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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long been conditioned on a requirement that broadcasters act in the "public interest", and the federal government's now-repealed "fairness doctrine" required broadcasters to air "both sides" of major issues.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