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View Diary: Fox News wins in court (429 comments)

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  •  I don't believe this is correct (0+ / 0-)

    where William Mayton correctly explains that Congress does not have the authority to regulate the content of our speech ("Congress shall make no law. . ." means that Congress SHALL NOT make a law. Period).

    It's important to look at the full text and how it's been traditionally been interpreted.  The amendment actually says: "Congress shall make no law ... abridging the freedom of speech, or of the press."

    Congress actually can make laws regarding the method or even the content of speech, and it has done so on many occasions.  Such laws just have to meet certain tests to show that they do not abridge freedom.  Restrictions on method must meet reasonability tests, restrictions on content have to meet high standards of public interest and narrow tailoring.  

    Basically, Congress can punish abusive uses of freedom, provided that not one atom of baby is thrown out in a gallon of bathwater.  Deliberate lies are protected only because we can't protect the truth in all its facets without protecting lies. However, among all the factors that expose a person to consequences of his use of speech, deliberate falsehood is among the weightiest.  You can say anything you like about somebody, but when it is a lie it becomes defamation.   You can argue any way you want when negotiating a contract, but when you lie it becomes fraud.  If Fox lied in a way that damaged a private company, they could be sued.  By lying in a way that damages the public, they avoid being sued only because so many people are harmed it is beyond calculation. So in general, the consequences of lying in journalism are restricted to loss of credibility.

    But broadcast is a special case.

    It seems to me that use of the public airwaves is a privilege, in that only a favored few are allowed to use them. We deliberately restrict the public right use of the spectrum to enable private parties to monopolize it. The reason we restrict the general right to use the spectrum is so that broadcasters can provide a service to the public. On balance the cost to the public in public freedom is outweighed by the benefit of having broadcasters.

    The logic of the restriction of the public's rights in the broadcast spectrum is lost if it is permissible to deliberately use your government monopoly to harm the public.

    Losing the privilege of monopolizing a piece of spectrum is not a loss of a right, because a monopoly by its very nature is a restraint upon the rights of others, undertaken for the public good.  If anybody who wanted to could put up a transmitter on any frequency he wanted, then an exception to the general allowance would be a restriction on freedom of speech.  The same reasoning would apply to using a cell phone; anybody with a phone can use the spectrum, so restrictions on cell phone content are restrictions of freedom.

    So, as far as broadcast is concerned, it is reasonable to regulate it according to the public interest in informed discourse from a variety of viewpoints.  Since there is no general public right to use the spectrum freely, we accept a number of highly questionable restrictions on content, including restrictions on obscenity.  A narrow restriction on deliberate lying, enforced after the fact after carrying a reasonable burden of proof, cannot in any way be considered a restriction on freedom of speech, and is certainly compatible with promoting the public interest in free and fair discourse.

    Prior restraint is a different story altogether.

    I've lost my faith in nihilism

    by grumpynerd on Tue Jul 31, 2007 at 08:34:04 AM PDT

    [ Parent ]

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