Tuesday, October 12, 2004

A SMALL MATTER OF FREE SPEECH. Sinclair Broadcast Group's decision to order 62 of its television stations to air a vicious anti-Kerry "documentary" in the closing weeks of the campaign is loathsome, of course. But what I find fascinating is the ease with which Democrats and liberals are ready to trample over the First Amendment in order to keep Stolen Honor off the air.

This morning, I heard syndicated progressive talk-show host Stephanie Miller ask rhetorically, "That can't be legal, can it?" The Democrats are moving on two fronts. The Democratic National Committee plans to file a complaint with the Federal Election Commission, charging that the broadcast amounts to an illegal in-kind campaign contribution to Bush-Cheney. And 18 Democratic senators will ask the Federal Communications Commission whether broadcasting Stolen Honor just before the election amounts to an improper use of the public airwaves.

So much for freedom of speech, eh?

Now, granted, there are all kinds of ironies and hypocrisies involved here. Last night, on CNN, Washington Post media reporter Howard Kurtz observed how outraged conservatives would be if any of the broadcast or cable networks had decided to show Fahrenheit 9/11. By contrast, the Sinclair story isn't getting much attention. CNN anchor Aaron Brown looked as though he had accidentally swallowed a cockroach as he interviewed Sinclair's unctuously disingenuous spokesman, Mark Hyman. As well he should have. What Sinclair is doing is sleazy political gamesmanship.

But in a perfect world, there would be nothing wrong with what Sinclair is doing, at least not from a constitutional, legal, or regulatory point of view. Then again, in a perfect world, Sinclair would not own 62 television stations. It might own a handful in different parts of the country. And other media companies would face the same ownership restrictions.

If 62 independent television-station owners decided to show Stolen Honor - or Fahrenheit 9/11, for that matter - well, what of it? It's the magnifying effect of huge media conglomerates that's the concern here. One decision in one corporate suite, made by executives who've given money to the Bush campaign and who depend on the regulatory favors of the Bush-appointed FCC, and anti-Kerry hate propaganda is broadcast from coast to coast.

In the current monopoly environment, it's hard to disagree with the Democrats. Still, shouldn't we be just a little uncomfortable with the notion of demanding that the government censor (and censure) speech that we don't like?

The title of Nat Hentoff's 1992 book, Free Speech for Me, but Not for Thee, says it all.

COMPUTER WOES CONTINUE. For the third and what I hope will be the final time in less that three months, I am without the official Media Log iBook. This time, the problem is the internal Airport (i.e., WiFi) antenna, which is apparently disconnected or frayed. Blogging will be affected, but not too much - I hope.


Steve said...

Do you have a reaction to Reed Hundt's letter to Josh Marshall? (http://www.talkingpointsmemo.com/archives/week_2004_10_10.php#003648)

Dan Kennedy said...

There are many people who are willing to censor at the drop of a hat in the name of all that is good and true. Reed Hundt might be among them; Josh Marshall too. But I don't want to prejudge, because in the current media environment I would probably go after Sinclair, too.

What troubles me is that Hundt advocates a standard for television that would be flat-out unconstitutional if applied to print. The only reason that broadcasters have limits on their First Amendment rights is because of scarcity - that is, the airwaves are publicly owned, and they're a limited resource that must be divvied up. Theoretically, you or I could start a major metropolitan newspaper tomorrow. But we couldn't start a television station, because we would need to use a broadcast frequency that someone else now has.

But we're heading for a time when there will be no scarcity. If you can have hundreds of channels via cable or satellite, or a theoretically unlimited number of channels on the Internet, then what is the argument for regulating them? "The public interest" sounds nice, but we don't force newspapers or magazines to serve the public interest, and the First Amendment make it eminently clear that we can't. At some point, technology will enable television to take its rightful place as an equal partner when it comes to the First Amendment.

So I guess I agree with Hundt and Marshall. I'd just feel better if I could see them squirm a little bit.

zadig said...

Sorry, but there's more freedom for print and cable than broadcast for a reason: print and cable pay for their own damn methods of distribution. When you get access to the public airwaves for paltry sums of money and rake in the bucks by exploiting that public reasource year after year after year, you have to put up with a few more restrictions.

Just because equal access restrictions were taken off the books doesn't mean a station can set up a 24-hour-Bushathon (or Kerrypalooza, for that matter) in the weeks up to the election. That's not a proper use of a public trust.

If you make your living off of the public's resources, the public gets to have a say. If they don't like it, they can give the airways back.

Anonymous said...

AFAIK there's nothing stopping Michael Moore from using his fame and money to organize thousands of public-access cable TV channels across the country to air "Fahrenheit 9/11" all at the same time. Or better still, air it for five nights in a row at the same time.

Certainly these public access channels' schedules are not so full they couldn't make a little room for one week. All too often I see the automated schedule slate with local radio Muzak playing in the background on public access channels around Boston. And getting 1000's of public access channels would inherently generate enough publicity by itself that there'd be plenty people watching.

Anyone got a line to the crew at the Michael Moore camp?

Anonymous said...

Correct me if I'm wrong, but what about slander/libel? If the Sinclair special attacks Kerry with false or grossly exaggerated claims, is that still protected? Or does one have to wait until it is already broadcast/published--and damaged the target's reputation--before one can sue?

It's not like Kerry can sue Sinclair for the presidency after the fact.

That said, rather than trying to sue and get the show off the air, I think a better tact--and the one being used by the Democratic underground--is to inundate Sinclair with calls and to contact advertisers and tell them you won't buy their products if they air on those stations.

Anonymous said...

Michael Moore is sort of doing this. He's putting together a pay-per-view special called something like the "Michael Moore Pre-Election Special." Apparently, it will mainly be the movie with some extra stuff, but due to contractual obligations, he can't promote it as such.

E! On-line has something about it here.

Still not the same as free TV though...

Anonymous said...

As usual, the left, (Michael Moore) is doing this with someone else's money (Pay-per-view)while the right, (Sinclair) is putting their money where their mouth is. This will unquestionably cost them ad dollars. After Farenheit 9/11, the left are hoist on their own petard, eh? Props to DK for having the stones to address hypocrisy on BOTH sides..

Brian McFadden said...

Theoretically the 500 channels of cable should make a level playing field and allow partisan hacks to show whatever they want. But broadcast tv is still how the majority gets all of its news and entertainment. Reagan and Clinton are both to blame for allowing a select few to control so much of what people. But the people who are so easily swayed by what they see on TV should share some of the blame.

Freedom of speech doesn't really work when it only applies to those wealthy and fortunate enough to own a station.

And showing Farenheit 9-11 on public access isn't really analogous. Sinclair owns legit stations and likely has a built in audience expecting to watch something else.

Anonymous said...

OK, so Sinclair owns stations affiliated with ABC, NBC, CBS, FOX, UPN and the WB. How ironic that the big three networks refused to run commercials for the DVD release of Michael Moore's Fahrenheit 9-11 during the nightly news--not the actual film, mind you, but a commercial for it--because they feared it'd influence the election. Too bad they don't have such concerns about a 42-minute campaign commercial made by a former columnist at Rev. Sun Myung Moon's ultraconservative Washington Times.

Anonymous said...

Dan, I think the free speech issue here is that Sinclair is abridging the rights of those who presumably wish to rebut the "Stolen Honor" film. Suppose I were to set up my own TV transmitters on the same frequency as Sinclair's, so that anyone who tuned in could immediately hear my response. Well, I can't do that because of a law that says only Sinclair may use that frequency. If that law is enforced, then my free speech has been abridged, which is unconstitutional. So what if there are cable and satellite channels available? It doesn't change the fact that a particular speech act has been disallowed. So for Sinclair's license to be constitutional at all, some compromise must be made for those who wish to respond. If Sinclair agreed to broadcast a rebuttal, this issue would go away.

(And please remember, this is the same Sinclair that ordered its ABC stations not to broadcast Ted Koppel when he read the names of soldiers killed in Iraq, claiming that Koppel was making a political statement. Sinclair has already abridged the free speech rights of others, under the protection of law.)

The proper legal response is not to enforce Sinclair's licenses. And people are now planning to challenge the licenses as they come up for renewal. Another response is to complain to Sinclair's advertisers, who pay for the broadcast, and people are doing this. Free speech certainly does not mean that others should be required to fund it.


Dan Kennedy said...

Sinclair has invited Kerry on to rebut the charges. Doesn't that count? Kerry has apparently refused, and I don't blame him - why should he participate in his own smearing? But it does strike me that Sinclair has made exactly the offer you suggest.

Anonymous said...

Dan writes:

> But in a perfect world, there would be nothing wrong with what
> Sinclair is doing, at least not from a constitutional, legal, or
> regulatory point of view. Then again, in a perfect world, Sinclair
> would not own 62 television stations. It might own a handful in
> different parts of the country. And other media companies would face
> the same ownership restrictions.

Other posters have pointed it out, but I need to jump in and add my
voice to theirs. Sinclair is the holder of 62 broadcast licenses from
the FCC. Broadcasters are held to a very different standard than cable
or satellite television providers, for the simple reason that you
acknowledge in a later post -- namely, that broadcasters are making use
of a limited public resource, and thus have an obligation (however
nominal) to serve the public interest. This is fairly elementary stuff,
and I'm surprised that as a veteran media analyst, you didn't
acknowledge the "public interest" obligation of broadcast media in your
original article.

Inviting Senator Kerry on to a panel program to "answer" the charges
against him is not the same thing as providing an equal amount of
airtime on all of its stations to a Kerry partisan who could show any
program they chose, produced by anybody they selected, on a topic of
their own selection.

I don't find it chilling at all that lawyers for the DNC and the Kerry
campaign are trying to force a broadcast station owner to behave in
accordance with statutes and FCC regulations, especially when the
stakes are the Presidency and the future of these United States.

> The title of Nat Hentoff's 1992 book, Free Speech for Me, but Not for
> Thee, says it all.

I think the more relevant quote you're looking for comes from
A. J. Liebling: "Freedom of the press is limited to those who own one."

[btw - I don't have or want a Blogger account, but you can email me at politicalsteve@noiselabs.com ]

Anonymous said...

Dan, inviting Kerry to a panel discussion is NOT exactly the offer I suggest. Kerry should be offered equal time, to be used in any manner he chooses. I agree with Steve's comment above.