Category: Media Regulation

Posted on By Prof. Laurence H. Winer

A Unitary First Amendment – Redux

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.

Posted on By Patrick Maines

Dan Rather Has an Idea

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.

Posted on By Patrick Maines

Filling the Open Seats at the FCC

Late Friday afternoon the Senate confirmed Mignon Clyburn and Meredith Baker to fill the last of the open seats at the FCC.  Though not yet sworn in as this note is being posted, it is assumed that both will be joining Michael Copps, Robert McDowell, and Julius Genachowski as commissioners within a few days.

We have not had an opportunity to work with Mignon Clyburn, but Meredith Baker is a favorite of ours.  In November of last year, while still with NTIA, Meredith gave a speech at a Media Institute luncheon.  She spoke of the digital transition and the First Amendment, as shown here, and demonstrated precisely why she’ll be such an asset to the FCC.

Our congratulations and best wishes to both of these accomplished women.

Posted on By Richard T. Kaplar

Back to Square One

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.
 

Posted on By Richard T. Kaplar

A Disappointing Delay on Cross Ownership

Since January we’ve heard a lot of talk about changing the way the government does business.  At the FCC, however, it looks like it’s still just talk.  When it comes to the newspaper-broadcast cross ownership rules, at least, the times … they definitely are NOT a-changin’.

This week the U.S. Court of Appeals for the Third Circuit said it would put off a decision on whether to lift a stay on the FCC’s modest attempt to loosen the rules until after the Obama FCC has a chance to review the revisions.

This comes after acting FCC chairman Michael Copps announced that the Commission would no longer oppose a petition by activist groups to put the case on hold until the new FCC leadership was in place.  

Let’s add this up.  The usual suspects in the activist realm (Media Access Project, Free Press, United Church of Christ, etc.) try to stall a court action that might loosen the cross ownership rules.  They know that if they can stall until a Democratic-majority FCC is in place, the changes are as good as dead.  The acting FCC chairman, who favors that outcome, goes along with the idea.

So it’s business as usual at the FCC.  But we expected more from the federal judiciary.

The court’s decision was unfortunate.  The judges should have acted decisively and immediately to lift the stay – as a matter of principle.  The ban on cross ownership makes absolutely no sense, neither in this digital age, nor in this recession.  The ban should have been abolished in its entirety years ago.  Some relaxation now would at least be a step in the right direction.

As for the activist groups and the acting FCC leadership – shame on them.  Has nobody among them noticed that in recent months newspapers have been biting the dust at an increasing rate that is nothing short of alarming?

If these policy watchers and makers truly cared about the public interest and a diversity of media voices, as they purport to do, they would be doing everything possible to help newspapers survive.  

It’s true that the problems facing the newspaper industry go well beyond the scope of the newspaper-broadcast cross ownership rules.  And it’s true that repealing the rules will not, by itself, restore the industry to robust health.

But getting rid of the rules – or even relaxing them a bit as the previous FCC chairman had proposed – might just help a little around the edges.  And if even one newspaper were able to keep publishing as a result, wouldn’t the public interest be better served?

That would be a change we could believe in.

Posted on By Richard T. Kaplar

Hate Speech and the First Amendment

“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.

Posted on By Guest Author Robert Corn-Revere, Esq.

Shadow Debate

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.

Posted on By Patrick Maines

Obama and the Media, Part II

Apart from the economic effects of President Obama’s fiscal and regulatory policies, there arises the question of how “business friendly” he may prove to be.

The media and communications sector plays a large and important role in the general economy, and the new Administration’s stance on issues that matter to this sector may answer that question.

As mentioned in Part I of this piece, three such issues are consolidation, content controls, and “network neutrality.” The first two were described in the earlier post, today’s looks at the third.

Like beauty, “net neutrality” seems to exist more in the eye of the beholder than in any objective sense. This can be seen in the difficulty that attends even a simple definition of the term, and in the disparate opinions expressed for and against it.

But what can’t be disputed is that passage of any kind of net neutrality legislation would mean that government had acquired a new role in regulating the Net, with consequences certain to be both intended and unintended.

This expansion of the role of government, and concomitant reduction of the private sector, is of course no concern to groups like Free Press who, true to the “class struggle” mindset of their founder and president, worship everything governmental.

But it is a considerable concern to those corporations and investors whose labor and capital are indispensable elements in the further buildout and efficient functioning of the Net.

And this isn’t even to mention the problem, identified by the late Ithiel de Sola Pool, of the risks to free speech when a heretofore unlicensed and unregulated medium (his example was print), evolves into one that is licensed and regulated.

Given the paucity of evidence that broadband service providers have abused their roles in re  censorship or quality of service issues, and that in fact all of them have taken steps publicly and privately to allay such concerns, the wise and business-friendly thing would be for Obama and his people to declare victory in the campaign for net neutrality, disclaim any need for legislation, and move on.
 

Posted on By Patrick Maines

Obama and the Media, Part I

Writing in Broadcasting & Cable as chairman of the American Business Leadership Institute, the gifted Adonis Hoffman*       suggests that business has nothing to fear from an Obama Administration. 

Some early tests of Hoffman’s thesis will come in that corner of the nation’s economy that we care about most — the media and communications sector.  Three distinct issues come immediately to mind: consolidation, content regulation, and net neutrality.

Unless you’ve been in a coma, or trapped inside Free Press (which is pretty much the same thing), you’re aware of the pit into which much of the print and broadcast media are falling.  You also know that the proximate cause of their problems is the Internet, and the damage it has done to publishers’ and broadcasters’ business plans.

For all of this, you’re also aware of one other thing: that however much professional journalists and entertainers may disappoint, they are an essential part of any well-functioning democracy.

So given all of this, why would anyone want to deny broadcasters and publishers such business opportunities as may obtain these days through consolidation?  It’s not, after all, as though we’re talking about marrying companies that are triumphant and unstoppable.  Just the opposite.  In many smaller communities especially, we‘re talking about companies that are on the cusp of oblivion.  And while it’s hard to make the case that inter- or intra-industry consolidation comprises a solution to the crisis facing broadcasters and publishers, neither is it easy to make the argument that it wouldn’t help on the margins.

In a recent interview, Kevin Martin, whose chairmanship of the FCC has been indelibly marked by his passion for content controls, is said to have made “no apologies for his indecency enforcement, saying it was for the sake of children.  He adds that food marketing and media violence are two other places he thinks the government may need to step in….”

And so much for anything and everything to do with personal responsibility, the First Amendment, and the quaint idea that the people who own businesses are in the best position to know how to run them.

Depending on how Obama and his appointees come down on this issue, future programming decisions may well be made not by people whose primary interest is in creativity or profits, but in politics — thereby opening the door to every special interest and single-issue fanatic with designs on TV, and through it, on you.

(Next in "Obama and the Media, Part II": Net neutrality.)
*Adonis Hoffman is a member of The Media Institute’s First Amendment Advisory Council.

Continue reading “Obama and the Media, Part I”

Posted on By Richard T. Kaplar

FCC on the Offensive

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.