Monthly Archives: October 2004

The Sinclair Broadcasting Group, owner of the largest chain of television stations in the Nation, including 20 Fox stations, has apparently decided to preempt its regular programming to show a documentary that alleges that Kerry “betrayed” American prisoners during the Vietnam War. This contrasts with the judgment of other broadcasters, including, for example, CBS that decided it was “inappropriate” for them to run a program about the intelligence [sic] behind the President’s decision to invade Iraq.
I criticized CBS for its judgment about propriety. From its description, that show seemed to me plainly “appropriate” before an election that would decide, in part, whether the President’s decision was one America wanted to ratify. By contrast, I thought its decision to air a show about the President’s service in the National Guard was inappropriate — not relevant to this election.
I’ve not seen the Sinclair documentary (indeed, there are conflicting reports about whether it is in fact completed). From its description, it seems to me to be closer in content (but not in viewpoint) to the show CBS did show, and further from the show CBS decided was “inappropriate,” and so I expect, on the principle I’ve articulated so far, I would criticize the Sinclair decision. Maybe not, depending upon the content, but probably.
Many have criticized the decision to show the documentary on legal grounds. They have called upon the FCC to stop the broadcast � an extraordinary action for any government actor to take (almost as absurd as stopping a recount from a First Amendment perspective) � and Chairman Powell has indicated, on First Amendment grounds, that he won’t stop the broadcast.
No one thinks there’s a First Amendment problem when the New York Times endorses Kerry, or the Wall Street Journal endorses Bush. And no doubt, the difference between Sinclair and these newspapers is, one could say, just a difference in degree.
But differences in degree become differences in kind � especially when the power a speaker has is supported by government backed monopolies. Sinclair has the power it has as a broadcaster because the government has given it an exclusive right to something the techno-ignorant call “spectrum.” These absurd (and constitutionally unjustified) grants of power to control who gets to speak, of course, continue, as the New Yorker’s James Surowiecki brilliantly describes this week. They have always been understood to raise unique questions under the First Amendment.
So I’m sympathetic to those who would qualify the First Amendment analysis that applies to newspapers when applied to broadcasters, though I am less eager than some of my friends to see the FCC decide what speech gets to go on television before a Presidential election.
So much is familiar.
But less familiar is a second sort of “regulation” that Sinclair will not escape. That is the “regulation” of the market, buttressed by the law suits that will certainly be filed by Sinclair shareholders.
In the last week, the stock price of the Sinclair Group has fallen by 10%. The company has lost $60,000,000 in market cap. Josh Marshall has a great clip from a Lehman Brothers research memo attacking the decision from a business perspective.
This drop is no doubt in part a calculation about how Sinclair will fair if the election goes for Kerry. But in part it may also be the product of a large citizen reaction to this corporate partisanship. Among the groups creating pressure on the company are:
Boycottsbg.com
SinclairWatch.org
MediaMatters.org
The First Amendment does not mean people have to like you for what you say. Nor does it protect you if people decide not to buy your product because of what you say, or advertise on your network, because of what you say. All it means is that the government can’t punish you for what you say (or at least, that’s at least what it should mean, “indecency” notwithstanding).
But “free speech” is more than what the First Amendment says. And I wouldn’t be honest if I didn’t confess a bit of anxiety at all this “punishing” for what people — including corporations — say. The most that can be said in its defense is, I should think, this: In a world where “mainstream” broadcasters such as CBS are too timid to broadcast a plainly relevant story about war “too close” to an election, or where NBC refuses to license clips from “Meet the Press” because it wants to stay “neutral” in a political debate, the action by a concentrated, powerful, rightwing network to use its power to direct the election is bad. If we could break up the government supported monopolies of broadcasters, and change the culture among broadcasters generally, I’d have no problem with it. But now, in this culture, in an election this close, the decision stinks. And I for one won’t shed any tears for the “punishment” Sinclair receives from the market, or even the plaintiffs’ bar. Continue reading →

We’ve collected many great stories about the burden of copyright relevant to our case, Kahle v. Ashcroft. You can see them here. Please add more. Continue reading →

I’ve been getting lots of emails regarding this potential suit against Disney for its use of the character Peter Pan. But Disney is right — as we’ve been litigating in a related case, Somma v. GOSH, for the past year.
That case is about to get interesting. More soon. Continue reading →