John Armor

How about cell phone communications? Some of them contact with satellites in stationary orbit over twenty-two thousand miles above the Earth. But most connect by public airways to surface towers. Likewise, almost all forms of Internet access use public airways to communicate at some point in their routing. Every time phone calls or Internet communications cross into the public airways, they do so on federally assigned frequencies to avoid interference and failures. But they’re still using public airways.

Some arguments in the law fail because when they are thought through, they become not only absurd but dangerous. So it is with the public airways argument. Today, the vast majority of all communications by all 300 million private citizens in the United States utilize the public airways.

Those concerned about what is flying through the public airways could learn a lesson from NASA. It regulates the geosynchronous satellites that carry TV, telephone, and Internet communications - but it only regulates the placement of those billion-dollar satellites and their frequencies. NASA makes no attempt to regulate the content of any of the communications facilitated by those satellites.

The obvious necessity for the government to control technical matters does not justify interfering in content. However, the FCC is making noises about running in that very direction by proposing new broadcast content controls through "diversity" and "localism." Right now, America is experiencing a wave of taxpayer tea parties and it may not be long before we will see citizen uprisings over government threats to censor our airwaves and Internet, as well.

When the First Amendment was written, ink on paper was the only known form of mass communication. But the English language has since recognized that "press" means all forms of mass communications. The courts and certain members of Congress need to catch up to that reality.

John Armor

John Armor practiced First Amendment law in the US Supreme Court for 33 years and wrote this article at the behest of the American Civil Rights Union.