Media and Communications Policy : Media Policy & First Amendment Foundation : The Media Institute : Free Speech, Media Regulation, Content Controls

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Amid their other problems, broadcasters now have a new one: the FCC’s recently appointed Scholar in Residence, Stuart Benjamin, a law school professor at Duke University.  According to an FCC press release, Benjamin will work on “spectrum reform,” among other issues.  The problem that broadcasters have is with some articles written by Professor Benjamin, earlier this year, on that very subject.

One such, “Roasting the Pig To Burn Down the House,” seeks to answer the question being asked by all fair-minded people: “Should we welcome new regulations on broadcasters that will make broadcasting unprofitable?”  And the answer, according to Benjamin, is “yes.”  Or, as he puts it: “Some regulations that would be undesirable standing on their own will be desirable once we factor in the degree to which they will hasten the demise of over-the-air broadcasting.”

In the same piece Professor Benjamin happily acknowledges, in passing, something that broadcasters have argued – namely that some new administrative regulations, like the so-called advisory boards, “could prove fairly costly.”

A few months later, whilst opining on the Volokh Conspiracy blog site, Benjamin gleefully commented on another rueful development, a Supreme Court decision on indecency regulations (FCC v. Fox) that, as he puts it, “makes life worse for local stations” that can’t afford tape delay systems.  As with the added expense of advisory boards, Benjamin sees this too as a good thing.  “Local television broadcasters,” he says, ”have a new disincentive to airing live local events – and viewers have less reason to watch local broadcasters.”

Never mind for a minute that Benjamin’s comments are informed by what he sees as the inevitable collapse of broadcasting (he gives it only about 20 years to live, even without a nudge), and that he sincerely believes that broadcast TV is not the highest and best use of the spectrum.  The remarkable thing is why the FCC would bring aboard, and give this particular portfolio to, someone with Benjamin’s baggage?

It would be funny if it were a joke.  But as one long-time broadcasting executive put it, it raises real questions about the kind of personnel vetting that’s going on at the FCC.  If views like those that Benjamin has published aren’t enough to disqualify him from appointment to the position he’s just been given, what would it take?  A manual on how to poison station managers?

The dust has barely settled on the government's years-long campaign to engineer TV's digital conversion – a conversion that many broadcasters think holds great promise for their industry – and along comes this character, as out of some film noir production, whose ghoulish fantasy is to put broadcasters out of the broadcasting business.

Not to worry, though.  Once broadcasting has been polished off, the FCC can focus all its energy on regulating the Internet.

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What happens when you invite the FCC’s two veteran commissioners to speak about the media at a Rainbow PUSH Coalition symposium?  When one of the commissioners is Michael Copps, and the other is Robert McDowell, you get two very different views of where things stand and how they could be improved, as we saw on Nov. 20.

Copps, a Democrat, is a long-time foe of large media companies.  So he uses phrases like “excessive media consolidation,” “big media run awry,” “tsunami of consolidation,” and the punchline: “Minorities have suffered greatly because of consolidation.”  

One of his proposals to “put some justice back into our ownership policies” would involve a “public interest licensing system for broadcasters.”  Copps would like the Commission to “go back to having some guidelines to make sure stations are consulting with their audiences on what kinds of programming people would like.”  But wait, I think we already have such a system.  It’s called “ratings.”

Copps also favors something called a “full file review,” which would have the Commission award certain broadcast licenses by considering an applicant’s “experiences in overcoming disadvantages,” including race and gender discrimination.  (This sounds like a lawsuit waiting to be filed, but that’s another story.)  In other words, Copps views the FCC as the referee in a fight between “big media” and the little guy, where the solution is a tight rein on ownership regulations.
    
Robert McDowell sees things differently.  For minorities to get ahead in broadcasting and other media, Republican McDowell is quite clear about what is needed: access to capital.  “An important priority for me in my three-and-a-half years on the Commission has been to help create a competitive environment that allows minority entrepreneurs and other new entrants a real opportunity to build viable communications businesses,” he told the Rainbow PUSH group.
    
McDowell noted that he enthusiastically supported the Commission’s 2007 Diversity Order, which contained nine measures to help small entrepreneurs acquire capital or use their financial resources more efficiently.  He has also called for a tax certificate program to help disadvantaged businesses.  
    
At the same time, McDowell is keenly aware of the unintended and hurtful consequences of regulations (of the sort favored by Copps) aimed at helping small, local media owners  – like a “localism” proposal to reinstate a 20-year-old rule requiring stations to be manned throughout their broadcast day (technology notwithstanding), or onerous “enhanced disclosure” requirements so complex that they could require the hiring of additional employees.   
    
In short: On the question of disadvantaged minorities, Copps sees the culprit as large media companies.  From his perspective, the FCC must be a strict regulator of media ownership.  McDowell sees the culprit as the lack of access to capital.  He would envision the FCC as a facilitator, creating policies to generate financial opportunities for entrepreneurs.
    
Whose view is more accurate and whose solution is more likely to succeed?  On both counts, my money is on McDowell.   

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Owing to his earnest and mild-mannered (if intellectually scruffy) ways, FCC Commissioner Michael Copps has rarely inspired anger.  No matter how wrong-headed his views – and he’s been wrong about virtually everything for the whole of his time as a Commissioner – he’s been accorded that kind of tolerance that people bestow on those seen to be sincere and to mean well.

That’s about to change.  In the midst of the worst economy – and potentially fatal problems for that part of the economy occupied by American newspapers and broadcasters – Copps is saying and doing things that infuriate.

The most recent, and onerous, examples occurred just yesterday and today when, according to stories in Broadcasting & Cable, Copps demonstrated, yet again, how insulated he is from the world of fact and logic.

Presiding (alone) over an FCC workshop convened to hear the views of academics on the subject of media ownership on Monday, “Copps warned against putting too much stock in the doom and gloom scenarios about the health of TV and newspapers, suggesting that trying to ‘save’ the media should not translate to a lighter re-regulatory hand.”

Then today, at yet another workshop, Copps expressed the opinion (as reported by B&C) that “if the FCC can’t rejuvenate shuttered newsrooms, put the brakes on ‘mind-numbing "monoprogramming"’ and otherwise turn the tide ... of consolidation, then ‘maybe those who want the spectrum back have the better of the argument after all.’”

And so there you have it.  The parlous state of the TV and newspaper industries, according to Michael Copps, is nothing to be worried about.  It’s just a rumor.  No need to lighten the regulatory load.  In fact, if broadcasters don’t start programming the way Copps would like, maybe we’ll just take their spectrum away from them.

The series of workshops in question have one more day to run. Plenty of time, in other words, for Copps to give us the benefit of even more of this stuff.

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By guest blogger LAURENCE H. WINER, Professor of Law and Faculty Fellow, Center for Law, Science & Technology, Sandra Day O’Connor College of Law, Arizona State University, Tempe, Ariz.

“[W]e don’t put our First Amendment rights in the hands of [government] bureaucrats.”  What an extraordinary statement for the Chief Justice of the United States to make when one considers the Supreme Court’s long history of allowing Federal Communications Commission (FCC) content-based regulation of broadcasting and other electronic media!

Chief Justice Roberts made this statement in last week’s oral argument of Citizens United v. Federal Election Commission.  Citizens United, involving “Hillary: The Movie,” is the little case that could – could just restore a strong measure of freedom of speech in the most critical of all contexts, namely political speech.

As described in an earlier post occasioned by the first round of oral argument in this case last spring, the narrow issue is the provision of the McCain-Feingold “Bipartisan Campaign Reform Act of 2002” (BCRA) that bans the use of corporate funds for “electioneering communications” via broadcast, cable, or satellite close to an election.  In the earlier argument some members of the Court were astounded by the government’s contention that Congress also would have the constitutional power to similarly ban printed material, including books.
    
This apparently led those members of the Court who long have been troubled by limitations on political speech imposed in the guise of campaign finance reform to set re-briefing and rearguing for an unusual and extended one-day September session.  And, the Court broadened the issue for rehearing by asking the parties to discuss whether the Court should overrule not only that part of its 2003 opinion in McConnell v. F.E.C. upholding the specific BCRA provision, but also the Court’s 1990 opinion in Austin v. Michigan Chamber of Commerce.  In Austin, over strong dissents, the Court upheld a state’s restrictions on independent expenditures from general corporate funds for ads supporting or opposing a candidate for state elective office.

Not surprisingly, the Court’s actions with respect to Citizens United prompted more than 40 amicus briefs with what the New York Times called “an array of strange bedfellows and uneasy alliances” and set the stage for high drama.  How far will the Court go in affirming the political free speech rights of corporations?  

Arguing briefly for Senator Mitch McConnell as amicus, Floyd Abrams reminded the Court that in New York Times v. Sullivan the Court eschewed available narrow grounds to resolve the case and instead issued a broad ruling to fully vindicate the vital First Amendment interests at stake.  And he told Justice Sotomayor that, similarly here, this is the way the Court would do more good than harm.

Solicitor General Elena Kagan, making her debut appearance on behalf of the FEC, tried to reassure the Court that the government’s position on printed campaign speech had changed.  Don’t worry, she suggested, the FEC has never tried to ban a book, though when pressed she immediately stated a pamphlet might be different.  And this is when Chief Justice Roberts made his comment about not relying on FEC bureaucrats to protect the First Amendment.

But the Court has left countless First Amendment matters in the hands of the government bureaucrats at the FCC at least since Justice Frankfurter’s 1943 opinion in the seminal NBC v. U.S. case in which, in a single paragraph, he subordinated the First Amendment to the public interest standard of the Communications Act.  This later caused Professor Harry Kalven to comment that: “The passage catches a great judge at an unimpressive moment.”  

Over the years, the Court’s deference to the FCC has allowed all manner of infringements on free speech in the name of the amorphous public interest, from the now-defunct (but perhaps soon to be resurrected in some version) fairness doctrine, to the recent debacle over broadcast “indecency,” and maybe to a threatened similar campaign against violence in the media.

But members of the FCC, no less than of the FEC, have no expertise or competence in First Amendment matters.  This is not a comment on any present or former members as individuals; rather it is the basic recognition that the First Amendment disables any government bureaucrat from claiming or exercising any province over matters of free speech or free press.  “Congress shall make no law” is a straightforward “hands-off” policy for government bureaucrats.

During last week’s argument of Citizens United, Justice Breyer suggested to Ted Olson (representing Citizens United) that Congress had a compelling interest for the restrictions it enacted and thought it had narrowly tailored them.  So, the justice asked, should the Court really second-guess Congress?  Mr. Olson forthrightly replied, “You must always second-guess Congress when the First Amendment is in play.”  Exactly so, regardless of the medium of communication at issue, and a fortiori must courts stringently second-guess the FCC when it is infringing free speech, directly or indirectly, as it is wont to do all too frequently.

Whatever the ruling in Citizens United, we can only hope the chief justice’s words reverberate loudly the next time the FCC seeks to sustain an infringement on free speech or press in the name of the public interest.

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According to stories in the Aspen Daily News and the Aspen Times, newspapers of record for the nation’s elite snowboarders, Dan Rather gave a speech at the Aspen Institute on Tuesday, asking that President Obama create a national commission to “save journalism.”

As one of the papers put it, without a skosh of irony, “Rather told an Aspen audience that journalism has declined to such a point that it is time for the government to intervene.”

Attributing the decline of "great American journalism" to “corporatization, politicization, and trivialization of the news,” Rather suggested that the commission “ought to make recommendations on saving journalism jobs and creating new business models to keep news organizations alive.”

"If we do nothing more than stand back and hope that innovation alone will solve this crisis," he said, "then our best-trained journalists will lose their jobs."

It’s not every day that one encounters such a rich vein of stuff.  Puts one in mind of the children's illustrations that ask the question, what’s wrong with this picture?  So many upside-down daffodils and trees growing carrots.

First, you know, there’s the problem that some consider the author of this scheme himself to be a disgraced figure in the world of journalism, having lost his job at CBS for the role he played in the airing of a bogus report about President Bush.

Then there’s the (unintentionally) droll picture he conjures up of a presidential commission as a kind of jobs program for the rescue of threadbare journalists, and the linking of the employment status of some of them with the very survival of journalism itself.  

But the most grievous error — that aspect of the Jabberwocky that fairly leaps off the page — is the very suggestion that government is the solution to what ails the media today.  Make no mistake, there are governmental policies that could, and should, be changed (like, for instance, an end to the newspaper/broadcast cross ownership rules), but there is no need for a presidential commission or “media czar” for the purpose.

One would think that a former network anchorman would understand the peril inherent in any intervention by the government into the affairs of the press.  It is this, after all, that is the primary concern of the Speech Clause of the First Amendment.  What are the chances, for instance, that any such commission would use its mandate, and the media’s genuine agony, as cover to advance content regulations that parallel the commissioners’ political beliefs?

Speaking of his idea, Rather said that he was “throwing it out there for what it’s worth.”  Since the Aspen Institute charged $15 per ticket to this event, we know what they think it was worth, but I think admission should have been free.  It wouldn't have improved the speech but the price would have been right.

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A blog about media and communications policy would be remiss if it did not mark the fact that this is a watershed date in television history – even if nothing much seems out of the ordinary.

This, after all, is June 12, the date years in the making on which television broadcasters are converting their analog signals to digital.  For TV viewers with cable or satellite (i.e., most of us) there is no difference.  For those who still rely on antenna reception of over-the-air broadcast signals, there will be no more TV until they get a converter box (for which the federal government has been offering discount coupons for months).

The good news is that most people have already taken steps to become digital-ready.  Paul Karpowicz, chairman of the National Association of Broadcasters TV Board, said at a press conference yesterday that only 1.75 million over-the-air households have not prepared for the changeover.  

The National Telecommunications & Information Administration (NTIA) said it received almost 320,000 requests for converter-box coupons yesterday alone, up from the recent daily average of 114,272.  And for those who somehow haven’t gotten the word about the switch to digital, the FCC has 4,000 operators standing by 24/7.

FCC and industry leaders acknowledge that some stations might experience a few engineering bumps.  But for broadcasters and viewers alike, the changeover is said to be going relatively (and even surprisingly) well.  

The FCC, NTIA, NAB, NCTA, and countless station engineers deserve a “well done” for making this watershed day so uneventful.  

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Since 1985, the Public Broadcasting Service (PBS) has had a policy on the books stating that its member stations must offer a “nonsectarian, nonpolitical, noncommercial educational program service.”

It might be going a bit far to say that PBS has “adhered” to the policy.  Member stations routinely air presidential debates and weekly shows like “Washington in Review” that are nothing if not political.  The “enhanced underwriting credits” for big program funders like Boeing and Lockheed Martin look suspiciously like slick network TV commercials.   

And being British isn’t enough to make shows like “Are You Being Served?” and “As Time Goes By” educational.  Moreover, a handful of smaller stations run sectarian programs that include Catholic Masses and Mormon worship services.

Now, however, the PBS board is considering a revision to its so-called “Three Nons” policy that could force local religious programming off the airwaves of PBS member stations, or force those stations to give up their PBS membership.

A change in policy would likely affect stations like WLAE in New Orleans, which has aired a Sunday Mass since 1984, and Brigham Young University’s KBYU in Provo that carries Mormon worship services.

The proposed policy change is a bad idea.  A PBS committee “believes that if PBS or its Member Stations were perceived by the public to be ‘commercial,’ ‘political,’ or ‘sectarian,’ PBS could be hampered in its ability to carry out its mission.”  

Wait a minute – PBS seems to be carrying out its mission just fine with its members’ current mix of programming that includes all of the above.  

So why single out sectarian programming?  Some might argue that there should be a strict separation of church and state, since PBS member stations receive some funding from the federal government’s Corporation for Public Broadcasting, either directly or through PBS.  

But one need look no further than the FCC, which regulates both noncommercial and commercial broadcasting, to diffuse that argument.  As far back as 1929, the agency (then the Federal Radio Commission) said that broadcast licensees would meet their “public interest” obligations by offering a “well-rounded” mix of programming that included “religion, education and instruction.”  In a 1946 report, the FCC said it expected broadcasters to make free time available to “religious, civic, agricultural, labor, and educational groups.”

The FCC strayed from that policy briefly in 1999, when it issued a ruling that would have banned religious exhortation, proselytizing, and personal expressions of religious belief.  The resulting firestorm was so fierce (including the swift introduction of several bills in Congress) that the FCC deleted the provision a mere month later.

PBS should take its lead from the FCC.  PBS would do well to respect the local character of its member stations, and allow those stations to meet the needs of their audiences without injecting an anti-religion bias.

As it is, public broadcasting in this country is a strange and unlikely amalgam of governmental and private interests, with stations licensed to state and local governments, public and private universities, and even religious groups.  Its fragile equilibrium could easily be disrupted – say, by an untoward policy change.

Changing the “Three Nons” policy as proposed will accomplish nothing positive.  On the contrary, quite likely it will cause a firestorm of its own that might well ignite the now-simmering debate about the very existence of PBS, and whether a broadcasting system that receives even minimal government funding is still a good or necessary idea in this age of media abundance.    

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Two of the Supreme Court’s decisions most awaited by First Amendment advocates this term have landed with a thud.  Or maybe a whimper.  But certainly not with a bang.

On April 28, the Court upheld the FCC’s power to implement a tougher policy against so-called “fleeting expletives” on live television.  This was the Second Circuit’s case involving profanities uttered by Nicole Richie and Cher during music-awards shows in 2002 and 2003.

The other shoe dropped today when the High Court considered the Third Circuit’s case involving Janet Jackson’s “wardrobe malfunction” during the 2004 Super Bowl halftime show.  The Supreme Court told the appeals court to consider reinstating the FCC’s $550,000 fine against CBS.  

In both cases the High Court skirted the constitutional question of whether the FCC’s content controls run afoul of the First Amendment.  Last week’s profanity decision, for instance, was decided on procedural grounds (upholding the FCC’s right to change its indecency policy) and only then by a slim 5-to-4 vote.

In both cases too, the courts of appeal had sided with the networks and against the FCC.  The First Amendment question will now most likely be addressed specifically at that appellate level and, one hopes, make its way back to the High Court for a definitive ruling.  

We know that the Supreme Court avoids reaching constitutional questions when a case can be decided on other grounds.  That’s exactly what happened here, so it shouldn’t come as a surprise.  But it’s still a disappointment.

On a bright note, however, Justice Clarence Thomas said in a dissent that he thinks it’s about time to reconsider the two cases at the heart of broadcast regulation: Red Lion, which creates a lower standard of First Amendment protection for broadcasters; and Pacifica, which turns on the FCC’s authority to regulate “indecent” broadcast fare.

The openness of Justice Thomas is both refreshing and hopeful.  But, with the First Amendment question presently back at the appellate level, it will be a long time (if ever) before the Supreme Court tackles the underlying premises of Red Lion and Pacifica.  And with a new, and as-yet-unnamed justice thrown into the mix following the retirement of Justice Souter, all bets could be off.
 

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By guest blogger LAURENCE H. WINER, Professor of Law and Faculty Fellow, Center for Law, Science & Technology, Sandra Day O’Connor College of Law, Arizona State University, Tempe, Ariz.
 
In last week’s Supreme Court oral argument of the “Hillary: the Movie” case, Citizens United v. F.E.C., the government attorney apparently perplexed several of the Justices by the breadth of his argument.  His argument, and the responses of some Justices, highlight a crucial aspect of the First Amendment.

Citizens United is a nonprofit corporation that made a 90-minute film sharply critical of Hillary Clinton.  During her presidential campaign it wanted to pay cable companies to make the film available to subscribers free via video on demand.

The McCain-Feingold “Bipartisan Campaign Reform Act of 2002” (BCRA), however, bans “electioneering communications.”  This ban prohibits a corporation or labor union from using its general treasury funds for any broadcast, cable, or satellite communication that constitutes express advocacy or its functional equivalent regarding a clearly identified federal candidate within a set time prior to an election.  Electioneering communications, however, do not include news or commentary by a media company, and the statutory ban does not apply to the print media or the Internet.

We are used to media exceptionalism, at least with regard to broadcasting.  That is, throughout its history broadcasting has struggled under a strange First Amendment jurisprudence affording it limited freedom of expression and subjecting it to a panoply of “public interest” obligations that would be constitutional anathemas for any other medium of mass communication.  

Political access rules and requirements for children’s educational programming, for example, fall in this public interest category for broadcasting.  BCRA strangely perpetuates this dichotomous approach by, on the one hand, in effect covering only “television” (broadcast, cable, and satellite), and at the same time exempting from its reach news and commentary in all media.

When pressed by the Justices, the government attorney took the position that the Constitution would allow Congress, if it wished, to extend the statutory ban to print media, a book for example.  To this, Justice Alito replied, “That’s pretty incredible,” going on to characterize the government’s position as allowing it to ban a book about politics, under an expanded BCRA statute, if published by a corporation close to an election.  

Justice Kennedy then demonstrated how bizarre the government’s position is by noting that a book, downloaded by satellite onto a Kindle reader, presumably both would come under the reach of the present statute and, in the government’s view, constitutionally be subject to censorship.  Before long Justice Scalia confessed to being “a little disoriented” because he thought the Court was dealing with the constitutional provision, known as the First Amendment, that he remembers as beginning with “Congress shall make no law.”

BCRA’s restriction on political speech in the guise of campaign finance reform is troubling in its own right.  What great evil of political propaganda justifies this sort of censorship?  But it is good to see members of the Court now “disoriented” by the hopelessly disjointed, media-based approach to First Amendment freedom of expression that the Court itself spawned in the middle of the 20th century and unfortunately maintains in our radically transformed digital era.  

These Justices were incredulous that the government would suggest it could extend a regulation of electronic media to print.  But the disconnect finally should go just as strongly in the other direction – what is prohibited in regulating print media is also prohibited for all media, including broadcasting.

In recent years, the Federal Communications Commission under former chairman Martin pursued a relentless and unwarranted campaign against so-called “indecency” on broadcast television.  The Supreme Court has pending before it a challenge to the Commission’s authority in this area to regulate what no government entity can restrict in any other media.  It would be gratifying if in its decision in the next few weeks the Court finally adopts and applies a unitary First Amendment.

Professor Winer is also the Faculty Editor of Jurimetrics.

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“If you bring up the First Amendment, you’re a racist.”  In so many words that’s the message – or threat – to anyone who would dare question the constitutionality of a proposal that the government launch an inquiry into media content.     

The threat is leveled by the National Hispanic Media Coalition (NHMC) in a Jan. 28 petition asking the FCC to conduct an inquiry into hate speech in the media.  The petition was written for NHMC by the Institute for Public Representation at Georgetown Law and the Media Access Project.

Ironically, the names of both groups (“Public Representation,” “Media Access”) would seem to suggest support for freedom of speech.  Here, however, the ultimate intent of these groups is to eradicate certain types of speech (and speakers) in the media, and to chill the speech of anyone who would question that endeavor.   

The petitioners throw down the gauntlet to First Amendment challengers with this line: “The NHMC understands that those who would prefer hate speech to remain under the radar will claim that such an inquiry violates the First Amendment.”  

Let me say up front that I find racial slurs and other forms of bigoted, biased, hateful speech to be utterly abhorrent.  Such speech usually emanates either from small-minded, obtuse bigots, or from persons who are smart enough to know better but are consumed with hate, anger, and at bottom, fear.

However, I do challenge the constitutionality of an inquiry that could lead to the banning of speech – not because I’m a bigot (as the petitioners imply), but because I happen to be a staunch supporter of the First Amendment.   

Like it or not, the First Amendment was designed precisely to prevent government censorship, not only of popular speech but of unpopular speech – even so-called “hate speech.”  

There are some narrow exceptions, like speech that incites immediate violence.  That seems to be the slim reed on which NHMC tries to build its case.  The petitioners say that there has been an increase in hate speech in the media.  Then they say that there has been an increase in the number of violent hate crimes against Hispanics.  By that juxtaposition they try to imply that there is a causal relationship between hate speech and hate crimes.  

But the petitioners offer no evidence – only vague assertions like “hate speech over the media may be causing concrete harms.”  Even a 1993 report by NTIA, which the NHMC petition quotes liberally,  “found that ‘the available data linking the problem of hate crimes to telecommunications remains scattered and largely anecdotal,’ and that [NTIA] lacked sufficient information to make specific policy recommendations.”

So what’s going on here?  NHMC and its public-interest collaborators take great pains to point out that they are only asking for an inquiry into what’s happening out there, “merely the collection of information and data about hate speech in the media” – not for any overt censorship.  Oh, and of course they’re not calling for a reinstatement of the Fairness Doctrine, they are quick to note.

But as we know, FCC notices of inquiry have a way of turning into rulemaking proceedings.  And if a rulemaking proceeding aimed at outlawing hate speech had the effect of outlawing conservative talk radio ... who needs a Fairness Doctrine?

This is no time for First Amendment advocates to be cowed into silence by bogus challenges to their political correctness.  Speech isn’t always pretty, or pleasing, or even palatable.  That’s why we have a First Amendment.

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By guest blogger ROBERT CORN-REVERE, partner, Davis Wright Tremaine LLC, Washington, D.C.

During the presidential campaign, and particularly since the election, conservative talk radio and the blogosphere have been abuzz with rumors that the Democratic agenda would include reviving the Fairness Doctrine.  Prominent media activists have labeled such claims as fantasy and asserted they have no interest in reviving the policy, which required broadcast licensees to air “controversial issues of public importance” and to do so in a “balanced” way.
    
That debate has now been joined in Washington by actual experts in communications law.  FCC Commissioner Robert M. McDowell, speaking at a Media Institute luncheon on Jan. 28, warned that there may be efforts to bring back the principles underlying the Fairness Doctrine, albeit in some modified form that may extend beyond the broadcasting medium.  In response, my friend Henry Geller, the venerable former FCC general counsel, criticized Commissioner McDowell’s views about the Doctrine and the concept of spectrum scarcity, and suggested instead that other new regulatory approaches may be appropriate.  

In a commentary written for Broadcasting & Cable, Henry acknowledged that “with the growth of cable, satellite, wireless, and, above all, the Internet, it is most unlikely that the fairness doctrine will return as a matter of general policy.”  But he also outlined other possible approaches, such as a spectrum fee to support meritorious programming, and suggested that the overriding issue is “the appropriate regulatory scheme for broadcasting in the 21st Century ... not this skirmish over the unlikely re-appearance of the fairness doctrine.”
    
This looks like a debate in which both sides agree on two fundamental premises: (1) that the Fairness Doctrine is not likely to be resurrected, at least not in the form that existed before 1987; and (2) the real issue going forward is what type of regulatory model should be applied to broadcasting and other electronic media.  

Commissioner McDowell identified and critiqued various ways in which the government may assert its authority over broadcasting and other electronic media (including the Internet), while Henry Geller highlighted ways in which the “public trustee obligation” might be “clarified and made more effective.”  In short, they agree on the central issue, but simply offer quite different perspectives on the desirability of enforcing “public trustee” requirements.  
    
This overriding question about the proper regulatory approach is not confronting us because a new administration has come to Washington.  The Republican FCC under Chairman Kevin Martin launched an unprecedented number of regulatory initiatives designed to bolster and perpetuate government control over broadcast content and to extend such policies to other media. 

These efforts included a single-minded campaign to restrict broadcast indecency and Chairman Martin’s overzealous efforts to require a-la-carte marketing of cable and satellite programming.  They also included the regulation of video news releases – on cable as well as broadcasting – and proposed new rules to restrict product placement.  
    
One of Chairman Martin’s most ambitious initiatives, the so-called “enhanced disclosure form” which requires detailed quarterly reports on broadcast news and public affairs programming, and his proposed “localism” guidelines, to be overseen by mandatory local “advisory committees” and enforced by licensing review, would give the government far greater control over private editorial judgment than ever existed under the Fairness Doctrine.  In fact, forget the Fairness Doctrine.  “Localism” is the new “fairness.”  
    
The common element in all of these initiatives is the assumption that the government should oversee broadcasters’ (and perhaps others’) editorial choices – a philosophy that is antithetical to traditional First Amendment principles.  The real question, then, is whether the FCC can continue to maintain the legal fiction, eroded by time, technology, and case law, that the media it regulates are not entitled to full Constitutional protection.

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Two items in the Washington Post in the past three days point up how the relentless march of technology will affect news in the months to come – both how it is generated by the White House, and how it is reported by at least one local TV station.

President-Elect Barack Obama sees new technology as a means “to reinvigorate our democracy,” according to senior adviser David Axelrod.  And, as Chris Cillizza reported on Dec. 14, Obama is starting with the Saturday morning radio broadcast begun by Ronald Reagan in 1982.  

“The speech is still beamed out to radio stations nationwide on Saturday mornings, but now it is also recorded for digital video and audio downloads from YouTube, iTunes and the like, so people can access it whenever and wherever they want,” Cillizza reports.

It’s part of a “broader revolution” in how the Obama White House will communicate, according to Doug Sosnik, a senior aide in the Clinton Administration. "The mainframe for this White House will be the Internet, not TV," he told Cillizza.

Only two days earlier (Dec. 12.), Paul Farhi reported that WUSA-TV, Channel 9 in Washington, D.C., had reached a new labor agreement that would scrap the traditional two-person news crew of reporter and photographer.  Under the new pact, an individual “multimedia journalist” will report, shoot, and edit stories alone using digital tools.  Reporters will double as their own camera crew.  Camera operators will take on reporting tasks as well.

In the case of WUSA, however, the impetus is economic. The one-person operatives are part of a broad budget-cutting scheme under which these “multimedia journalists” will actually be paid less than current reporters.

It’s encouraging that Obama embraces digital technology and plans to use it extensively.  At the same time, it’s ironic that digital technology has siphoned viewers from broadcast television and weakened some local news operations to the point where they can only be saved by changes in news-gathering built around ... digital technology.

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Say what you will about the FCC, but you have to admit they’re a scrappy bunch when it comes to pursuing their crackdown on broadcast “indecency.”  First they persuaded the U.S. Supreme Court to hear the case they lost in the U.S. Court of Appeals for the Second Circuit – the one about Cher and Nicole Ritchie uttering a couple of verboten words during Fox’s “Billboard Music Awards” shows.

Now the FCC crowd is asking the Supreme Court to hear yet another indecency case they lost – this one in the Third Circuit involving the infamous Janet Jackson wardrobe incident during the 2004 Super Bowl halftime show on CBS.

The Supreme Court hasn’t even ruled on the Fox case yet, and in fact heard oral argument only about a month ago (Nov. 4).  But the word on the street is that the justices seemed sympathetic to the FCC’s arguments in Fox – perhaps even sympathetic enough to rule in the agency’s favor.  Handicappers are predicting that a vote favoring the FCC would be slim (say 5 to 4) and decided on narrow procedural grounds, rather than reaching the constitutional issues.  IF the vote goes the FCC’s way at all, that is.  

The common wisdom, of course, is that predicting Supreme Court decisions based on oral argument is a fool’s errand.  So, an unreliable prediction that foresees such a tepid outcome would seem a double whammy, enough to give one pause.

But not the FCC.  They reportedly are buoyed by the oral argument in Fox to the point that they want to pile on with the Janet Jackson matter.  The Commission did, however, request that the High Court defer a decision on whether to hear the Third Circuit case until after the Court rules on the Second Circuit case.   

This begs the question of why the Commission petitioned the Court at this particular time at all.  (The Court is not likely to issue a ruling in Fox until next spring or summer.)  Maybe this is just the Commission’s way of warning broadcasters that the indecency watchdog is not about to roll over and play dead.  To this observer, however, it seems a transparent ploy that might well prove all bark and no bite.    

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The Fairness Doctrine, or at least talk of a reimposed Fairness Doctrine, just won’t go away.  It was finally killed off in 1987 but the current Democratic Congress has been making periodic noises about bringing it back.

The big question now seems to be what would happen under a President Obama.  Would he actively support a return of the doctrine?  Would he accede to a Congress controlled by his Democratic friends who put a Fairness Doctrine bill in front of him?  Would he dare (or bother) to go against his congressional allies and veto such a bill?

All we know for sure has been ferreted out by the hard-working John Eggerton of Broadcasting & Cable.  He reported back on June 25 that Obama’s press secretary, Michael Ortiz, told him that "Sen. Obama does not support reimposing the Fairness Doctrine on broadcasters," and that the candidate sees the issue as “a distraction from the conversation we should be having about opening up the airwaves and modern communications to as many diverse viewpoints as possible."

On Sept. 18, however, George Will opined that an Obama-led government would bring back the Fairness Doctrine.  Will wrote:

“Until Ronald Reagan eliminated it in 1987, that regulation discouraged freewheeling political programming by the threat of litigation over inherently vague standards of ‘fairness’ in presenting ‘balanced’ political views.  In 1980 there were fewer than 100 radio talk shows nationwide.  Today there are more than 1,400 stations entirely devoted to talk formats.  Liberals, not satisfied with their domination of academia, Hollywood and most of the mainstream media, want to kill talk radio, where liberals have been unable to dent conservatives' dominance.”

Will’s comments have stirred the pot once again, particularly among right-leaning blogs where much of the speculation and hand-wringing takes place.

In support of Will’s assertion are two factors.  The first is that Obama need not actively support a reimposition of the doctrine to sign a bill pushed by his fellow Democrats.  The second is that his press secretary also told Eggerton that Obama supports “media-ownership caps, network neutrality, public broadcasting, as well as increasing minority ownership of broadcasting and print outlets" – in other words, the traditional Democratic media-policy platform in which the Fairness Doctrine plank would fit snugly.

The Fairness Doctrine was a bad idea for a lot of reasons.  It should be allowed to rest in peace.  Sen. McCain gets that, and has co-sponsored legislation to keep it dead.  Sen. Obama says he opposes a new Fairness Doctrine.

Yet George Will can be a hard person to bet against.  In the case of Obama and the Fairness Doctrine, however, I’m hoping Will is wrong.

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George Carlin’s death on June 22 came only days before the 30th anniversary of what has become his legacy in Washington policy circles: The U.S. Supreme Court’s Pacifica decision.

That ruling centered on Carlin’s comedy bit "Seven Words You Can Never Say on Television" (commonly known as the “Seven Dirty Words” routine), and guided the FCC’s enforcement of so-called “indecent” broadcast content for the next 30 years.

The Parents Television Council took the opportunity of Pacifica’s anniversary July 3 to hammer the networks for daring to challenge the FCC’s indecency-enforcement regime.  “The broadcast medium remains uniquely pervasive," said PTC President Tim Winter.  “It’s time for the broadcast networks to obey the law instead of undermining it.”

The networks have indeed challenged a number of FCC indecency findings in recent years, reaching U.S. Courts of Appeal in the Second and Third circuits, and now the Supreme Court.

But the challenges have revolved, for the most part, around how the FCC defines and then goes about enforcing its indecency standards (now with a new emphasis on profanity as well) – rather than on the underlying law. 

The question has generally been whether the FCC’s interpretation of the law is valid, and whether the FCC is applying that interpretation in a way that is not arbitrary and capricious.  The networks have every right to challenge the FCC’s interpretation and actions, as they are presently doing.  That does not make the networks lawbreakers, as Mr. Winter disingenuously implies. 

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Unless you hang in the fever swamps of the hard Left, you’re probably not aware that the group calling itself Free Press hosted last weekend the fourth annual National Conference for Media Reform.  Like the name of the host organization,  “media reform” is more a euphemism than a description of the group's real agenda.  Mostly, what they’re interested in is using government to yoke the media — broadcasting in particular — to their ideology.

And what an ideology it is!  The president and founder of Free Press is one Robert McChesney, a professor of “communications” at the University of Illinois.  And he writes books. His latest, published by the book-publishing arm of what Wikipedia calls “an independent Marxist journal” (Monthly Review, of which McChesney was co-editor from 2000 to 2004), is titled The Political Economy of Media (PEM).

I recently sprang for the purchase of PEM because I saw that the good professor had written a chapter about the First Amendment.  Titled “The New Theology of the First Amendment: Class Privilege Over Democracy,” this chapter reveals, in remarkably transparent language, how real is the threat to the First Amendment from the Left.

But judge for yourself.  Herewith, some of McChesney’s observations on the subject, in a chapter that deals primarily with his unhappiness with the ACLU for its advocacy of what he characterizes as “extensions” of the First Amendment:

"In the hands of the wealthy, the advertisers and the corporate media, the newfangled First Amendment takes on an almost Orwellian caste.  It defends the right of the wealthy few to effectively control our electoral system, thereby taking the risk out of democracy for the rich, and making a farce of it for most everyone else.  These semi-monopolistic corporations that brandish the constitution as their personal property eschew any public service obligations, and claim that public efforts to demand them violate their First Amendment rights, which in their view means their unimpeded ability to maximize profit regardless of the social consequences....

"The job for progressives and activists, then, is to raise holy hell about our corrupt electoral system and our bogus corporate media system, and make it a key target of a social movement that takes direct aim at social inequality and class privilege....  And in the process of doing so we need to pressure the ACLU to return to its roots as a force for justice and democracy, or expose it as a liberal fig leaf for plutocracy."
 
PEM features more of the same — lots more — but you get the idea. The class struggle, the proletariat versus the bourgeoisie, the whole nine yards.  So the question you may be asking is why?  Why even mention Free Press or Robert McChesney? It’s not, after all, as though views such as his, or missions like that of Free Press, hoary and ludicrous though they are, are all that rare among academics in the liberal arts, or among left-wing activist organizations.

Sorry to say, the explanation is that Free Press is gathering strength among policymakers and regulators, many of whom (one hopes) are unaware of the group’s ideological underpinnings.  This, because the mainstream press have told us virtually nothing about the organization.  No I-teams or investigative reporters; no “following the money trail” here.  Though the group was only formed in 2002, it is these days accorded a matter-of-fact acceptance by mainstream journalists that is breathtaking.

Though Free Press is said to be the beneficiary of substantial funding from George Soros, the billionaire currency speculator and serial hypocrite, you can’t prove it by anything either party has divulged.  The only clue, shown in an IRS filing, is that the Soros-funded Open Society Institute is listed as a contributor.

Through its lobbying arm, the Free Press Action Fund, the group worked the halls of Congress recently in an ongoing campaign to undo the modest liberalization of media ownership rules recently enacted by the FCC.  And just last weekend, two FCC Commissioners, Michael Copps and Jonathan Adelstein, were featured speakers at the above-mentioned National Conference for Media Reform.

If, as appears to be the case, liberalism in the U.S. is on the rise, it’s going to be interesting, and perhaps of some moment, to see how, and in what ways, liberals deal with hard Left activists like the Free Press crowd.

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There they go again. No, not the FCC.  This time it’s the U.S. Senate, still worried after all these years that the same company might own a newspaper and a TV station in the same market.  The Senate recently passed Senate Joint Resolution 28, which cancels a very modest attempt by the FCC to relax the newspaper-broadcast cross ownership rule in the nation’s top 20 media markets.

In effect, the Senate is saying that ownership of newspapers and TV stations should be restricted just as it was in 1975 when the rule was adopted – when viewers in big cities were lucky to get six over-the-air channels, and “cable” was still the “community antenna” in rural areas.

The effort to relax or even eliminate the cross ownership ban has gone on for years, even as the FCC was repealing virtually all of its other ’70s-era ownership restrictions.  The FCC’s action on Dec. 18 wasn’t much, but it was still too much for a Senate that’s apparently afraid to move out of the 1970s.

John F. Sturm, president and CEO of the Newspaper Association of America, summed it up when he said: “It is incomprehensible that Congress would shackle local newspapers – and only newspapers – with a ban that fits the eight-track era, but not the iPod world we live in.”

There is no logical reason for the Senate to act this way.  Could the reason be political?  Congress and the FCC are routinely barraged with mass e-mails orchestrated by various interest groups.  The magnitude of these mailings can appear far greater to policymakers than it really is.  Think of the man behind the curtain in "The Wizard of Oz."

A popular policy target of such groups has been “media consolidation,” always portrayed as a looming evil.  But in today’s economic environment, multiple ownership of media outlets has become an economic necessity – a matter of survival. 

Critics fear that “consolidation” will result in fewer voices and viewpoints reaching the public.  The real danger, however, is that media voices will be lost as struggling newspapers and broadcast outlets are forced out of business, suffocated by antiquated rules that prevent them from taking advantage of the economies of scale that come with multiple ownership.

It will be ironic indeed if the anti-consolidation forces triumph, leaving us with less rather than more media diversity.  The politically timid Senate is playing right into the critics' hands.  It’s time for our solons to pitch their eight-tracks and reach for an iPod.