The words “shall not” ring out as loudly–and about as often–from the first ten amendments to the Constitution as they do from the Ten Commandments. In the amendments, however, they do not ring out against the actions of individual people. Rather they resound against the Federal Government of the United States. Even when used in the passive voice, e.g. “the right of the people…shall not be infringed,” “the right of the people…shall not be violated,” these Constitutional “shall nots” target the government.
When we speak of the first ten amendments, we refer, of course, to the U.S. Bill of Rights. Reading them over gives one a refreshing taste of a time when Americans knew they ruled over their own government. They would draw up the plans for their government, giving it only those powers they explicitly enumerated in its Constitution. Having structured the government in the words of the Constitution itself, they quickly followed with their laundry list of things it “shall not” do.
The founders acted like the strict father who lends his son the keys to the car, but can’t resist following his gracious act with, “Please don’t take this as a license to hang out at the bar, come home late, annoy the neighbors, forego your homework and chores…” Jefferson wrote to Madison, “A bill of rights is what the people are entitled to against every government on earth…and what no just government should refuse or rest on inference.”
Right at the top of the list of “shall nots,” founders prohibited the government from abridging our rights to worship, speak, publish and congregate as we please. Lots of ammo in that first volley. The exercise of these rights had been hard won against earlier historical trends.
When it came to publishing in particular, the case of John Peter Zenger had established the principle of a free press in America only 53 years earlier. The idea that this freedom grew from a universal human right was very young. Yet the founders felt this particular freedom necessary for the continued limitation of government power. They wanted to hand us a way to continue to say thou “shall not” to our government. Jefferson to Madison again: “Were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.”
In our century, we’ve allowed the government far more power to regulate electronic media than the founders allowed the federal government over their contemporary press. The reasoning runs thusly: radio and television use the limited public resource called the electromagnetic spectrum. Therefore, the government must act on behalf of the people to make sure that all who use this resource serve the public’s best interests.
But with government and power, as Jefferson knew, if you give it a watt it’ll take a kilowatt. The FCC’s regulation of cable TV systems provides an interesting case in point. Attempting to protect the public interest, the FCC made a ruling in 1962 that only served to protect the broadcasters from cable competition. The effect? A stifling of innovation and diversification of programming that lasted until the 1984 Cable Communications Policy Act, which lightened the regulatory load placed against the cable companies.
Today the prospect of far greater channel capacity spreads on the horizon before us. Between fiber optic cable, video compression schemes, Video Dialtone technology, and Direct Broadcast satellite, every video might find its channel.
Videomakers who’d like to find audiences for their work should pay attention.
Still we face a question of means to the end. Is it better to get there by allowing the government to regulate the growing media in “the public’s interest” or better to tell the government it “shall not” get involved? The point’s debatable. Still, the proliferation of channels is quickly bringing us conditions for electronic media as open as those held by the print media at the nation’s founding. That was the time when Americans told their government that the best way to insure freedom of expression was to make no law abridging it.
Stephen Muratore is Videomaker‘s Editor in Chief.