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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @
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The Importance of...


October 12, 2004
Regulate Speech or Free It? Responding to Sinclair Broadcast Group's Decision to Air Anti-Kerry FilmEmail This EntryPrint This Entry
Posted by Ernest Miller

Last Saturday, the LA Times (reg. req.) broke a story regarding the plans of the Sinclair Broadcast Group (owners of 62 television stations in 39 markets) to preempt regularly scheduled programming about a week or so before the presidential election in order to air a film attacking Sen. John Kerry's activism against the Vietnam War (Conservative TV Group to Air Anti-Kerry Film). Such a move is unusual:

"I can't think of a precedent of holding up programming to show a political documentary at a point where it would have the maximum effect on the vote," said Jay Rosen, chairman of New York University's journalism department.
Of course it is unusual. It would be unusual if a major newspaper, magazine, or website made a similar announcement of preemption in order to publish partisan content on behalf of a particular candidate. However, though there might be complaints about the decision to do so, there would likely be little question that the newspaper, magazine, or website had a right to do it.

That is not the case for broadcast:

Still, although broadcast stations are required to provide equal time to major candidates in an election campaign, the Sinclair move may not run afoul of those provisions if Kerry or a representative is offered time to respond. Moreover, several sources said Sinclair had told them it planned to classify the program as news, where the rules don't apply.

Calling it news, however, poses its own problems, said Keith Woods, dean of the faculty at the Poynter Institute, a journalism school in St. Petersburg, Fla., that teaches professional ethics. "To air a documentary intended to provide a one-sided view of Kerry's record and call it news it's like calling Michael Moore's movie news," he said, adding that the closer to an election that a controversial news report is aired, the "higher the bar has to go" in terms of fairness.

If you don't like what Sinclair is doing, then there are three basic responses to it:
  • Everybody Should Do It.
    If the rightwing is going to broadcast propaganda, then the leftwing should organize the purchase of a network of broadcast stations and broadcast its own propaganda.

    Not a terribly satisfying solution, however.

  • Government Regulation of Speech.
    This can be done either as regulation of broadcast through the FCC or regulation of campaign speech through the FEC.

    Either option should concern free speech advocates. Do we really want government commissions to decide what counts as "news" and what doesn't? What is fair and what is not? Does extending the mess of campaign finance reform to include ever more publishers make a lot of sense?

  • Change Broadcast Regulation to Eliminate Gatekeepers
    Might it possibly be that Sinclair's decisions are merely a symptom of the regulatory structure of broadcast, and that the best way to cure it is to change our regulatory structure? I argue yes.
Our Broadcast Regulatory Structure Made Sinclair Possible

And I'm not talking about the recent controversy over cross-media ownership that has been the focus of so much attention this past year. I'm talking about the fundamental structure of our broadcast regulatory structure.

I find Reed Hundt's comments to Josh Marshall telling (From Reed Hundt):

If Sinclair wants to disseminate propaganda, it should buy a printing press, or create a web site. These other media have no conditions on their publication of points of view. This is the law, and it should be honored.
Call me crazy, but if most other media is free to publish whatever it wants (something we call freedom of the press), shouldn't our first question be why broadcast gets treated so differently? Why isn't there freedom of the press for broadcast?

Basically, because broadcast is a government-licensed gatekeeper. Imagine if we had a Federal Newspaper Commission that decided who was allowed to publish newspapers in a particular city. Suddenly, we would have calls for a "fairness doctrine" for newspapers and other government regulation of newspaper content.

One might argue that the broadcast airwaves belong to the people and they must be licensed by the government and regulated because of scarcity. Even if there was scarcity, so what? Cellphone companies lease the scarce airwaves as well. Local telephone companies exist in part because of scarce government granted rights of way. Yet, we don't worry about them distributing propaganda, because our regulations have structured their businesses differently, so that these companies don't really care what they distribute. They are common carriers. There is no particular reason why broadcast couldn't be regulated in a similar way.

Hundt spoke of buying a website to distribute propaganda. Well, perhaps we should try to transition broadcast regulations so that broadcast acts more like the internet. Why should the government maintain a medium that requires government content regulation? Shouldn't the government attempt to structure things so that such content regulation is unnecessary?

The real scandal of what Sinclair is doing is not the propaganda, but that so many people seem to readily accept government regulations that create a perceived need for regulation of free speech.




COMMENTS
Tim on October 12, 2004 07:50 PM writes...

Freedom of the Air (ACLU)
Subcommittee on Communications
Special Subcommittee on Freedom of Communications
Fairness Doctrine

Would it make a difference if Sinclair Broadcast Group had an Ombudsman and/or there was a News Council?

What are your thoughts about the comment section and anonymity/pseudonyms as it pertains to Gillmor's Grassroots Journalism?

Permalink to Comment

Tim on October 12, 2004 07:52 PM writes...

Communications technology challenges to regulation:

Hyperlinked television research at the MIT Media Laboratory
System Manager and Hypertext Control Interface for Interactive Cable Television

Permalink to Comment

Andrew Greenberg on October 12, 2004 08:58 PM writes...

Whatever happened to conservative criticism of shadowy agitprop? (Relax guys, I'm with you on this one. I tend to agree with George Bush II's stated views prior to his flip-flop on this issue, stated in 1999 and 2000 campaign websites (see www.archive.org), that he believes that people should be free to state their political position as they see fit using whatever resources may be at their disposal, however rich or powerful they are in terms of media ownership.)

I have never been of the view that the marketplace of ideas requires anti-trust laws, even in the face of all of the obscene clowning passed off for journalistice content in unregulated cable media.

My view has always been that the best remedy for idiotic and distasterous speech, however, is loud, vociferous and corrective truthful speech. Since we live in a commercial marketplace as well, I note there exist several other alternative remedies ernest did not mention, including in particular, registration of complaints with sponsors and notice to local sales entities.

In practice, the flaw in Sinclair's approach is that it gives opposition an opportunity to speak first (procedurally as well as on the merits), a rhetorical tactic well known to lawyers: anticipate your opponent's arguments, state them in light and order most favorable to you, and then excoriate them, before they have uttered a word. Sinclair erred by the preannouncement, because now it can be exposed that this documentary is being produced by the moral successor in interest to SBVT, and further, that the arguments made therein are puerile agitprop, if that is the case.

Now, all of that being said, Sinclair has previously hidden behind its burden of public interest by refusing to air programming it deemed too politically heated, such as the television episode naming of Iraq War dead, and various pro-Dem-candidate political ads. Odd that today they find different circumstances to become first amendment absolutists.

Fact is, the law today precludes broadcast media from unqualified free speech, because of the limitied resource legal fiction. That is what it is, and has been, for decades -- well-vetted before the highest court in the land. Should that change? I think so. Should Sinclair be above the law? I think not. If we are going to hail FCC for fining shock jocks and wardrobe malfunctions, get used to the fact that the FCC DOES act as censors. I think, for the purpose of public interest, barring carefully timed and unwarranted agitprop is less onerous to me than the other conduct.

Sinclair makes millions of the public weal because of its ownership of that spectrum. Many others would like to make MORE money using the same public resource with better attention to the public interest. To that end, the following are my views: (i) Sinclair shoudl be allowed to broadcast what they will without censorship; (ii) Sinclair should suck it up for their conduct and pay the fines for their irresponsible abuse of the airwaves; and (iii) as a result, Sinclair affiliates participating in the propagandism should lose the spectrum they licensed, all of it -- it should be auctioned to other responsible entities.

That is to say -- Sinclair should be free to exercise their rights to free press, even for the irresponsible agitprop, but should be subject to the consequences of that conduct. They should be denied the privilege of that spectrum, and go buy themselves media they can own completely (which was the point of the Reed Hunt excerpt.

Should the government free completely the regulated spectrum? That is a tough issue, since it would obviously result in a tragedy of the commons. Should Sinclair be simply given the spectrum in perpetuity, because they have it on the day the law is changed? That seems clearer to me as a matter of economic policy. So what, then, is the solution? The existing structure of regulation and licensure for the public interest represents a compromise of many important issues, including personal property and freedom of speech issues. What solution? How shall we judge who shall get rich off the airwaves and who does not?

This much is known. Whatever should be, based on your answers, is not the case. The government owns the spectrum, and merely leases it for the term of the license. Use it or don't use it, you get it solely based upon

I don't know. But I have a clear sense of the best result in this matter. Opponents should try to talk sense to Sinclair management, either by means of moral suasion or failing that economic leverage. If they fail, Sinclair should be permitted to broadcast during the tenure of their license as they see fit, even the nonjournalistic agitprop. Opponents are free to find their own microphone, blog or newspaper and educate the public beforehand.

Depending what the piece actually is, what they do and how they characterize it, Sinclair affiliates should subsequently be subject to public interest inquiries and possible sanctions or loss of their licenses.

Permalink to Comment

Tim on October 12, 2004 10:01 PM writes...

I wonder how much it really matters to the public today, or especially tomorrow, that a broadcaster (or broadcast TV producer) decides to air content that is also readily available on the web; as many political ads and documentaries already are. Today, the issue simply seems to be quantitative audience and left over qualms of the defunct Fairness Doctrine.

Is there a distinction anymore between broadcast, cable, satellite, fiber ... which are all transport for a myriad of content? Public shmublic. Everything goes through the spectrum somewhere. Bundled content is transmitted. Only broadcasters are scrutinized.

In fact, if we consider progress being net savvy, linking, and a greater transparency of the process/reasoning, then why wouldn't other media attempt to incorporate and replicate web content as well?

Permalink to Comment

Tim on October 12, 2004 10:13 PM writes...

SOME PEOPLE ARE UNHAPPY that Sinclair Broadcasting will be showing the documentary Stolen Honor on its stations. The DNC is even trying to shut down the broadcast.

Permalink to Comment

Ernest Miller on October 12, 2004 10:13 PM writes...

Andrew,

I should have been more clear, I was discussing what are possible governmental regulatory approaches to what Sinclair plans to do. Of course people can boycott and petition advertisers, just as they might cancel subscriptions to a newspaper that offended them or petition the advertisers in a newspaper.

I am not at all happy about the FCC regulating indecency. I've excoriated the FCC many, many times on these virtual pages for their idiotic indecency regulations.

Yes, Sinclair makes millions because of its broadcast licenses, but that only goes to show how foolishly we've regulated spectrum. Of course we need spectrum regulation, but we do have choices about how it is structured. There is no technical requirement forcing us to use the regulatory structure we have today. Make broadcasters common carrier, for example. Wouldn't be a problem.

Permalink to Comment

Andrew Greenberg on October 12, 2004 11:47 PM writes...

Ernest,

I don't disagree with you concerning the issue in question. in the old days, when property was property, the government would issue a patent, and the rights of alienation would create a market to put the asset in the most suitable hands. That was never done for the airwaves, which were always leasted -- and with that an unfortunate hunk of regulation.

I just don't know the fair way to disconnect. do we dump all current owners, or do we give it to them outright? Neither seemed clear. Title to the spectrum would matter.

The result is the dangerously paternalistic status quo, assuming that the most monied assets would end up with the spectrum, choking less monied assets from public discourse. That assumes the scarcity argument and no alternative.

Prior to the past five years, I would also have discounted the argument that the public will not demand good, solid journalism and commercially punish pabulum-pushers and pandering propogandists engaging in pat alliterations. As it turns out, this was not the case -- if sold right, entertainment qua non-news seems to prevail and may have achieved dominance in the marketplace. I lament this, but wonder if it is simply a slump in productivity -- with the existing order soon to be replaced by entertainment qua real news? I hope so. Our discourse has been dangerously marred by the failure of reporters to report.

Permalink to Comment

Andrew Greenberg on October 12, 2004 11:53 PM writes...

Everybody should do it sucks!

I think everybody, right and left, should by now be sick of propagandism. The very worst form, however, doesn't even entail constituent-owned content. We end up in contemporary media with empty, vapid reports of extreme positions, told in he-said, she-said fashion. Whichever side postures for the media more effectively ends up winning, because neither extreme position is ever fully justified.

In the meanwhile, the truth almost always lies somewhere in the middle, and is wholly abandoned. In past years, blatant lies were called out (not as such, but effectively so), and extreme positions were properly characterized as such with reasonable and credible fact-checking.

Nowadays, fact-checking is done in a quota-based "even-handed" fashion, checking the same number of facts for each extreme. Truth doesn't require quotas, and we don't need a media that encourages and rewards the most extreme spokespersons who make the most lies.

Permalink to Comment

Ernest Miller on October 13, 2004 12:08 AM writes...

Andrew,

Actually, I don't really believe in the spectrum as property notion, unless there is some sort of common carriage requirement.

As far as the current licensees are concerned, I think we should simply due a phase out over several years. They've profited handsomely from their essentially free licenses. A few years notice ought to be sufficient for them to make new arrangements.

Permalink to Comment

Katherine on October 15, 2004 02:48 PM writes...

Ironic, isn't it? If the FCC were to actually implement the changes you propose, Sinclair would help lead the charge against them. They're a huge beneficiary of the cozy relationship between the FCC and broadcasters, particularly under this administration. Which of course is why they want to broadcast the documentary in the first place.

Permalink to Comment

Ernest Miller on October 15, 2004 04:27 PM writes...

Sinclair wouldn't be the only broadcaster opposed to my reforms. It would be a bipartisan effort among broadcasters and their Congressional clients, I imagine.

Permalink to Comment

Geoff Howland on October 25, 2004 09:39 AM writes...

The air waves are: limited, public, and are a 1-to-many operation.

There are only a limited number of channels receivable by televisions over the airwaves. This means that not everyone can run an over-the-air-broadcasted television station. Contrast this to how web sites work, where the only limit is the number of domain names. There can be millions of domain names, and less than 50 broadcast television stations in any area (this is a generalization, it's usually less in reality). Newspapers and magazines also can be printed under any name and sold in a number of locations or mailed directly, and there are indeed hundreds of mainstream and thousands of lesser mainstream publications. Radio shares the same limitations as television, so it should be assumed they are equal in this discussion.

With non-broadcast publications it is at least possible to create alternative sources of information that contrast with the views of other publications, additionally most other mediums require subscriptions (even if free) to have the information delivered. With broadcast television, the limited supply of channels and the cost of attaining a license and running a station makes this prohibitive. If the line-up of content is not subject to providing equal time for opinion (in appropriate time slots) and factual information as news, then it can be said that the ability to communicate messages to the public can be controlled a small number of publishers with no ability for those who disagree to offer an equal counter point.

Being public means that everyone receives what is being broadcast. Every television receives the same 50 television station frequencies. Web sites are, at any time of use, a connection between 1 user and the server that runs them. While many people can connect to a web site, all computers are not limited to the same 50 web sites. They can reach any, and currently while there are defaults and preferred places to go, your computer can go to any of them. Most other mediums require a subscription to have the materials delivered, or have to be picked up in a store, which makes them much less public even though publicly available.

Broadcast television stations are 1-to-many because for any single station, there could be millions of viewers simultaneously and passively watching. Viewers do not even have to try to watch what is on the channel, as they could have been watching something earlier and not changed the channel. They only have to have their television on, and tuned to a channel to receive a message. Contrast this to viewing content on the web which takes a much more active effort. It requires clicking on specific content you wish to view which is generally short and directly on the topic to what the viewer requested. Print media also takes more effort since even if you receive a magazine there is no requirement to read it, and selective portions can be skipped which is less likely to happen in the passive medium of television since it's harder to tune out of hearing and seeing something than it is to not read a portion of a magazine.

These reasons are why it makes sense to have a governmental gatekeeper system. I do not agree with all of restrictions on television that we currently have, but it certainly makes sense that there are some ground rules for a medium that is so limited, public, and reaches so many people with a single message.

In one of the most important days in the country, the single day everyone is told to vote and then the votes are tallied, allowing interference with this process is something that certainly should be considered.

Is it a right of free speech to spread information that is known to be factually untrue to the voting public directly before an election? Should it ever be legal to classify partisan programs designed to only cast doubts without substantial proof and based primarily on dissenting opinions?

Free speech is important. No one should be restricted or afraid to speak their mind in private or in a personal situation in public. Speaking to a group, on television or on the radio is not a personal situation in public. You are not speaking to a few people immediately around you, you could be addressing thousands to millions of people. What you say could incite panic or violence. It is known to be illegal to yell "Fire" in a crowded public area when no fire exists. It is known to be illegal to talk about hijacking in an airport. Should it be legal to incite groups to violence or harassment based on racial, religious or other prejudices?

Most of these are seen as common sense restrictions on the right to free speech in public group situations: speaking with the intent to influence in a way that definitively and directly harms society. When you are discussing mass transmissions from controlled, public, limited mediums this issue is now beyond someone's ability to speak their mind and moves into the domain of embedding information into other peoples minds. Where should the line between an individual's right to speech and societies right to safety and factual information disseminated over public mediums be drawn?

If the television is a primary source of gathering news, real information about what is going on, and information or shows are being displayed as non-fiction that are one-sided opinion pieces or factually incorrect, then the public's right to factual information so that they can help decide the fate of their nation overrides any journalists or publishers right to say or show whatever they want over the public airwaves.

It makes sense that speech is limited where it can dramatically and definitively harmful to society. As the level of trust in a medium goes up, the ability for damaging misinformation or inciting violence rises. The public airwaves that are licensed to a limited number of companies have become, and indeed tout themselves as, places to get accurate information. If the information these limited message carriers send out to the public is really false and opinionated information dressed up as facts timed to manipulate important events that shape society, then it should be easy to see that the licenses granted to the broadcasters to reach the public are being abused.

Permalink to Comment


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Understanding Sinclair and Getting Even from Discourse.net It’s not news that ‘freedom of the press belongs to he who owns one’. And even in this Internet age of ‘everyone a publisher’ the fact remains that TV remains the dominant media form in the US, and much of the world. Sincl... [Read More]

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