Challenge for computer era: grant all medial full freedoms.

Twenty-five years ago, the new medium of promise was television. TV sets had been commercially available for about 20 years. Broadcast content had shifted from Lucy and Howdy Doodle to Cronkite's news, Laugh-In's sophistication and public television's cultural programming. Television journalism had begun to present a serious challenge to print.

With respect to law and public policy, however, the Supreme Court, approximately 25 years ago, upheld Congress's determination to treat broadcasting differently from all other communications media. As a result, this medium of promise was saddled with intrusive governmental restrictions, including significant limitations on content, controversy and creativity.

Today the new medium of promise is the computer. Personal computers (which have been available for about 20 years) have improved tremendously in memory, speed and capabilities. Computer content has shifted from simple games and writing projects to electronic research and publishing and worldwide discourse on the Internet. Instantaneous, creative, fact-based, multi-media worldwide electronic person-to-person communication is becoming a reality.

And with respect to law and public policy? Congress is poised, and the Supreme Court may well be inclined, to treat computer communications differently from all other communications media. Fulfillment of the future promise of this medium may well be prevented or limited, by laws being written today.

Learn from the past

If, as Santayana suggested, those who do not study the past are condemned to repeat its mistakes, before we begin regulating computer communications we ought to study the development of the regulation of broadcasting - and even the Supreme Court's whole philosophy with regard to new and different communications media.

Though broadcasting policy evolved over many years, one of the crucial steps occurred about 25 years ago with the Supreme Court's decision in Red Lion Broadcasting Co. v. Federal Communications Commission. There, the Court upheld the "fairness doctrine," a government rule that, in essence, imposed a government-controlled editorial policy on every broadcaster in the nation. The rule controlled how all controversial issues would be handled on radio or TV - with equal amounts of time allocated to each "side" of an issue (as determined in hindsight by the agency), without regard to the broadcaster's own news or editorial judgment.

The rationale for Red Lion was that because broadcasters transmitted their signals over the electromagnetic spectrum, which Congress deemed to be a public resource, broadcast outlets were presumed scarce, and broadcasters had to be required to act "in the public interest." Congress and the FCC would enforce "public interest" broadcasting using the fairness doctrine, and other techniques, including:

* the personal attack rule, which governs attacks on the character of an identified person made during discussion of a controversial issue;

* political advertising requirements, which permit political candidates special access, rates and freedoms in their broadcast advertisements;

* an absolute ban, during normal waking hours, of legal non-obscene content which is nonetheless judged by the FCC to be "indecent" and hence potentially harmful to children;

* other content controls including restrictions on certain kinds of news, documentary and fictional programming involving such things as staging, warnings and frightening events.

All of these restrictions applied to broadcasting would have been illegal if applied to print. The Supreme Court's 1974 Miami Herald v. Tornillo decision explicitly rejected any "fairness doctrine" for print as inconsistent with "First Amendment guarantees of a free press as they have evolved to this time."

Why then do we permit different regulations on broadcasting and print? Why doesn't the First Amendment as it has evolved to this time apply to broadcasting?

A double standard

These are good questions, which the Supreme Court has never adequately answered. In Red Lion, the Court stated: "Differences in the characteristics of new media justify differences in the First Amendment standards applied to them." This statement, however, derived from a much different statement in Joseph Burstyn v. Wilson, a 1956 decision that first recognized motion pictures as a form of free expression: "Each method [of expression] tends to present its own peculiar problems. But the basic principles of freedom of speech and the press, like the First Amendment's commands, do not vary. These principles . . . make freedom of expression the rule."

The shift from unvarying First Amendment principles and commands, in 1956, to varying First Amendment standards, in 1969, was a significant and drastic change. It permitted a First Amendment double standard - different freedoms from content regulation in different media. Simply put, each media became a law unto itself.

Since Red Lion, this double standard has been expanded to media that, unlike broadcasting, are not even arguably scarce, like cable television (which is subject to many broadcasting and special regulations) and direct satellite broadcast services (which, though not scarce, are subject to broadcasting regulations).

Is Red Lion still effective today, 26 years later? Yes and no. Though it has never been overruled and is still formally "good law," in reality Red Lion no longer rules the jungle of broadcasting policy; it is a lame and discredited pussycat of a policy.

First, Red Lion's scarcity rationale is demonstrably erroneous in our modern media world, with ubiquitous, diverse and expanding broadcast outlets and programming. If anything, print is the scarce resource: has anyone seen a two-newspaper town recently? Second, the fairness doctrine itself - the rule defended and upheld in Red Lion - was abolished a decade ago. Since its abolition, current events programming has flourished, and there is far more coverage of all sides of all controversial issues than ever before.

What remains of Red Lion is the double standard of media regulation - the "each media is a law unto itself" principle that exalts form and fears over consistency as to content.

More intrusive regulations

The next medium in line for possible "law unto itself" treatment is computer communications. In particular, Senator James Exon (D., Neb.) has proposed applying broadcast-style intrusive regulations rather than print-style freedoms to the content of the Internet and other computer networks and communications. The Senate passed the Exon amendment this summer. Other initiatives to regulate content of computer communications are pending.

If the story of broadcasting regulation over the last 25 years has taught us anything, it is that we must be wary of the argument that because a new medium is different from familiar ones, it must be regulated differently.

Of course, every medium is different; this is a truism: To understand why we regulate on this basis, we must recognize another truth: Every new medium of communication seems revolutionary to those accustomed to the status quo. We often seek to control new media out of fear, not need. As one commentator put it, new technologies are often born in captivity. This has happened with print, with motion pictures, and with broadcasting. It may be about to happen with computers.

One policy analyst has vividly illustrated the problem. With current technology one could conceivably set up five television sets in one room, each connected to a different input device: broadcast TV. cable TV, a VCR, direct satellite TV and a TV signal transmitted ever a telephone line. It could be arranged to have each set simultaneously portray the same content - say, a movie with some sexual content. Because of the current philosophy of regulating different media differently, even though each set would show the very same picture and sound, four different regulatory standards would apply. Content that was proper and legal on one or two of the sets could be illegal on adjoining sets.

Perhaps we are hardened to this example because we are accustomed to intrusive regulation of broadcasting. But varying regulation based on the means of transmission can endanger print, too. Modern electronic communications are leading to a convergence of media. Print and images (such as are contained in traditional newspapers) may be transmitted electronically. If the "law unto itself" model remains in effect, newspapers transmitted over the airwaves could be subjected to broadcasting regulations such as political advertising rules, and newspapers transmitted by cable could face controls such as public access requirements.

This system does not make sense. Content is content. Content that is legal in print should be legal in television, on radio and over telephone lines or computer networks. Allowing policy to be set based on fears of new media leads to inconsistency, government censorship and intrusion, and waste of promise and potential.

Fear of new media

History teaches that fears of new media are inappropriate and the benefits of new media spring from use, creativity and freedom, not from controls and regulations.

Print was feared by many when the printing press was invented. But today we revere not "printed by authority" newspapers but rather creativity and ideas born of true press freedom, like those found in Benjamin Franklin's Poor Richard's Almanac, Horace Greeley's New York Tribune and William Lloyd Garrison's Liberator. In books we learn most not from government-edited or censored orthodoxy but from products of freedom and controversy, like Huckleberry Finn and Leaves of Grass, and works of writers like H.L. Mencken, James Joyce and Allen Ginsberg.

Movies were feared as presenting unique dangers of corruption and evil when they began, and both direct and indirect regulation ensued. But who would seek to reject the creativity and freedom in today's moviemaking, in Hollywood and hundreds of other locations, in favor of a return to government boards of censors, blacklists and witch hunts, and inflexible industry codes written in the dark shadow of government threats of censorship?

Our system of regulating based on the medium of transmission rather than the content of the message should be abolished in favor of a unitary policy, recognizing full First Amendment freedoms for all media. This is the policy the Supreme Court alluded to 40 years ago, when it noted, "The basic principles of freedom of speech and the press do not vary."

Computer communications will not, any more than television or other media, bring paradise on Earth. Every medium does present unique problems, and disappointments as well as promises. But the computer medium has great potential for enhancing person-to-person communications, for making facts and resources readily available, for promoting discussion, thinking and progress, and for enhancing the availability, convenience and content of all other media.

This full potential cannot and will not be realized unless we break down legal and regulatory distinctions among media, and afford full First Amendment freedoms to all communications, regardless of the particular medium on which they are carried.

Mark Sableman is a lawyer who concentrates in media law. A former newspaper reporter, he now practices with Thompson & Mitchell in St. Louis.