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However, before the credits roll on the heart-warming story of an ever-faithful Congress... scamping out the dastardly cultural polluters, we must observe the entrance of an un-right-wing-scripted walk-on.

First Amendment (full voice): "Congress shall make no law ... abridging the freedom of speech, or of the press..."

For many people (present keyrattler included), this eighteenth-century Founding Cameo is a show-stopper. The language is a beautifully sculpted bulwark, set in history and weather-beaten smooth to stop almost any role of government in controlling what people can say, write, or express. Limits to freedom of speech have been recognized: the classic example is shouting "fire" in a crowded theater. Still... beyond the most immediate and obvious threats to public safety, government censorship is a slippery slope. The First Amendment is our friend.

But is this the end of the discussion from a Constitutional point of view? The "cultural pollution" question has been looked at from the "free speech" perspective. Is there any other Constitutional issue that bears on the ability of our Federal government to act in the public interest to oppose "cultural pollution"?

Consider this Constitutional passage, one of the powers of Congress, enumerated in Article I, Section Eight: "...To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries..."

This brief section gives Congress Constitutional power to provide patent and copyright protection. From an economic point of view, patent or copyright holders have monopoly powers: the ability to unilaterally determine both the market price and the quantity produced of a specific product. In short, each patent or copyright gives someone the right to be a monopoly producer of one specific, unique product -- a movie, or an invention.

Note this well and carefully Hollywood/TV Inc. -- no individual or company has a direct Constitutional right to the mini-mouse-monopoly established by a patent or a copyright. Although Congress has the Constitutional power to establish patent and copyright mini-monopolies, Congress has no obligation to provide any patent or copyright protection. The Constitution is also specific about the intent in giving Congress this power: it is given "to promote the Progress of Science and useful Arts..."

For the purpose of argument, let's accept the claim that Hollywood and TV have an almost unlimited "free speech" right to produce whatever they want. This says nothing about their right to what amounts to a government subsidized monopoly of every product they produce. Let's change the focus of the "cultural pollution" debate to this question:

Resolved: that the Federal government provide a government-protected monopoly to anyone who wants to produce cultural pollution.

Step right up now... who wants to take the affirmative on this one? Should it be our government's policy to give any cultural polluter the use of our Federal judicial and police power -- including the power to imprison -- for the purpose of extracting monopoly profit from their pollution?

Don't be shy! Let's ALL stand up now... for the MONOPOLY RIGHTS OF CULTURAL POLLUTERS!!!

At this point, Hollywood-TV Inc. may want to change the subject... back to that good old First (We're Number One!) Amendment. Let's not let them channel-surf the Constitution. We're not talking about freedom of speech. We're talking about feedom of speech.

What could Congress do in the context of their Patent and Copyright power, to protect our country from cultural pollution? Some brief background information is needed here. First, patents and copyrights are currently not issued directly by Congress, they are issued through the Department of Commerce. No "content" or "G-rating" test is required as a condition of obtaining a patent or copyright. Second, younger readers may need to know that in the early 1900's monopolies were called trusts. "Trustbusting" is a term for political action or legislation to break up monopolies.

The implicit assumption of our system has been: if it's new it might be useful -- we will always give the benefit of the doubt (any doubt) regarding usefulness. This approach has served us well for many years. However... if you accept that "cultural pollution" is in fact a serious problem, we need to consider what alternatives there might be to issuing copyright and patent protection without regard to content. Let's consider three possible TrustBUSTER approaches that Congress could take to break up cultural polluter monopolies.

First, Congress could simply repeal all copyright law, and put everything new into the public domain. This would be the most drastic approach -- it seems very unlikely.

Second, it might be possible for Congress to amend current copyright law to provide for a content review of movies by a Board or Commission before they could receive copyright protection. As with arts grants, we need to keep in mind that we are not talking about anyone's right to produce something per se -- we are only talking about who may be asked (and asked in a way that makes it hard to say no...) to subsidize the activity. Although the form of the subsidy is different, both grants and government-provided copyright monopolies are subsidies.

Third, if we look at the Constitutional language closely, it seems clear that when push comes to shove, Congress itself has the direct Constitutional power to write movie reviews with teeth. Specifically, there does not appear to be any restriction on the ability of Congress to issue, or deny, patent or copyright protection directly, on a case-by-case basis. Alternatively, Congress could deny any patent or copyright protection to a specific company for a period of time, if that company was found to be a cultural polluter.

Congress is in a Constitutional position to make the following statement to Hollywood and TV: "We have free speech in this country. If you want to improve our society and our culture out of the goodness of your heart, (and even if you don't want to do this), you are free to make and sell any movie or TV program you choose to make... whether we like it or not.

"HOWEVER... if you want a specific movie, or a specific TV program, to enjoy our deluxe, premium,

Congressionally Approved copyright protection... you must present it for review to our House and Senate Clean and Wholesome Movies Committees. We will decide, on a case by case basis, whether or not your movie or TV program promotes the progress of 'useful Arts', and for that reason merits a government subsidy. Furthermore, if your company is held by Congress to be a cultural polluter, all copyright applications from your company will be automatically denied for up to five years."

Hollywood/TV Inc... hang up that cell phone and PULL OVER. The Congressional TrustBUSTERS are on... your... case.

"This just in... Congressional TrustBUSTERS (Article I Section) Ate Hollywood."

Trust... BUSTERS!!!

Copyright © 2000, Robert S. Carney Jr., 4232 Colfax Ave. So., Minneapolis, MN 55409. All rights reserved.

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