First Amendment Victory and Freedom of the Press

Left wing squawker Sue Wilson has attempted to shut down Right Wing talk radio for the better part of two years. Sue founded Media Action Center a left wing attack group.  I remember the day that she responded to me with

WI Broadcasters Assn knows the rules, don’t you?

To which I responded

You have to read the whole thing. Again equal access only applies to the  candidates themselves, if say WMIN has Scott Walker on then Tom Barret has 7 days to ask for equal time. PERIOD! The time the talking heads spend talking about the candidates means nothing. See pages 2-5 of your own document.

She made several false arguments.  First is that the government owns the airwaves.  The FCC is a regulatory body and they don’t even make such a claim.  However the bulk of her claim was based on the Zapple Doctrine which was an offshoot of the unconstitutional Fairness Doctrine. A court case she repeatedly cited was Red Lion Broadcasting v. FCCRed Lion’s radio station, WGCB, aired a program that attacked an author and journalist, Fred J. Cook. Cook requested “equal time” but was refused; the FCC supported his claim because the agency viewed the WGCB program as a personal attack.

The Red Lion case had its origins when author Fred J. Cook criticized U.S. presidential candidate Barry Goldwater in his book, Barry Goldwater: Extremist on the Right (1964). A radio station operated by Red Lion Broadcasting Company in Red Lion, Pennsylvania, ran a 15-minute broadcast by the Reverend Billy James Hargis criticizing Cook. Hargis claimed that Cook had been fired from the New York World-Telegram newspaper for false charges against a New York city official and that Cook, writing for The Nation (which Hargis characterized as having “championed many communist causes”), had attacked Federal Bureau of Investigation directorJ. Edgar Hoover and the Central Intelligence Agency.

When Cook heard of the broadcast, he demanded free reply time to address the attack. The broadcast station refused to allow Cook to reply to the allegations. On appeal, the FCC declared that the station should give Cook an opportunity to reply to allegations against him.

The FCC won the appeal based in part on the claim that broadcast stations were scarce. But she conveniently left out a key part of the ruling.  And if experience with the administration of these doctrines indicates that they have the net effect of reducing rather than enhancing the volume and quality of coverage, there will be time enough to reconsider the constitutional implications. The fairness doctrine in the past has had no such overall effect.”

In fact it was the leftist group California League of Women Voters and Democratic Congressman Henry Waxman who sued the FCC to put biased editorial content not on for profit radio but on taxpayer funded “Public Radio”  The finding of the court included the following.

Although it was argued that such a requirement would serve the public’s First Amendment interest in receiving additional views on public issues, the Court rejected this approach, finding that such a requirement would tend to transform broadcasters into common carriers and would intrude unnecessarily upon the editorial discretion of broadcasters. Id., at 123-125. The FCC’s ruling, therefore, helped to advance the important purposes of the Communications Act, grounded in the First Amendment, of preserving the right of broadcasters to exercise “the widest journalistic freedom consistent with [their] public obligations,” and of guarding against “the risk of an enlargement [468 U.S. 364, 380]   of Government control over the content of broadcast discussion of public issues.

The oral arguments for the FCC’s case were argued by now Supreme Court justice Samuel Alito and was celebrated by the leftist site “Democracy Now” in their piece FCC vs. The League of Women Voters: A Look at the Case That Pitted Samuel Alito Against Pacifica Radio, where they celebrated their victory in putting leftist editorials on taxpayer funded radio. This ruling caused the FCC to reevaluate the “Fairness Doctrine”

In 1984, the FCC began a comprehensive reexamination of the public policy and constitutional implications of the fairness doctrine. . . Commission concluded that the doctrine no longer serves the public interest in access to diverse sources of information. In re Inquiry into Section 73.1910 of the Commission’s Rules and Regulations Concerning the General Fairness Doctrine Obligations of Broadcast Licensees, 102 F.C.C.2d 143, 147 (1985) (hereinafter 1985 Fairness Report) (Pet. App. 77a, 81a). The Commission also questioned whether the doctrine remained consistent with the First Amendment as it had been applied in Red Lion. Id. at 82a-93a.

Of course the leftist groups were no satisfied with the fact that they helped kill a regulation that they used to stifle free speech so they went to the courts yet again in order to force enforcement of the “Fairness doctrine” The SYRACUSE PEACE COUNCIL (an anti-nuclear power activist group) demanded equal time to the editorials that favored a nuclear power plant.  Initially the FCC found in favor of the activist and the station WTVH petitioned for reconsideration. The station then appealed it  to the US Circuit Court of Appeals. Circuit Judge Silberman ordered the commission to reconsider the case because the commission had failed to address WTVH-Meredith Corporation’s claim that the fairness doctrine was unconstitutional.

The court said that the FCC had been “arbitrary and capricious”1 for insisting that WTVH-Meredith Corporation obey a policy that the Commission believed was a First Amendment violation.  The court stated that the FCC would have to address their complaint and/or prove that the doctrine was no longer serving the public interest. The FCC on reconsideration found that the “Fairness Doctrine no longer served the public interest and did violate the First Amendment.  The court concurred.

What this does show is that the left only wants free speech when it suits their agenda and is willing to use both the courts and regulatory agencies to stifle speech they don’t approve of and use them both to push speech that they do.  Sue Wilson’s case is no different.  But ultimately the FCC agreed with every one of my arguments and not Sue Wilson’s.  The following is the FCC’s response to Sue

apstar TX LLC (“Capstar”) for renewal of
its license for WISN(AM), Milwaukee, Wisconsin (“Station”). We also have before us a Petition to Deny
(“Petition”) filed by Media Action Center (“MAC”).
In addition, we have before us a political programming complaint (“Complaint”) filed by Sue Wilson on behalf of several individuals ( “Wilson”). MAC alleges in its Petition and Wilson alleges in the Complaint that Capstar refused to provide air time
on the Station to supporters of Tom Barrett, the Democratic candidate for Governor of Wisconsin, so that
they could respond to statements aired on the Station in support of Scott Walker, the Republican
candidate for that office. MAC and Wilson argue that this refusal violated both the Zapple Doctrine and
the First Amendment. MAC also asserts that Capstar lacks the character qualifications necessary to be a Commission licensee.
4 For the reasons discussed below, we deny the Petition and the Complaint and grant the Application. . . .  While MAC purports to make Zapple Doctrine (and First Amendment) claims, we find that its real complaints relate to the Station’s programming choices. It is well established, however, that the Commission cannot exercise any power of censorship over broadcast stations with respect to content based programming decisions.A licensee has broad discretion – based on its right to free speech – to choose the programming that it believes serves the needs and interests of the members of its audience.  In any event, we note that we have no basis to enforce the Zapple Doctrine. The doctrine was  based on an interpretation of the fairness doctrine, which the Commission abrogated in Syracuse Peace Council in 1987 after concluding that it no longer served the public interest, was not statutorily mandated, and was inconsistent with First Amendment values. In 1989, the D.C. Circuit affirmed the Commission’s conclusion that the fairness doctrine no longer served the public interest, without reaching the constitutional question. In August 2011, the Media Bureau and Office of Managing Director characterized the fairness doctrine as “defunct” and deleted rules referencing the fairness doctrine as “obsolete” after finding them to be “without current legal effect.” Given the fact that the Zapple Doctrine was based on an interpretation of the fairness doctrine, which has no current legal effect, we conclude that the Zapple Doctrine similarly has no current legal effect.

Based on the FCC’s response I would say that the answer to the first question that you posed would be a resounding yes. And your attack on me and my fellow broadcasters is unfounded.

Given their response — and the disinformed Rightwing knee-jerkery it has now inspired across the web, from the likes of Brian Sikma at Media Trackers (“Liberals Pressure Obama Admin to Muzzle Wisconsin Talk Radio”) and Marshall Keith at People’s Republic of Madison (“The Queen of Censorship is Back”!) — it’s no surprise that these folks would have no clue about what “bonafide news” actually is.



About Marshall Keith

Broadcast Engineer Scuba Diver Photographer Fisherman Hunter Libertarian
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