August 4, 2012
Twenty-five years ago today, the Federal Communications Commission (FCC) adopted an order effectively repealing the infamous broadcast “Fairness Doctrine.” The Doctrine required that broadcast licensees had to present reasonable opportunity for the airing of contesting points of view when covering issues of public importance to their community. For nearly 40 years, it was upheld in the name of protecting the ‘public interest.’
Lost in this more positive-right view of freedom of speech often espoused by proponents of the Doctrine was the harm it had on the more negative-right view of freedom of speech. But over time the negative-right view won out. It became viewed as a restriction on free speech, creating a “chilling effect” which led broadcasters to avoid covering any controversial public issues due to the requirement to ensure all sides of the issue were covered.
To commemorate the repeal, Reason.tv has posted the following interview with Thomas Hazlett, a professor of law and economics at George Mason University, discussing the history and various issues with the Doctrine:
In addition, I actually wrote my master’s thesis on the subject, relating it to the two conceptions of liberty: positive and negative, as postulated by Isaiah Berlin. In addition to the “chilling effect” argument, I also argued in the thesis that the positive-right conception exemplified in the Doctrine lends itself to an uncomfortable level of paternalism on the part of government regulators and a constitutional abridgement of negative-right speech. For those with probably too much time on their hands, all 184 pages can be read here.
October 17, 2010
The latest tactic progressives are attempting is to scare voters into thinking that behind every conservative, Tea Party or Republican candidate or group are secret, foreign corporations and individuals propping them up with funding. The implication is that these ‘special’ interests represent a threat to our system of democracy.
[picapp align=”left” wrap=”true” link=”term=obama+mtv&iid=9952373″ src=”http://view.picapp.com/pictures.photo/image/9952373/obama-participates-mtv-bet/obama-participates-mtv-bet.jpg?size=500&imageId=9952373″ width=”234″ height=”136″ /]Part of the issue stems from a recent Supreme Court decision, Citizens United v. FEC, in which the majority of the justices ruled that corporations have free speech rights in respect to their ability to fund political opinion. Many Democrats and progressives, including Obama, have at many times railed against the decision.
One group under attack is the U.S. Chamber of Commerce. Recently, there has been an effort to insinuate that the Chamber is backed by foreign special interests, despite little evidence to prove it. The Chamber’s head of government affairs has even asserted that the push to disclose donor information may be an attempt by the Obama administration to intimidate those who fund the organization. Other conservative-leaning groups, like Americans for Prosperity, have also come under fire from Obama and other Democrats desperately hoping to find a way to minimize the severity of their predicted election losses next month.
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September 19, 2010
Before the ink could even dry on our Constitution back in the late 1700s, attempts were already made at distorting its meaning or flat-out ignoring it. A prime example was the passage and enforcement of the Alien and Sedition Acts, part of which enabled the federal government to criminalize criticism against government officials. It flatly went in the face of the Bill of Rights, yet many of the same people who had a part in passing the First Amendment also supported the Sedition Act. Perhaps the clear words of the First Amendment sounded good to them at the time, that is until they themselves came to power in government. Then those words became a stumbling block to their agendas.
[picapp align=”left” wrap=”true” link=”term=stephen+breyer&iid=6650877″ src=”http://view.picapp.com/pictures.photo/image/6650877/supreme-court-justices/supreme-court-justices.jpg?size=500&imageId=6650877″ width=”156″ height=”201″ /]The plain words of the Constitution have always been misinterpreted, stretched inappropriately or outright ignored over the years by government officials. With this background in mind, it maybe should come as no surprise that Supreme Court Justice Stephen Breyer recently told ABC News that the right of individuals in this country to burn Korans, which has been taken as a given by most in the recent media coverage of the cancelled plan to do so by a Florida pastor, is still something the courts may end up ruling on in the future.
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September 16, 2010
As tomorrow is the official “Constitution Day,” try to take the time to actually read the document here. Also, the National Constitution Center is another resource for all things Constitution.
On a related note, there is this recent news item on Supreme Court Justice Stephen Breyer casting doubt on the extent to which the First Amendment protects the ability of people like the pastor in Florida to burn books. I may be blogging separately on that absurdity soon.
July 22, 2010
In light of this week’s earlier news that the Senate Judiciary Committee has voted to send the Elena Kagan Supreme Court nomination to the full Senate for a vote, here’s an interesting clip displaying Kagan’s previous defense before the Court of the idea that it is OK for the government to have a law allowing the ban of a political book since it has never, in the past, actually used that law to ban a book:
July 5, 2010
The previous post, posted here and on the YAL blog, generated an interesting discussion over California’s approach to balancing free-speech and property rights. One notable point made in the comments thread involved the case of Pruneyard Shopping Center v. Robins (1980).
In that case, the U.S. Supreme Court ruled that states could extend rights beyond that of the U.S. Constitution so long as doing so does not violate rights protected by the Constitution. The case dealt with the California Supreme Court ruling that their constitution’s protection of free speech allowed for individuals to exercise their free-speech rights in a private shopping mall, despite the wishes of the mall owners. The U.S. Supreme Court agreed with the California Supreme Court that this did not violate the mall owner’s property rights under the fifth and fourteenth amendments.
Legally, such a situation is allowed under the current precedent. In California, individual speech rights apparently can trump property rights in certain cases, with some exceptions (example). It’s in a way similar to the “public accommodation” approach in U.S. law that forbids businesses from not serving customers based on race. It transforms private property into something more — a public space.
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July 3, 2010
A story from OneNewsNow recently reported that the Pacific Justice Institute is suing a California shopping mall for what it believes to be a violation of constitutional freedoms. The alledged violation is that a mall policy bans the following:
… anyone [from] ever sharing their faith or political views with anyone else in the shopping mall at any time if they did not know that person prior to entering the shopping mall.
The story also reported that the mall had rules banning individuals from “wearing any clothing that displays religious or political messages.”
The problem with this argument is that the First Amendment, coupled with the Fourteenth Amendment applying much of the Bill of Rights to the states, prohibits the federal and state governments from abridging political speech or prohibiting religious freedom. It says nothing of private individuals or mall owners who have their own ground rules for individuals wishing to enter their property.
Americans have every right to express their political or religious views, but we don’t have a right to demand others allow us on their property to do so. This principle also applies to other freedoms.
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March 9, 2010
A recent report noted that services had been stopped for a Dallas church that was holding its meetings in a public housing unit. The local housing authority president had claimed that the services violated the separation of church and state.
A federal spokesman (with HUD) attempted to clarify the move:
He said the Fair Housing Act allows religious activity in common areas of public housing as long as it does not result in unequal treatment of residents.
A new story reports that services have since been allowed to resume. The law only restricts religious activity when it results in treating residents unequally. The local housing authority president has apologized.
Lost in all of this, however, are two points. First, what ever happened to the First-Amendment wording: “shall make no law” in terms of “prohibiting the free exercise” of religion or “abridging the freedom of speech”? And second, where is the federal government constitutionally authorized to subsidize housing (see the Tenth Amendment if in doubt)?
The controversy over “public housing” being host to religious services wouldn’t be a federal problem if government was limited to its constitutional scope. A lot of the legal conundrums we find ourselves in lately stem back to government being involved in too many activities not authorized by the Constitution.
November 2, 2009
This latest article concerning the FCC’s media-ownership rules further highlights the problems with government appointees deciding what is in the public’s interest.
Early in the 1900’s, the federal government decided it was wise to regulate the broadcast spectrum in the name of “the public interest, convenience, or necessity.” It did so by heaping several regulations on broadcasters — ranging from the misnamed “fairness doctrine” to children’s programming requirements to guidelines concerning “diversity” and “localism.”
The questionable justification for this regulation has been the scarcity of broadcast frequencies. Because the number of broadcast frequencies is scarce, it was argued that they must be allocated and regulated with the “public interest” in mind — preventing the medium from being dominated by the personal interests of the private broadcast station owners (and many argue that this “chills” the free speech rights of broadcasters).
The aforementioned article includes the views of Michael Copps, one FCC commissioner, on the state of broadcasting and its public interest role. His views are exemplified in the following passage: Read the rest of this entry »
September 1, 2009
One recent development on the free-speech front that has concerned me is the hiring of the Federal Communications Commission’s (FCC) new chief diversity officer, Mark Lloyd.
Lloyd used to work for the left-leaning Center for American Progress, where he helped write this study calling for caps on commercial radio station ownership, greater local accountability on the part of broadcasters and fees to be paid by broadcasters who don’t want to abide by certain “public interest” standards (the fees would go to fund public broadcasting). The focus of the study was on the imbalance between conservative and liberal programming, and critics charge that the proposed actions are meant to silence conservative talk radio.
Another point of controversy is one of his other proposals suggesting that radio stations not interested in abiding by public interest standards pay a licensing fee equal to their total operating costs. A discussion of this and other proposals was aired on Glenn Beck’s program on Fox News last week. Part of that discussion covered comments Lloyd made which seemed to praise Venezuelan President Hugo Chavez’ treatment of the media in his country (which has been less than friendly to their free-speech rights). Here is a clip:
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