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By Marjorie Heins

[This talk was given at the University of Buffalo Center for the Arts and UB Law School Baldy Center for Law & Social Policy, Workshop on "Government Policy, Cultural Production, Personal Privacy," Sept. 10, 2004]

Thank you for inviting me to participate in this fascinating, eclectic, cross-disciplinary exploration of "Government Policy, Cultural Production, and Personal Privacy." My contribution, "Structural Free Expression Issues," is, I admit, not the sexiest one in the annals of artistic freedom and censorship. A few years back, when I worked for the American Civil Liberties Union and later began the Free Expression Policy Project, I spent a lot of time thinking and talking about the somewhat racier subjects of sex and violence in American culture. But, as FEPP's work has developed, I've discovered that structural issues - how our copyright system is designed; who controls the mass media; how information is manipulated through funding and benefit programs - also have profound implications for free expression.

That is, who gets to speak the loudest and oftenest in America? In what forums? Whose voices are muted or barely heard? What information is suppressed, marginalized, or difficult to find? If, as the Supreme Court said more than 50 years ago, the First Amendment "rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public,"1 then the answers to these questions are, in the long run, more important than whether or not a particular art exhibit is censored, the manufacturer of a particular violent video game is sued for allegedly inspiring a crime, or the Federal Communications Commission fines a TV station half a million dollars for the Janet Jackson "wardrobe malfunction."

Structural Issues: The Copyright System

Today, I want to address three structural free-expression issues. The first involves our current system of copyright control. Recent changes in law and technology have distorted the traditional balance between the "exclusive right" that the law grants to copyright owners and important free expression "safety valves" within the law, such as fair use and the public domain.

For example, the Copyright Clause of the Constitution authorizes Congress to grant copyrights for "limited times"; the first copyright law set the term at 14 years. The point was to give authors and inventors enough incentive to create by allowing them control over the sale and distribution of their works for a short time; then to move these creations into the public domain, where they could be freely borrowed, copied, and built upon to produce still more products of human ingenuity and imagination.

Slowly but steadily, Congress has undermined this "limited time" provision of the Constitution until, with its 1976 copyright law, it stretched the term of control to the life of the author plus 50 years for individuals and 75 years for corporations. Congress added another 20 years to this already generous allotment in 1998 with its "Sonny Bono Copyright Term Extension Act," sometimes called the "Mickey Mouse law" because of the Disney Company's heavy lobbying for its passage. The copyright on the immortal cartoon rodent would have expired in 2003 if not for the latest term extension.

What does this abandonment of any reasonable interpretation of the constitutional mandate of "limited" copyright terms mean for art, culture, scholarship, and free expression? Let me give one example, from the many amicus curiae briefs submitted to the Supreme Court when it considered (and rejected) a constitutional challenge to the Sonny Bono law. I'm reading from the Free Expression Policy Project's report, called "The Progress of Science and Useful Arts": Why Copyright Today Threatens Intellectual Freedom. The College Art Association, the National Humanities Alliance, and other groups whose members study visual art explained [in their brief] that

scholars assembling texts and databases often cannot locate the owners of copyrights in educationally valuable letters, songs, photos, and other documents. Indeed, most authors have neither the time nor the financial resources to do this gritty work of tracking down copyright permissions - though publishers generally expect them to. Without permissions, most publishers won't include the materials. As a result, said the College Art Association, there are "gaping holes" in such documentary compilations as The Video Encyclopedia of the Twentieth Century, a resource popular with researchers and teachers, and "Who Built America?," an award-winning CD-ROM series for high school and college students containing primary sources from the 1930s. The compilers of "Who Built America?" had great difficulty finding copyright owners, and those they found sometimes wanted large fees even where the works in question had no commercial value. Thus, they were forced to omit the Depression Era demagogue Huey Long's campaign song, "Every Man a King," as well as many clips from popular films of the time. They substituted government documents or other works in the public domain, but the result was an unbalanced picture of the era.

The brief described an art historian who was refused permission to use a photo of Pablo Picasso and his daughter because the copyright owner disagreed with the historian's analysis of Picasso's work. A publisher that planned a new critical edition of Cane, by the Harlem Renaissance author Jean Toomer, in part to counterbalance the bias against Toomer reflected in the only available edition, could not go ahead because of the copyright term extension on Cane. "In the past," the brief said, "researchers could anticipate and plan on new material becoming available for unrestricted use on a constant and continuing basis." But the law's 20-year "moratorium on the public domain" upsets those expectations and penalizes scholars, museums, teachers, and historians. All this in the interest of further enriching a relatively few copyright owners "who already have received significant value from their ownership under the preexisting term."2

As this excerpt makes clear, it is not only the generalized effects on art and culture that are of concern when the public domain is frozen due to Congress' continuing extensions of the "limited time" of copyright. It is also the ability of copyright owners to censor ideas they don't like, as illustrated by the examples of Jean Toomer's Cane and Picasso's family photographs.

Congress created another structural problem in 1998 with the Digital Millennium Copyright Act, which essentially gives the force of law to "digital rights management" technologies, developed by media corporations to prevent unauthorized access to copyrighted works. The DMCA makes it a crime to circumvent such technologies, even for purposes of "fair use" under copyright law. Fair use is an important free expression safety valve that allows limited copying for such purposes as scholarship, journalism, commentary, and parody.

So, for example, a scholar who wants to copy a few frames of a film classic to show her class - a legitimate fair use - violates the DMCA if she circumvents encryption in order to access and copy even a small part of the film. Courts have recognized that the DMCA cripples the exercise of fair use, but so far have upheld the law anyway, as a justified congressional response to industry fears of illegal copying and lost income.

It's difficult to measure the cultural impact of these changes in the structure of the copyright system, but just as the increasing consolidation of the publishing industry in ever-fewer hands, and its drive for ever-larger profit margins dramatically affects what books are promoted and distributed, so the difficulties of our film scholar and millions like her in exercising their fair use rights have wide-ranging systemic effects.

The Structure of Mass Communications

Mass media consolidation is my second example of a structural free expression issue. The FCC's decision last year to relax its rules limiting the percent of national audience that any single media company can reach, and restricting various forms of media cross-ownership and multiple ownership in local markets, gave rise to widespread protests; this June, a federal court overturned nearly all of the FCC's order. These battles over further media consolidation of an already dangerously concentrated industry, in which six corporate conglomerates control nearly 80% of network television content and one company, Clear Channel, owns more than 1200 radio stations,3 are important, but there is a more basic problem with our current mass media structure.

The problem starts with a system of broadcast regulation that first proclaims the airwaves to be a national resource, communally owned, that should be dedicated to serving the public interest; then turns over virtually all of the broadcast spectrum to commercial entities that are essentially in the business - to use the straightforward terminology of the industry - of delivering eyeballs to advertisers. Radio and TV companies that enjoy the scarce privilege of a broadcast license are supposed to serve the public interest - to deliver art, entertainment, and news from a range of viewpoints, to cover issues and events of local interest, and to reflect the cultural diversity of our population. But these lofty principles inevitably conflict with both the profit-maximizing goals of media corporations and the political interests of their owners, and attempts to enforce them have been both intermittent and ineffective.

A mandated few hours per week of so-called educational programming, for example, and a statutory requirement that broadcasters give equal time to candidates for office, do not go very far when the TV broadcaster still chooses the program content, reduces the amount of time spent on political reportage (as opposed to airing lucrative but often deceptive campaign ads), and suppresses anything that its owners deem politically inconvenient. Michael Moore had the wherewithal to find other means of reaching the American public when Disney refused to distribute his Fahrenheit 9/11 because the company did not want to offend Florida Governor Jeb Bush, but most media corporations' forays into political self-censorship do succeed in suppressing or marginalizing controversial speech. The examples are legion: from Sinclair Broadcasting, which owns 62 TV stations, refusing to air a Nightline program focusing on American military deaths in Iraq, to Viacom/CBS's decision to pull the Ronald Reagan miniseries from its primetime schedule, to Time-Warner-owned CNN's rejecting an ad from the Log Cabin Republicans urging tolerance on gay issues.4

The solution must start where the problem began: not with "deregulation," as free-market theorists suggest, but with the re-structuring of a broadcast system that turns over the public airwaves almost entirely to for-profit corporations.

Another current battle over media regulation involves cable broadband Internet access. The issue here is whether this increasingly popular means of getting online will be treated as a "telecommunications service" like the phone company, and therefore a common carrier which cannot control the content of speech that goes over its wires, or as an unregulated "information service," which can exercise content control, discriminate against Web sites it dislikes, and refuse to allow other service providers to sell Internet access over its cables. The FCC supports the cable industry's claim to be an "information service" for purposes of broadband access; the Ninth Circuit Court of Appeals recently overturned that FCC ruling, and both the government and the cable industry are asking for Supreme Court review.5 It does not take a rocket scientist to see that if the FCC wins this case, monopolistic cable companies could quickly transform the Internet from a worldwide soapbox with easy access to vast and diverse resources, into another mass medium dominated by games, shopping, and homogeneous, often superficial commercial news and entertainment.

The Structure of Government Funding

My last structural free expression issue involves conditions on government benefits or funding. Because the First Amendment limits government's ability to control speech directly, it often uses this carrot-and-stick approach. That is - to take one well-known example - Congress passes a law prohibiting funding for art that is thought to violate "general standards of decency" or the "diverse beliefs and values of the American public." In 1998, the Supreme Court upheld this law restricting the National Endowment for the Arts' discretion in awarding grants. The Court reasoned that although the First Amendment would not allow Congress to impose these sorts of ideological restrictions directly, they are perfectly reasonable criteria for federal spending.6

This was, perhaps, a prudent decision, given the highly charged politics of arts funding. And it is true, as opponents of free expression in arts funding never tired of pointing out, that artists are free to create whatever they want "on their own time, and their own dime." But there is no denying that "decency" and "respect" criteria for federal arts grants have a widespread systemic effect on the visibility of controversial art within our culture - indeed, on the very financial ability to create it. Government grants leverage significant amounts of private money, not to mention prestige.

And although to many, the Court's decision seemed reasonable in the context of arts funding, just try applying it to a government-funded institution such as a university. A law prohibiting all faculty, staff, and resources at SUNY Buffalo from engaging in any expression that violates "general standards of decency and respect for the diverse beliefs and values of the American public" would have profoundly negative effects on academic freedom, which is at the center of a university's mission.

Another funding law, mandating Internet filters on all computers in libraries that receive federal aid for Internet connections, or even just the benefit of a federally mandated e-rate discount, was also upheld by the Supreme Court last year - reversing a lower court decision that detailed the irrationality of filters' operations, and the tens of thousands of valuable Web sites they block, even at their narrowest settings.7

This was Congress' third attempt to restrict expression online, and the irony is that the Supreme Court struck down the first two even though they would have had much less sweeping censorship effects than the third law, mandating Internet filters. The reason for the difference: the first two laws directly banned speech deemed "indecent" or "harmful to minors"8; the third technically did not ban anything - it simply gave libraries a choice: if you think Internet filters are dangerous tools that contradict the very core of a library's mission, the answer is simple: don't accept e-rate discounts or government funds.

Of course, it is an illusory choice for many libraries, especially the ones in lower income communities for which the e-rate was created. Building censorship into the structure of funding and other benefit programs enables government to establish a systemic regime of disfavoring and disadvantaging non-mainstream and provocative art and ideas more pervasively than it could ever do by means of direct censorship.


The same sort of structural free expression problems exist, as I've suggested, under the systems in place to govern copyright and the mass media industry. The challenge today is to understand how these structures impact free expression, and find ways to promote systemic change.


1. Associated Press v. United States, 326 U.S. 1, 20 (1945).

2. Brief of the College Art Association, et al. as Amici Curiae in Support of Petitioners, Eldred v. Ashcroft, No. 01-618 (S.Ct., May 20, 2002), pp. 13, 7-10 (quoted in "The Progress of Science and Useful Arts": Why Copyright Today Threatens Intellectual Freedom). The other signers of this brief were the Visual Resources Association, National Humanities Alliance, Consortium of College and University Media Centers, and National Initiative for a Networked Cultural Heritage.

3. See Free Press, "Media Ownership Rules,"; Leonard Hill, "The Hijacking of Hollywood," in New Incorporated (ed. Elliot Cohen) (forthcoming, Prometheus Books, 2005), p. 220.

4. Bill Moyers, "The Media, Politics, and Censorship," (May 10, 2004)(Sinclair); Leonard Hill, "The Hijacking of Hollywood," in New Incorporated (ed. Elliot Cohen) (forthcoming, Prometheus Books, 2005), p. 224 (Viacom/CBS); Mark Memmott, "Gay GOP Group Criticizes CNN's Rejection of Ad," USA Today, Aug. 31, 2004.

5. Brand X Internet Services v. FCC, 345 F.3d 1120 (9th Cir. 2003), petitions for certiorari filed Aug. 27 and 30, 2004 (S.Ct. Nos. 04-222, 04-281). Update: In June 2005, the Supreme Court upheld the FCC's position that broadband carriers are not "telecommunications services." See Two Defeats and a Silver Lining.

6. National Endowment for the Arts v. Finley, 524 U.S. 569 (1998).

7. United States v. American Library Association, 123 S.Ct. 2297 (2003).

8. Ashcroft v. American Civil Liberties Union, 542 U.S. 656 (2004) (affirming a preliminary ruling that a criminal ban on "harmful to minors" speech online is probably unconstitutional); Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) (striking down a criminal ban on "indecent" speech online).

The Free Expression Policy Project began in 2000 as a project of the National Coalition Against Censorship, to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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