If the freedom of speech is taken
away then dumb and silent we may be led, like sheep to the slaughter."10
The third is from someone I've never quoted before, and I may never do so again:
"When one makes a Revolution, one cannot mark time; one must always go forward or
go back. He who now talks about the `freedom of the press' goes backward, and halts
our headlong course towards Socialism."11 That's Vladimir Ilyich Lenin. Ol' Vlad, the
ultimate statist, apparently was quite serious. And evidently he had read Franklin and
Washington.
We should heed all three of these warnings. Otherwise, by seemingly innocuous
increments our freedoms may be led to the slaughter. And don't be duped. As Rod
Smolla can attest, sometimes the act of defending the freedom of speech can be confused
with endorsing a terrible message or odious messenger. It is a tortuous dilemma for
many to protect the rights of those with whom we disagree profoundly. Yet it is the
sacred nature of the First Amendment that this right be for all, including our adversaries.
Let us remain eternally vigilant and never take our liberty for granted.
Thank you again for your generosity in presenting me with this award. Jennifer
and I are honored and humbled. Good night.


9 Quotations: First Amendment, Censorship, and the Freedom to Read, AM. LIBR. ASSOC.,
http://www.ala.org/ala/aboutala/offices/oif/ifissues/issuesrelatedlinks/quotations.cfm (last visited Oct. 17,
2011).
10 Our Mission, GEORGE WASHINGTON SOC'Y, http://www.georgewashingtonsociety.org/Mission.html (last
visited Oct. 17, 2011).
11 Vladimir Ilyich Lenin Quotes, DICTIONARY.COM,
http://quotes.dictionary.com/author/vladimir+ilyich+lenin (last visited Oct. 17, 2011).
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