Author: Richard T. Kaplar

Posted on By Richard T. Kaplar

A Time To Celebrate Free Speech

National Freedom of Speech Week – NFSW for short – is upon us.  This week of Oct. 20-26, 2008, marks the fourth year in which freedom of speech has been remembered with a commemorative  week of its own. 

When The Media Institute launched NFSW in 2005, we knew that the success of the week would depend on the participation of many organizations that would take the free-speech message to their constituents.  In that first year we partnered with the NAB Education Foundation and four other groups.

NABEF is still a stalwart, and those four groups have grown to many times that number.  Broadcasting, cable, newspapers, movies, electronics – virtually all of the major media platforms are represented this year in addition to educational institutions and a variety of other organizations.  That has always been the point – to make NFSW an open-ended collaboration rather than a proprietary event.

What I find exciting about NFSW’s evolution is the way in which a growing number of groups are taking the First Amendment message to young people and involving them in creative  and interactive ways. 

For example: NABEF is sponsoring a competition for college students, inviting them to produce public service announcements on free speech.  The Radio and Television News Directors Foundation is conducting a similar competition for high school and middle school students.  The Thomas Jefferson Center for the Protection of Free Expression is sponsoring a poetry and songwriting contest on free-speech themes.  And the National Communication Association is encouraging the members of its college chapters to publicize and celebrate the week on their campuses.  (See the NFSW website, www.freespeechweek.org, for more details.)

It’s a well-worn cliche that today’s youth are the future of our country.  A fact far less widely touted is that they’re also the future of the First Amendment and our precious freedoms of speech and press.  But we need to do a better job of making our young people aware of these freedoms.  The activities above are good starts, and these groups are to be commended.
   
Ultimately the success of National Freedom of Speech Week will be secured when Americans in general and young people in particular demonstrate a heightened awareness of the importance of free speech and free press – and are willing to stand up for those freedoms even if means protecting speech that is unpopular or unpalatable.  

Even as we pause to celebrate freedom of speech this week, let’s be mindful that we still have a long way to go.

Posted on By Richard T. Kaplar

Fairness Doctrine: The Talk Goes On

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.

Posted on By Richard T. Kaplar

Sheer Lunacy: Taxing the Technologies of Freedom

Imagine that someone came up with an idea to solve the “problem” of information overload (a.k.a. “too much information”) by levying a tax on the technologies that have sparked our information explosion.  Making it too expensive for many people to blog or otherwise send and receive information through digital and Internet-based technologies would not only reduce a lot of superfluous, self-indulgent electronic clutter, but would reverse the fragmentation of opinion threatening our democracy, the theory would go.

Well, someone has come up with just such a scheme.  An environmental attorney named Dusty Horwitt published his incredibly outlandish idea in the Aug. 24 Outlook section of the Washington Post.  (“If Everyone’s Talking, Who Will Listen?”)  He proposes a “progressive energy tax” that would “make the technologies that overproduce information more expensive and less widespread.”

Anyone who has the faintest sensibility about the free flow of information must find this notion not only preposterous, but repulsive.

Forget, for a minute, that such a scheme would be utterly unworkable.  (How, for instance, would the government tax the electricity going into your computer differently than the electricity keeping the beer in your refrigerator cold?)  And we’ll leave it to our economist friends like Harold Furchtgott-Roth to point out the fatal flaws from an economic standpoint.

From a First Amendment perspective, Mr. Horwitt’s proposal is simply horrendous.  Restricting the means of disseminating information is tantamount to restricting information itself.  And information is speech, almost all of which is protected from government interference by the First Amendment. 

It is freedom of speech, and the free flow of information, that distinguishes the United States from China, totalitarian regimes, and most third-world countries.  Restricting the availability of information is a totalitarian tactic that is the antithesis of democracy, not something undertaken in support of it, as Mr. Horwitt alleges. 

Under Mr. Horwitt’s scheme, who would decide how much information was enough? Perhaps we would need a Ministry of Information to make those decisions.  And if the quantity of information were regulated, would the regulation of content be far behind?

In an earlier age, maybe Mr. Horwitt would have favored a stiff tax on printing presses and newsprint.  It’s no coincidence that the Founding Fathers created the First Amendment, because taxing the means of producing speech was a form of government coercion they found utterly repugnant. 

And perhaps it’s no coincidence that Mr. Horwitt never mentions the First Amendment or acknowledges any constitutional concerns about his proposal.  I don’t see how his scheme could possibly pass constitutional muster under the Supreme Court’s O’Brien test, for instance.  Taxing speech isn’t the same as taxing cigarettes or gasoline.

The technologies that Mr. Horwitt would like to tax into oblivion, or at least into submission, are the latest iteration of what Ithiel de Sola Pool famously called the “Technologies of Freedom.”  Give me my newspaper and my traditional radio and TV, but also give me the rollicking, raucous world of the blogosphere, satellite and Internet radio, hundreds of cable and satellite TV channels, and the incredible wealth of information available on the Web.  These are today’s “technologies of freedom” that make our democracy what it is. 

How could anyone be fearful of “too much information”?  Information is the lifeblood of democracy, and the more the better.  The idea of restricting speech by taxing the messenger is repulsive indeed.    

Posted on By Richard T. Kaplar

Is China Big Enough for Free Speech?

The Olympics are now in full swing in Beijing after a spectacular opening ceremony that displayed many of the Chinese people’s finest attributes.  The Chinese government and free speech, however, are another matter.

Our friend Kurt Wimmer has written an excellent piece for us on this topic titled “The Beijing Olympiad: A Fleeting Opportunity for a Freer China.”  Kurt notes that by July, Chinese officials had imprisoned almost 50 Chinese writers whose opinions the government found subversive or threatening.  And the clampdown was not limited to native Chinese.
 
Western journalists were ordered out of the ravaged Sichuan province following the earthquakes there, and at least 10 foreign journalists covering Tibet have had their lives threatened since March.  Meanwhile, the “Great Firewall of China” blocks access to Internet content that criticizes the government, lest Chinese citizens hear anything untoward about their leaders.

The drumbeat continued in the days just prior to the games with stories about journalists denied access, activists deported, and even the U.S. press corps plane being delayed for a baggage search.  Subtlety is not in the playbook of Chinese censors, from all indications.

Still, Kurt finds a glimmer of hope in all of this.  If the United States and other nations can bring enough media pressure to bear, perhaps the will of the Chinese people can prevail and usher in a new era of greater transparency, he says. 

It’s a big “if,” as Kurt acknowledges.  There are no guarantees that free speech will take root just because the Chinese are hosting the Olympics.  But as the Games focus the world’s attention on China, they do provide an opportunity – however fleeting – to begin a process that could just lead to greater freedom of speech and press. 

Posted on By Richard T. Kaplar

The FCC, Indecency, and the Rule of Law

Call it a victory for the rule of law.  And a victory for common sense.

On July 21, the U.S. Court of Appeals for the Third Circuit overturned the Federal Communications Commission’s fine against CBS televisions stations for airing the Janet Jackson Super Bowl incident.

As you might remember, this was the so-called “wardrobe malfunction” involving Justin Timberlake that allegedly traumatized millions of children watching the Super Bowl halftime show.  Activist groups mobilized, Congress jumped in, and the FCC swiftly cracked down on “indecency” in an abrupt departure from its decades-long policy of restraint toward “fleeting” incidents.

However, the Third Circuit concluded that the FCC had reversed its policy in a manner that was arbitrary and capricious without adequate notice to broadcasters.  In doing so, the Commission had violated the Administrative Procedure Act, the court found.  In essence, the court told the FCC that it can’t do whatever it feels like doing in response to the winds of public opinion or the grandstanding of certain politicians.  

That’s the right decision.  Yet the ruling was greeted in many quarters with reactions ranging from keen disappointment to outrage, as if the indecency crackdown were an end that should be justified by any means.  As John Eggerton reported in Broadcasting & Cable, even the FCC chairman was “surprised” and “disappointed.”  In our judicial system, however, the rule of law trumps personal feelings and public opinion – even the “public opinion” of mass e-mail campaigns orchestrated by activist groups.

So far, the Second Circuit and now the Third Circuit have rebuked the FCC for its recent approach to indecency enforcement.  In response to the Third Circuit’s decision, FCC Chairman Kevin Martin noted “the importance of the Supreme Court’s consideration of our indecency rules this fall.”  He’s right about that – and we trust the Supreme Court will be the next judicial body to get it right.
 

Posted on By Richard T. Kaplar

Those “Outlaw” Television Networks?

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. 

Posted on By Richard T. Kaplar

The Real Problem With Radio

Washington radio icon Chris Core was given the boot in February after 33 years behind the microphone at WMAL-AM in the Nation’s Capital.  He was part of a cost-cutting move by the station’s owners, who also fired the entire on-air staff of sister station WJZW-FM.

Marc Fisher, a Washington Post reporter who had written “The Listener” radio column since 1995, wrote his final column and signed off June 1, as he lamented the passing of “the kind of eccentric, iconoclastic voices that made radio so alluring from the 1950s into the ’80s.”  Now, Fisher says, the talent is “mostly anonymous and amateur.”  The implication: Radio in the Washington, D.C., market isn’t worth writing about anymore.

Critics of “media concentration” will be quick to seize on the tales of Core and Fisher to “prove” that big is bad.  They will tell us that the multiple-station ownership practiced by big companies like Clear Channel and Citadel (which now owns WMAL) is the root cause of all that is wrong with radio today, from the loss of “localism” to the homogenization of programming.

Unfortunately, these critics will be exactly wrong.  Media concentration is not the cause of radio’s problems – it is an effect of something else entirely: the fragmentation of audiences that has come about as exploding technology has given the public a whole new panoply of delivery platforms.

Listeners (and especially young listeners) are getting their audio fix via satellite radio, Internet radio, cell phones, and PDAs, and can create their own mix on iPods and MP3 players.  Don’t forget free HD radio and, soon, free Internet radio in cars.  The always-philosophical Core recognizes that “radio stations have to either evolve from their traditional ways or wither.” 

Kenneth J. Goldstein, president of Communications Management Inc., presciently observes that fragmentation not only is the cause of consolidation (as station owners try to re-aggregate audiences), but also of cost pressures, less localism, content sharing, and stretching the boundaries of taste. 

Regrettably, policymakers are being bombarded with the big-is-bad “concentration myth” by critics of multiple ownership.  However, until policymakers understand the issue correctly (i.e., realize that media consolidation is merely one effect of technology-driven fragmentation), the debate is fated to be an uninformed waste of time.  And any policy “solutions” that spring from such a spurious debate are almost sure to be catastrophic.

Continue reading “The Real Problem With Radio”

Posted on By Richard T. Kaplar

The Threat to Free Speech Is Just Across the Border

Note to American journalists: Step across the border into Canada and you will give up every vestige of your right to free speech and free press. If you write a piece that someone finds offensive or that merely hurts his feelings, you may end up facing trial before one of Canada’s “human rights” tribunals that collectively boast a conviction rate in the range of 100%.

Hard to believe?   Just ask Mark Steyn, widely regarded as one of Canada’s finest journalists.  He recently went on trial before one of these kangaroo courts in British Columbia because a group called the Canadian Islamic Congress didn’t like a book excerpt of his that appeared as an article in Maclean’s magazine. 

The Islamic group claimed that the excerpt from Steyn’s book America Alone engaged in “spreading hatred against Muslims” – despite praise from other journalists such as Rich Lowry, who calls the piece “a sparkling model of the polemical art” and lauds its “profound social analysis.”

No matter.  Before the national Canadian Human Rights Commission and its provincial counterparts, truth is no defense.  And there is no requirement to prove harm.  All you have to do is disagree with the writer’s point of view.  Forget freedom of speech.  Lowry quotes one of the national commission’s principal investigators as saying: “Freedom of speech is an American concept, so I don’t give it any value.”

It is incomprehensible to think that freedom of speech and press have been so thoroughly brutalized within the borders of our northern neighbor.  Equally unbelievable, however, is the fact that the plight of Mark Steyn has been greeted with such a stunning and nearly universal silence by U.S. media.  With a handful of exceptions like Lowry, American journalists have completely ignored this travesty to the north. 

It’s true that Steyn and Lowry both are conservatives – Lowry is editor of National Review  – but I don’t want to say the deafening silence is driven by ideology.  (One of the few other Americans to break the silence, for example, is New York Times reporter Adam Liptak, writing in the International Herald Tribune.)  I think it’s a matter of journalistic indifference to something that’s not happening here.

Yes, it’s a Canadian matter.  But threats to free speech and free press transcend borders.  Especially when the threat is this serious, and the border this close.  That makes it our matter, too. 

Final note to American journalists:  WAKE UP!!

Posted on By Richard T. Kaplar

Where Are the First Amendment Champions?

First Amendment advocates must acknowledge a stark reality:  Too many players in the new generation of digital media either do not understand the First Amendment, or think the First Amendment is irrelevant to their piece of the digital action, or both.    
   
This is a dangerous situation because these digital gurus are the future of America’s media.  Are they eager to uphold constitutional principles like freedom of speech?  No.  Their interests revolve around technological innovation, software and hardware applications, content availability, distribution platforms, consumer acceptance, cost per unit … business considerations wherein technology and the marketplace trump policy concerns.  What does this bode for the future of free speech and free press as we know it?
   
Right now, the equipment manufacturers appear to be the standard bearers for the First Amendment rights of the new media.  Their Washington reps at the Consumer Electronics Association aren’t afraid to invoke free-speech arguments in policy circles.  But even within this industry, and certainly among the new media generally, we have yet to see emerge an entrepreneur or company head willing to lead the First Amendment fight in the way that William Paley championed freedom of speech in an earlier era.
   
We need a new generation of First Amendment champions.  They must, of necessity, be recruited widely from the ranks of the new media.  Before they can be champions, however, they must be educated about the First Amendment.  They must realize that the First Amendment will prove utterly and crucially relevant to all manner of digital media in coming years.  And they must be willing to embrace our cherished constitutional guarantee of free speech and free press as their unqualified ally.