Category: Uncategorized

Posted on By Patrick Maines

Fox News and Its Critics

Criticism of the Fox News Channel by the Obama Administration is neither inexplicable nor unprecedented.  But the response to this flap by the press is all of that and then some.  From the near-total silence of most, to the blinkered and self-righteous response of a few, the affair casts an unflattering light on the mindset and pretenses of much of the Washington press corps.

Take, for instance, Jacob Weisberg (please).  Here’s a gentleman who, when not inflicting his shrill and politically marginal opinions on the three or four people who still read Newsweek, presides over Slate, an online magazine that counts, among its reporters and editors, precisely one (out of 57) who voted for John McCain in the last presidential election.

It’s with these credentials that Weisberg wrote the following on Oct. 17: “Whether the White House engages with Fox is a tactical political question.  Whether we journalists do so is an ethical one.  By appearing on Fox, reporters validate its propaganda values and help to undermine the role of legitimate news organizations.  Respected journalists … should stop appearing on its programs.”

The very idea that “respected journalists” might advance journalistic ethics by ostracizing another media company solely because of the perspective that company brings to the news of the day — as though other news organizations were value-free vessels of the purest objectivity — is hundred-proof claptrap.  That this corrosive idea is the brainchild of a journalist says much more about him, and about journalists generally, than it does about the facts at issue.

Not to put too fine a point on it, the great disconnect in our national dialogue (and the reason for the popular success of Fox News) is that the press corps, and the journalism they produce, skew center-left in a country that is overwhelmingly center-right.  It is (fortunately) true, as Marxist and other leftist critics are wont to complain, that the media are to the right of them.  However, the media are most assuredly not to the right of the electorate, but to the left, and that’s a problem — first for the country, and also for media companies themselves.

Still, it’s one thing to have mainstream journalists who are out of sync with, and resented by, millions of people, and another thing entirely to have journalists who are unwilling to rally around a news organization under assault by this or any White House.  Worse still, of course, are those, like Weisberg, who actually join the assault and invite others to do likewise. 

Posted on By Patrick Maines

The Knight Commission: Much Ado About Nothing

As in the title of the book about Southern belles, We’re Just Like You, Only Prettier, the report of the so-called Knight Commission, released on Oct. 2, is in some ways amusing and in other ways annoying.  It amuses in the way that it showcases the most pedestrian observations, as though they were the product of unique and weighty cerebration.  It annoys in the way that it pretends to a kind of grandeur and perspective – at precisely that moment in history when either would be useful – that it simply doesn’t possess.

Officially called the Knight Commission on the Information Needs of Communities in a Democracy, the Commission is a collaboration of the Aspen Institute and the Knight Foundation (assets pushing $2 billion), which paid for it all.  Early on the report makes clear that this is a commission with uncommon ambition and a high regard for itself.

Referring to the earlier Hutchins, Carnegie, and Kerner commissions, for instance, the Knight Commission co-chairs write: “In pursuing our work, we have been well aware that we are following in the path of other (emphasis added) distinguished Commissions.”  This, while a “background” document states that the Commission’s goal is to “start a national discussion – leading to real action.”

Given such a lofty calling one would expect the Commission’s observations to be trenchant and uniquely insightful.  One would be wrong.  From the foreword to the appendices, the Knight Commission report is a veritable cornucopia of the mundane, sortable into three categories: things that are already happening, and should be (like rapid broadband deployment by the private sector); things that are happening, and shouldn’t be (like the codification of the FCC’s net neutrality principles); and things that are not now happening and never will.

The best example of the latter comes in the Commission’s recommendation number 12 (of 15).  So as not to lose any of the rhetorical flavor of this recommendation, I quote parts of it verbatim: “Imagine,” they say, “a ‘Geek Corps for Local Democracy’ where, as a post-college opportunity, American youth volunteer to help connect a physical community to the networked infrastructure….  Geek Corps participants would teach community members how to use technology….  A Geek Corps would weave together the local and the national through networks of passionate youth.  Ideally, such a program would have the same stature as the Peace Corps or AmeriCorps, such that participants would be welcomed into jobs with open arms.”

Open, shmopen.  The notion that vast numbers of “post-college” American youth would (or should) line up for such a thing is the kind of idea that is dreamed up only by government bureaucrats – and nonprofit organizations that think like them.  How about getting or creating a job in the networked infrastructure, paying taxes, and buying things with whatever’s left over as might help the economy?

Speaking of rhetoric, that’s the other thing about the Knight Commission report.  Approximately every other paragraph, even the short ones, has the density of a black hole, so that after wandering into the first sentence you find yourself being stretched thin, like a strand of linguine, and by mid-graph frantically searching for a way out of the thing.

This said, if the only problems with the Knight Commission report were its immodesty, dense language, and commonplace insights, one could just ignore it completely and go about one’s business.  Unfortunately, however, the report is also marred by something else, specifically the timing and nature of its recommendations in the context of what is happening in the real world.

As it happens, on the very day that the Knight Commission released its report (on the premises of Freedom Forum’s Newseum, another billion-dollar foundation) the government announced that unemployment in the United States had reached 9.8 percent, and that more than 7 million people have lost their jobs since the onset of the current recession.

It is also a time when there is scarcely a state or municipality that is not on its financial uppers; when the national debt and federal deficit are at record highs; and when personal bankruptcies, home foreclosures, and credit card defaults are in the stratosphere and climbing.  To say that these data constitute an ongoing tragedy, and the deepest kind of threat to every person in this country, is not the tiniest exaggeration.

Enter into this environment a Knight Commission report whose recommendations are notable mostly for their exquisite attention to what, in the realm of communications policy, are little more than politically correct platitudes.  In this fashion, the report endorses things like governmental transparency, higher education, public libraries, broadband availability, net neutrality, diversity of media ownership, young people, old people, and ensuring that “every local community has at least one high-quality online hub.”  (If only there’d been an opportunity to say something about global warming.)

In other words, the Knight Commission report is frivolous and ill-timed.  This is the kind of report – with its recommendations of greater funding for public broadcasting, “public digital displays of news and culture,” a “federal tax credit for the support of investigative journalism,” and the aforementioned Geek Corps for Democracy – that should be released, if at all, only at a time when the country is so prosperous that people who should know better might actually go for it.

It didn’t have to be like this.  It would have been possible, even at this time, to create a commission that investigated the information needs of communities, in the context of our economic crisis, that was relevant and helpful.  It just didn’t happen.

To paraphrase Groucho Marx (“I’ve had a wonderful night, but this wasn’t it”), you can find some stimulating ideas about the future of journalism and the information needs of communities, but not in this report.

Posted on By Patrick Maines

Keeping the Bluest of the Blues Alive

For those whose professional lives are spent in or around politics there is often a yearning for something that unifies.  This, because even at its best politics is a science of division, where people are separated – by class, philosophy, interest, geography – into voting blocs.

This yearning helps explain the extraordinary popularity, in Washington, of the Redskins, one of the very few interests in the nation’s capital around which people of every belief can and do rally.  Art is another such interest – where, that is, it is innocent of overt political manipulation.

So it is, for some of us, with blues music, the musical form created by African-Americans in the South in the late 1800s, and which has contributed so much to jazz, rhythm and blues, and rock and roll.

Reference is often made to particular genres or styles of blues music – such as the Delta, Piedmont, or Chicago blues – but in the opinion of one who has studied this matter closely, the reality is a little more complex.  The truth, according to Tim Duffy, is that the music played even by musicians who are said to be of a certain style is highly individualistic, a fact that takes on a special poignancy given the advanced age of so many of these musicians, many of whom have never even been recorded and who live, in their old age, in poverty.

In an effort to assist these people, and to preserve and promote their music, Duffy and his wife, Denise, formed the Music Maker Relief Foundation (MMRF) in 1994.  Sporting the motto, “keeping the bluest of the blues alive,” MMRF assists in myriad ways: by providing everyday living expenses for some, and by recording and arranging for promotional tours, here and abroad, for others.

A perfect example of what a national treasure is at stake can be found in the life and music of the late Etta Baker.  The woman whom NPR referred to as the “world’s premier Piedmont-style blues guitarist,” Baker played the guitar and banjo from age 3 until her death, a few years back, at 93.  Her skill and renown notwithstanding, it wasn’t until 1991, when Etta was 78, that her own first (authorized) recording was released.  You can listen to some of her works, available on the MMRF website, here.

On Oct. 15, The Media Institute will host its 18th annual Friends & Benefactors Awards Banquet.  As we always do on such occasions, we are going to recognize the good works of some people in government and the media.  But this year we are also going to salute the Music Maker Relief Foundation, for the role they play in advancing and preserving this uniquely American form of speech.

Posted on By Patrick Maines

Chairman Genachowski’s Modest Proposal re Net Neutrality

FCC Chairman Genachowski’s proposal to extend and codify the FCC’s “Internet principles,” delivered in a speech just yesterday, has already attracted a substantial amount of commentary.  There is no doubt that his proposed rulemaking will be the subject of much literature issuing from The Media Institute proper, and in this space as well, in days to come.

For now, however, just a few observations, in no particular order of importance: First, for those of us who take a perverse delight in the use and abuse of language in policymaking circles, there is much that is droll in the way that industry players have responded.  Like a man about to be executed, seizing on the offer of a last cigarette as a chance to spin or delay the inevitable, many of the broadband access providers’ comments seek to glom onto some part of the chairman’s proposal as will allow them to buy time.

Thus have several of the companies, and their associations, complimented the chairman for promising an "open proceeding" or some such.  Not to be smug, if we at The Media Institute were lobbyists we too would probably say such things.  Since, however, we are not, we can speak more plainly.

The reason this proposal has come into being, and will undoubtedly be passed in some form, is not because of some new threat (or old threat, for that matter) to the “free and open” Internet.  Rather like blaming, as someone once said, the Johnstown Flood on a leaky toilet in Altoona, the record of “abuse” by broadband providers is so inconsequential it doesn’t begin to explain the need for such an intrusion into the marketplace.

No, the reason this proposal is at hand is because of something more prosaic.  It is, would you believe, because of politics.  It is because there are now three Democrats on the Commission and only two Republicans.  (Some would argue that even during Kevin Martin’s reign there were three Democrats, but that’s another matter entirely.)

The best evidence that this is the case can be seen in comments from inside the FCC itself, specifically those of the Republican commissioners, McDowell and Baker.  Not only do they express skepticism about the wisdom of the proposed rulemaking, they openly question whether “factual and legal conclusions may have been drawn before the process has begun.”

Back in the day, at the dawn of the Internet, the concern was that the FCC not become the Federal Computer Commission.  That was then and this is now, but the concern that animated that sentiment survives.  It is that the government is a poor substitute for the marketplace in allocating resources.

Because Chairman Genachowski knows that the strongest criticism of his proposal is that it will frustrate investment and innovation in the broadband space, he looks to preempt the argument by denying it.  His plan, he says, amounts only to “rules of the road” that will actually stimulate investment and innovation.

Well, time will tell but the view from here is much less rosy.  The greater likelihood is that: (1) There will be less private sector investment than would otherwise be the case; (2) that the investments that are made will come from tech firms that employ a peculiarly large number of lobbyists; and (3) that when the dust settles, the only lasting impact will be in the legal precedent established by putting the camel’s nose of government under this particular tent.

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

Citizens United and ‘Hillary: The Movie’

If you’re feeling, like so many of us, that our life and times are too harmonious, smart, and principled, you might welcome something completely jumbled, uninformed, and hypocritical.  If so, here’s just the thing: an article by E.J. Dionne of The Washington Post.

The subject of Dionne’s piece is a case — Citizens United v. FEC — scheduled for oral argument today in the Supreme Court.  Like so many when reporting this story, Dionne employs the journalistic equivalent of the magician’s trick of misdirection when telling his tale.

Thus does he direct the reader’s attention not to the specifics of the case itself — which is whether the execrable campaign finance laws (read: McCain-Feingold) can constitutionally suppress free speech, and political speech at that — but to the imaginary threat that, if decided wrongly, the case “could surrender control of our democracy to corporate interests.”

What, you might wonder, could cause such fear and trembling?  A plot by corporate giants to make every man, woman, and child read The Wealth of Nations?

Well, not if it’s the Citizens United case.  Because that case isn’t about a corporate giant, but rather a small nonprofit activist organization, and its “crime” was the production and would-be distribution of a political film, called “Hillary: The Movie.” 

Now you might not like this film (if you’re a fan of Hillary you definitely wouldn’t like it), but nothing could be clearer than that this is political speech, the kind that, outside the confines of the election laws, has always occupied the highest reaches of constitutional protection under the First Amendment.

Dionne’s misdirection technique also turns a blind eye to another interesting fact: The campaign finance laws that prevent the airing of issue ads x number of days before federal elections don’t apply to newspapers, but only to the broadcast media, cable and satellite included.

Call it cynical, but some might wonder if this fact helps explain the embrace of McCain-Feingold by so many newspaper columnists and editorialists, and newspaper publishers, for that matter.

One of the problems attending any attempt to create what our associate, Professor Larry Winer, refers to as a “unitary” First Amendment is that so many people on the front lines of this battle, like reporters, demonstrate little or no interest in defending the First Amendment rights of anyone but themselves.

Thus can one count on one hand the number of mainstream media reports that have been critical of campus speech codes, or any manner of political correctness– or the suppression of political speech, as demonstrated in Citizens United.

It’s not a pretty picture.

Posted on By Patrick Maines

The AP and Joshua Bernard

The decision made by the Associated Press to publish a photograph of a mortally wounded Marine in Afghanistan has been condemned by many, including the slain soldier’s family and Defense Secretary Robert Gates.

The photo itself is both horrifying and heart wrenching, as it shows Lance Corporal Joshua Bernard clinging to life as he lay in the mud, one leg completely severed and the other badly mangled, the result of a rocket-propelled grenade fired during a Taliban ambush.

Though the photo was taken on Aug. 14, the AP didn’t release it until Sept. 4, after the slain soldier’s burial, and after having shown several photos from the scene to Bernard’s family.

The view from here is that the AP did the right thing.  What, after all, do we imagine?  That when a U.S. soldier dies on foreign soil his passing is like that of a stateside family member, sedated against pain and surrounded by loved ones?

Lance Corporal Bernard paid a terrible price — the ultimate price — in service to his country, and for us not to be able to look his death in the face is not only cowardly and intellectually dishonest, it robs Bernard’s sacrifice of any meaning, as though he just wandered off peacefully somewhere, a quiescent statistic.

To express such an opinion is not to utter a single word either for or against the war in Afghanistan.  That is another issue.  Rather, the point here is that, when it comes to matters of life and death in direct consequence of government policy, we owe it to those in harm’s way, and to ourselves, not to sugar coat or sanitize the brutal results.

In recent months the AP has made some serious mistakes in judgment, most recently in the decision to distribute so-called “investigative news stories” paid for by nonprofit organizations with a political agenda.  But the decision to publish the photo of Joshua Bernard was not a mistake.  It was, instead, exactly right.

Posted on By Patrick Maines

The Washington Post’s Health Care Coverage: The Whole Megillah

The Washington Post published last Sunday what is probably their best piece ever about the health care debate.  The irony is that the story was written not by a Post reporter but by the newspaper’s ombudsman, and the thrust of his article was reader unhappiness with the superficiality of the paper’s coverage of this issue

As one of them put it, "’Your paper’s coverage continues in the "horse race" mode.  Who’s up, who’s down … political spin, personal political attacks.’"

Lamentably, the same could be said about much of the mainstream media’s coverage of health care, and not just of health care but of a range of public policy issues, particularly those with an important economic component.

Consider, for instance, the remarkable announcement that issued from the White House on Aug. 25.  The federal deficit, they said, would rise by $9 trillion during the 10-year period from 2010 to 2019.  This amounted to an increase of $2 trillion more than the White House had estimated as recently as February.

Now if, at the very moment that announcement was made, the entire West Wing had collapsed into rubble, and the head of the OMB been struck deaf and dumb, the news might have taken on a kind of visual impact both for the media, and for the rest of us.

But there were no visuals, and so the news was reported in much the same way that TV news anchors announce a jump in the pump price of unleaded.  It was big.  It was a number.  It was Yet Another Example of Mankind’s Fatal Flaws.  (The news anchor’s burden, you know, stories like these.)

In other words, it was nothing at all.  Nothing anyone could be expected to relate to or get a handle on.  Five minutes after hearing the news so reported, the only concern on most people’s minds was what they were having for dinner.

And who could blame them?  For most people a billion dollars is hard to imagine; a trillion is incomprehensible.  And that’s the very point.  The missing ingredient in media coverage of the health care debate, and of the nation’s fiscal policy, is not what the polls or pundits are saying.  Nor is it insight into how politicians plan to spin or parlay these issues to their advantage.

The missing ingredient is the economic impact.  How, for instance, will the government finance such large deficits?  What will the impact be on the credit markets?  On the U.S. dollar?  With the government commanding so much of the investing pie, will there be enough left over to fund private sector needs?  And if so, at what interest rates?

Assuming a constant velocity in their capacity for error, what’s to stop a deficit that is said to have risen 28 percent in the past six months from rising another 28 percent in the next six?

Similar questions mark the health care debate.  What’s the plan?  Is it to provide insurance for people who currently have none?  Or is it to put a brake on rising costs?  Can a plan that attempts to do both really be “deficit neutral"?  And if it’s not, what’s the downside to that?

In the same piece cited at the beginning of this note, the Post’s ombudsman links to an earlier story written by a former reporter.  Called “Myths About Health Care Around the World,” this article provides some useful, if not completely convincing, perspective on the health care debate.  The author points out that Medicare, after all, is a government-run program, but he also points to countries like Japan and Germany that have private insurance with private doctors and hospitals and very efficient systems.

Reading it, one gets the inkling of an idea that perhaps there is a route to meaningful and beneficial health care reform, but it’s unlikely to happen if the media, through their pursuit of "horse race" and politicized coverage of this issue (the Pew Foundation says 72 percent of the Post’s stories were of this sort), keep people in the dark about the important details.

That way lies nothing but anger, frustration, and contempt — first for the politicians but, just a short step behind, for the media as well.

The Washington Post’s ombudsman appears to understand that now.  When will the paper’s editors and reporters?

Posted on By Richard T. Kaplar

More on Newspapers and Aggregators

If newspapers ultimately survive, they might owe a debt of gratitude not only to Rupert Murdoch (as Patrick Maines suggested here recently), but also to two brothers who have combined their expertise in economics and the law to analyze the problem and come up with a potential solution.

As I wrote here earlier this month, online aggregators quite possibly could kill off newspapers by pirating the papers’ original news content.   Among the industry watchers who have studied this phenomenon are Daniel Marburger, Ph.D., a professor of economics at Arkansas State University, and his brother David Marburger, Esq., a partner at the Baker Hostetler law firm in Cleveland.   

The brothers have conducted an extensive analysis of both the economic and legal frameworks of the newspaper industry (print and online), and how these frameworks intertwine in the digital age.  In a number of papers and articles, the Marburgers have gone beyond the usual observations in two important ways: (1) They draw a distinction between “pure aggregators” and “parasitic aggregators”; and (2) they suggest a way of closing a loophole in copyright law that would seriously curtail the so-called parasites.

“Pure aggregators,” they say, use only a headline and maybe a sentence from the original news source, and then link back to that source (i.e., a newspaper website).  Pure aggregators are economically good for papers on balance because they drive readers to the newspapers’ websites.

“Parasitic aggregators,” on the other hand, take content from newspaper sites, rewrite it a bit, and then pass it off on their own sites.  These parasitic aggregators are bad because they retain readers rather than drive them to the newspapers’ sites.

In the Marburgers’ longest paper on the economic viability of newspapers, two section titles sum up the problem and its effect: “The federal copyright act allows parasitic aggregators to ‘free-ride’ on others’ substantial journalistic investments”; and “If the law does not change, newspapers continually will diminish their journalistic resources until they can subsist only by underproducing news or until they go out of business.”

The Marburgers’ solution would allow newspapers to seek redress for unfair competition under state statutory or common-law remedies for unjust enrichment – remedies that federal copyright law has in effect precluded since 1976.  They’re not suggesting a new law – just an amendment to Section 301 of the Copyright Act.

In this short space I am oversimplifying the Marburgers’ excellent analysis and recommendations – but I hope I can help draw attention to a thoughtful paper that is worthy of serious consideration and widespread recognition.   

Posted on By Patrick Maines

Another Chance to Undo McCain-Feingold

 

A case scheduled for argument next month in the Supreme Court provides another opportunity to drive a stake through the heart of the worst part of the abominable campaign finance law, commonly referred to as McCain-Feingold.

The case (Citizens United vs. FEC), comes in the wake of an earlier Supreme Court decision carving out an as-applied exemption for “electioneering communications” (read: issue ads), save where the communication “is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”

Welcome as this exemption was and is, the problem, as explained nicely in an amicus brief filed on behalf of ten state broadcasters associations, is that because it requires speakers to make complex and risky decisions about the legality of these ads, the law has a chilling effect on speech.

This case would not have been necessary had the Court done the right thing in 2003, in McConnell vs. FEC, or in 2007, in Wisconsin Right to Life, and thrown out, for its facial unconstitutionality, the whole of the electioneering communications part of the law, Section 203.

In 2002 the Media Institute filed an amicus brief in McConnell, arguing that this aspect of the Bipartisan Campaign Reform Act was an impermissible restriction on political speech, and in 2007 we filed comments with the FEC, in company with the Thomas Jefferson Center.

Here’s hoping that the current case yields the eradication of this most offensive section of this  odious law.