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UP FROM SINCLAIR:
In case you haven't heard, Sinclair Broadcasting Group, which owns numerous stations in swing states and which has extensive government contracts, intends to pre-empt local programming and air an anti-Kerry documentary by an organization affiliated with the Swift Boat Veterans for Truth. This is obviously an end run around campaign finance restrictions and a huge campaign contribution to the Bush campaign. (It might also be a Karl Rove dirty trick.)

Liberal groups are taking a page out of conservatives' playbook and trying to get sponsors to pressure Sinclair not to air the program. (Click here and scroll down for more details.) I feel no differently about this campaign than I do about any campaign by private interests to take something off the air-- on the one hand, the opponents of the program have every right to protest it. On the other hand, I am not completely comfortable with the fact that when such campaigns succeed, those members of the public who would be interested in seeing the program are deprived of that right.

But what's really bad is that this has provided the occasion for the resurrection of all the "public interest" arguments about broadcasting. (See also here and here.) In short, people contend that the airwaves are "public", and therefore, all broadcasters have the obligation to do whatever the public (read, government) tells them to do, on pain of losing their broadcast licenses. Of course, this view has some support in the law. Broadcast licenses have long been conditioned on a requirement that broadcasters act in the "public interest", and the federal government's now-repealed "fairness doctrine" required broadcasters to air "both sides" of major issues. The "fairness doctrine" was upheld by the Supreme Court in a case called FCC v. Red Lion Broadcasting.

The danger with these arguments is obvious. The argument that broadcasters can lose their licenses if their actions are deemed against the "public interest" is essentially a justification for massive government censorship. Indeed, given the Bush Administration's predilections, one would expect that liberals would be a lot more worried than they are about granting the government this sort of power. I could very easily see Karl Rove and company pressuring broadcasters to air smears against their political opponents. Instead, liberal websites are parroting the arguments that conservative anti-obscenity crusaders always make, about how the airwaves belong to the public and the public has the right to prevent anything they don't like from airing on television or radio.

Also, it should be noted that the "public interest" requirement probably doesn't stretch as far as these advocates would like to stretch it. The Red Lion case was based on the fairness doctrine, not the "public interest" requirement. No case has ever interpreted the "public interest" requirement as granting the government the power to pull licenses or punish stations based on the stations' partisan political expression. The "public interest" condition has been invoked in the past not in political speech cases but in connection with things such as the requirement that stations carry the Emergency Broadcast System or a certain amount of educational programming. Even there, there are free speech concerns, but at least there is no danger that the government is attempting to suppress political speech.

Here, the argument that Sinclair must serve the "public interest" is essentially a brief for the censors, a justification for the government to pull the license of a station that takes a position that some do not agree with. And if you think my fears are hyperbolic, check out this quote from a Kerry advisor: "They better hope we don't win."

Media consolidation, biased news coverage, the lack of editorial independence, and attempts to circumvent campaign finance reform are all legitimate issues that should be discussed. But let's keep the government out of the business of deciding whether political expression is in the "public interest". The dangers here are far too great.

posted by Dilan at 5:28 PM

 
KERRY WON:
I don't usually have much of an opinion about which candidate won a presidential debate. I probably should-- I was a successful debater in college-- but I don't. The only exceptions I can think of are that Clinton killed Dole a couple of times in 1996, and Bentsen destroyed Quayle in 1988 in the vice-presidential debate. In 2000, I suppose Bush beat Gore-- he had a good response to Gore on hate crimes and Gore did sigh too much-- but that conclusion is more tentative.

Well this one isn't. Kerry won easily on Thursday night. Two signature moments where Kerry "turned" Bush's attacks to his advantage. (1) When Bush brought up Kerry's awful statement about voting for the $87 billion before voting against it, Kerry replied that yes, he made a mistake in talking about that vote, but Bush made a mistake in invading Iraq. Which is worse? (2) Bush repeated over and over again the obviously focus-grouped phrase "mixed messages", as a shorthand way of describing Kerry's flip-flopping. Kerry turned it around in an unlikely way-- by bringing up the nuclear bunker buster program, something most voters have probably never heard of. Turns out Bush is developing a whole new type of nuclear weapon, with the intention of using it, while telling the rest of the world that they can't have nukes. Talk about a "mixed message".

What does this mean for the campaign? Hell if I know. Debates are notoriously overrated. The Bush-Gore polls were tied before Gore's sighs, tied after Gore's sighs, and essentially tied on election day. Clinton was already killing Dole in 1996. Bentsen's win over Quayle didn't move the polls for Dukakis one bit. Reagan, despite the legend, was beating Carter in 1980 with or without that debate. Kennedy and Nixon were tied in the polls before the supposed 5 o'clock shadow, and tied after that first debate (as well as the other three debates that nobody ever talks about and where Nixon was properly shaven).

That said, one could at least hypothesize why this might be different. After all, the polls were tied until Kerry was attacked by the Swift Boat vets. Bush took a narrow lead and has held it since. To the extent that the Swift Boat attacks swung some voters to Bush based on character doubts about Kerry, perhaps Kerry's strong performance might swing them back. Such voters are not likely to be strong supporters of the Iraq war; otherwise they would have never been for Kerry in the pre-Swift Boat polls.

But let's wait and see. I've seen too many of these campaigns where debates don't matter to think that they suddenly do. I'd still make Bush a slight favorite right now. But if I were a Bush supporter, I'd sure be worried. And since the next two debates are not limited to foreign policy like this one was, it's all downhill from here. (Conservatives will defend Bush to the death on Iraq, but not on the deficit or the prescription drug bill.)

posted by Dilan at 1:39 AM