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View Diary: FCC Chair promises to kill Fairness Doctrine. WTF??? (202 comments)

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  •  There are constraints on free speech (1+ / 0-)
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    and as far as I'm concerned, blatantly lying to the public and inciting violence with such lies is equivalent to yelling "fire" in a crowded theater.

    I'll be first in line to fight for free speech - equal free speech.

    And today, it ain't equal.

    Government of the people, by the people, for the people, shall not perish from the earth - Abraham Lincoln

    by Gustogirl on Thu Jun 09, 2011 at 10:50:35 AM PDT

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    •  No again. (4+ / 0-)
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      pico, Rashaverak, bugscuffle, nextstep

      That "falsely yelling fire in a crowded theater" notion comes from Schenck v. United States,  which is no longer an accurate statement of the law.  

      The test for when speech loses its First Amendment protection is in Brandenburg v. Ohio, where the SCOTUS said that speech is protected unless it is directed to incite imminent lawless action -- imminent as in, right at this second and right at this place, as in "take this gun here in my hand and shoot that cop over there" -- and is likely to cause that imminent lawless action.  Under that test, everything Limbaugh and others say on the air is clearly, clearly protected by the First Amendment. (It's important to keep in mind that the Brandenburg type precedents were, at the time, considered important milestones to protect the speech of Vietnam War protesters.)  

      While the First Amendment guarantees that government will not interfere in your exercise of free speech, it most assuredly DOES NOT guarantee that speech is ever going to be "equal."  There is no constitutional right -- none, zero, zilch -- to "equal" free speech. The constitutional right is that the government won't stop speech, not that it will do anything to make sure that speech is "equal."  It would be patently and obviously unconstitutional for the government, for example, to do anything to limit the free speech rights of the Koch brothers on the notion that others need "equal free speech."  There is no such notion as "equal free speech."  If speech is not "equal," it is up to the people -- not the government -- to remedy that.  "Equal" is a value judgment about the content of speech -- who needs to have it, what views should be equal to what other views, what views are "fringe" views (for example, does the KKK get "equal free speech"?) and the government is absolutely prohibited from making value judgments about the content of speech, especially political speech.  

      Again, if you don't like the majority of the political speech out there, the only constitutional remedy is more speech to compete with it.  And it's up to the people -- not the government -- to provide that speech. Government cannot subsidize or promote one view or another in an attempt to make speech "equal."  

      •  The government IS the people. (2+ / 0-)
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        Betty Pinson, neroden

        At least, that used to be the idea.

        We, the individual people, do not have the means to "compete" with high dollar messaging.  It is the government, acting as the agent for the people, that has the means to protect.

        I was just checking out your comment history and noted an inconsistency:  you defend Fox's right to lie yet are appalled when the diapered Vitter is mentioned, because it's a lie!

        This really isn't your kind of blog, is it?

        I won't be responding further except to demonstrate to others your history here.

        Government of the people, by the people, for the people, shall not perish from the earth - Abraham Lincoln

        by Gustogirl on Thu Jun 09, 2011 at 11:33:27 AM PDT

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        •  No, I'm a lawyer. And I'm pointing out (3+ / 0-)
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          pico, Rashaverak, bugscuffle

          First Amendment law, with links.   If you think I'm wrong about the Constitution and the First Amendment, I'd be happy to hear your thoughts.  

          The government may have the "means" to have the speech of individuals "compete" with the speech of, say, the Kochs or Michael Moore.  The government has the "means" to fund individual speech so as to achieve some notion of "equal" speech.  It's just that the First Amendment prohibits it.   The government has the "means" to do a lot of things that are prohibited by the First Amendment, like support smaller, less popular churches so that there will be "equal" religious freedom for those who want to exercise those religious beliefs.  It's just that the First Amendment prohibits it.  

          For First Amendment purposes, the Constitution does not consider the government to be the people.  It says "Congress shall make no law . . .  abridging the freedom of speech."  That's a limit on Congress.  The First Amendment is not a right granted to the people -- it's written as a limit on the power of the government.  

          And you have misinterpreted my comment history, of course, but I don't have any intention of arguing with you about that.  Misconstruing my posting history is a statement saying "I don't have any answer to your argument here, so I'll try to taint you personally."  I understand.  

        •  That's a really sad comment. (1+ / 0-)
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          coffeetalk is correct on the history and correct on the principles: if anything's been demonstrated, it's that you're not arguing this point in good faith.  

          The central question here is whether there is or should be a set of guidelines for anyone holding a broadcast license, and the parameters of justification established by the original Fairness Doctrine no longer exist.   So, as kalmoth is asking above, are there a new set of parameters to justify a new version of the FD?  Personally I don't think there are, because whatever justification you use has to be narrow enough to survive a constitutional challenge, and where that narrowness may have existed in the 1940s because of the level and accessibility of the time's technology, it certainly doesn't exist now.  Not liking the stuff you see on television isn't justification enough: the courts will decide, correctly, that you have more than enough alternatives for getting your news and viewpoints.

          Do I agree fully with that you have a plethora of alternatives?  No, but that's an issue of media consolidation, which is an entirely different issue: break up the monopolies, and the landscape will change considerably.  But you won't solve that problem with a weak-tea FD, like putting a band-aid on a gaping wound.

          Saint, n. A dead sinner revised and edited. - Ambrose Bierce

          by pico on Thu Jun 09, 2011 at 11:52:13 AM PDT

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          •  Still wrong. Original parameters still exist. (1+ / 0-)
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            In the radio market, which is the ONLY market when outdoors in a rural area, the conditions have not changed, and the original justifications (limited airwaves) for the Fairness Doctrine still exist.

            I don't really give a damn about the "Fairness Doctrine" in other media, but in radio, with limited airwaves, we need it back.

            Read pp. 1-7 of Krugman's _The Great Unraveling_ (available from Google Books). NOW.

            by neroden on Thu Jun 09, 2011 at 02:03:15 PM PDT

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            •  Wrong: (0+ / 0-)

              The original parameters were based on FCC requirements that anyone who held broadcast licenses had to devote a certain portion of the day to news and public interest information.  If the FCC maintained that requirement, much less their belief in radio as the primary vessel of news communication to the public, then it would have justification for setting parameters on that requirement.  But it doesn't - nor would it, so it doesn't.*  

              Already in the early 80s the judges were questioning whether the access justification was still relevant: see FCC v. League of Women Voters of California.  Why do you think that would stand a court challenge thirty years later?

              Attacking media consolidation would accomplish pretty much everything you wanted, except in a constitutionally defensible way.

              * for what it's worth, kalmoth isn't arguing a return to the original version, but I challenge anyone to suggest a version that wouldn't run afoul of a First Amendment challenge based on the majority comments in the case I cited.

              Saint, n. A dead sinner revised and edited. - Ambrose Bierce

              by pico on Thu Jun 09, 2011 at 03:22:53 PM PDT

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        •  You're exactly right (2+ / 0-)
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          neroden, Gustogirl

          Freedom of speech doesn't just belong to only those who can afford it.

          I suspect those arguing otherwise also know better.

          It is the mark of an educated mind to be able to entertain a thought without accepting it. ~ Aristotle

          by Betty Pinson on Thu Jun 09, 2011 at 12:57:49 PM PDT

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