Use of the phrase “Media Malpractice” is catchy, but really not meaningful. Currently we suffer from a concerted and one-voiced mainstream media, and were it not for the renegade voices on Internet, radio and occasionally Fox, who dare counter the prevailing current, we would be experiencing a controlled message somewhat similar to that when government actually owns the media (e.g. Cuba, former communist Eastern European countries, the Soviet Union, etc.).

Members of the U.S. media are free to propagate whatever messages and stories they each desire; each may even report the same news stories as the other.  This is the beauty of a largely free press.  Hand in hand with this freedom is the public’s freedom to tune them out, not purchase their stock and not patronize their advertisers.  Ultimately, “Media Malpractice” (whatever it is) should be  self-correcting by our refusal to listen, watch, soak up and march in lock-step to, the message. However, if we, as a viewing, reading and listening public, do not respond to the media negatively and instead lap up the lies simply taking in what we’re fed, then we will continue to receive more of the same “Media Malpractice.”

It seems that Mr. Obama thinks we have too much information and that our free and increased access to information is putting a “strain” on democracy. Fundamentally, this is troublesome, and while much could be said on this topic, because there is no argument to win with Mr. Obama himself, not much more needs to be said.  His views speak clearly for him.

It is agreeable that the nonsense often reported on cable and broadcast networks is, at best, insulting.  However, those media are collapsing from the weight of the manure they carry and spread.  Time, and the evolution of gatekeepers, will solve this problem – meaning, poor ratings and advertising revenues will force change.

Meanwhile, review this article and please think about what it means for our President to lament our free access to abundant information.

Do you remember, in the months shortly after Obama was elected, when there was noise about reinstitution of the Fairness Doctrine (or institution of some type of regulation to “level the playing field” with regard to talk radio)?  Without going into specifics, politicians such as Dick Durbin (Sen), Nancy Pelosi (H. Rep), Debbie Stabenow (Sen), Anna Eshoo (H.Rep) and others, spoke out in favor of reimposition of the Fairness Doctrine and some even floated legislative trial balloons or regulatory proposals to advance the idea.  But suddenly, Obama, with the waive of the presidential magic wand, called off the idea shutting down the discussion.

Some say Obama shut down discussion of the Fairness Doctrine because it was a distraction from his agenda – this might be true. However, I am concerned that he shut it down because he knew its imposition would be disadvantageous for his agenda, because it would arguably impose an obligation on his fawning television media friends to report (or allow equal time for reporting of) all sides of the health care reform debate and other items upcoming on his agenda. After all, what good is “fairness” at a time like this?

I speculate that Obama understands that Limbaugh, Hannity, Levin and other radio talkers, while a nuisance to him, are speaking to the same audience day in and day out (a/k/a “preaching to the choir”), and so, they probably represent less of a threat to Obama or his agenda than some would like to believe. With the loudest voices of opposition largely speaking only to those who already oppose (and who would oppose anyway), why impose upon the more friendly broadcast media an obligation to break from their adoration and support?

One has to wonder, if there were a true Fairness Doctrine which required the broadcast television networks to fairly report on matters of public controversy and importance, whether the health care vote would have had the same result.  Regardless of the answer (which we will never know), it is disheartening that one must contemplate the imposition of the (easily) arguably unconstitutional Fairness Doctrine in order to imagine a different result on health care reform. Had the broadcast television media shone a truly fair light on the pros and cons of health care reform (as contained in the Senate bill), and had the broadcast television media more highly scrutinized the crooked process and Obama’s lies about transparency, there might have been more pressure on the House of Representatives not to vote in favor.

My theory and my speculation above cannot be proven (or disproven), but it should give rise to thought about the lack of integrity of the broadcast television media and how its overwhelming one-sidedness affects the outcome of critical landscape-altering legislation.  If conservative talk radio is “preaching to the choir” and overwhelmingly liberal newspaper is not capable of content regulation (because it is not electronic media regulated by the F.C.C.), then broadcast television becomes a sort of “swing vote.” Americans deserve better than this.

It seems they’re in dire straits.  If you read my rant below on gov’t media subsidy, then this is the natural result of the marketplace of ideas I am preaching, and the marketplace should not be tampered with by Uncle Sam.

Majority Opinion, J. Anthony Kennedy:

1. “The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day.”
2. “We decline to adopt an interpretation that requires intricate case-by-case determinations to verify whether political speech is banned, especially if we are convinced that, in the end, this corporation has a constitutional right to speak on this subject.”
3. “… the Court cannot resolve this case on a narrower ground without chilling political speech, speech that is central to the meaning and purpose of the First Amendment. … It is not judicial restraint to accept an unsound, narrow argument just so the Court can avoid another argument with broader implications.”
4. “… given the complexity of the regulations and the deference courts show to administrative determinations, a speaker who wants to avoid threats of criminal liability and the heavy costs of defending against FEC [Federal Election Commission] enforcement must ask a governmental agency for prior permission to speak.  … These onerous restrictions thus function as the equivalent of prior restraint by giving the FEC power analogous to licensing laws implemented in 16th- and 17th-century England, laws and governmental practices of the sort that the First Amendment was drawn to prohibit. … When the FEC issues advisory opinions that prohibit speech, many persons, rather than undertake the considerable burden (and sometimes risk) of vindicating their rights through case-by-case litigation, will choose simply to abstain from protected speech harming not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas.”
5. “[T]he FEC has created a regime that allows it to select what political speech is safe for public consumption by applying ambiguous tests.  If parties want to avoid litigation and the possibility of civil and criminal penalties, they must either refrain from speaking or ask the FEC to issue an advisory opinion approving of the political speech in question. Government officials pore over each word of a text to see if, in their judgment, it accords with the 11-factor test they have promulgated. This is an unprecedented governmental intervention into the realm of speech.”
6. “The First Amendment provides that Congress shall make no law . . . abridging the freedom of speech. … The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations including nonprofit advocacy corporations either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election.”
7. “Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. … Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints. … Prohibited, too, are restrictions distinguishing among different speakers, allowing speech by some but not others.”
8. “Quite apart from the purpose or effect of regulating content, moreover, the Government may commit a constitutional wrong when by law it identifies certain preferred speakers. By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speakers voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.”
9. “… by its own terms, the law exempts some corporations but covers others, even though both have the need or the motive to communicate their views. The exemption applies to media corporations owned or controlled by corporations that have diverse and substantial investments and participate in endeavors other than news.  So even assuming the most doubtful proposition that a news organization has a right to speak when others do not, the exemption would allow a conglomerate that owns both a media business and an unrelated business to influence or control the media in order to advance its overall business interest. At the same time, some other corporation, with an identical business interest but no media outlet in its ownership structure.”
10. “The Framers may have been unaware of certain types of speakers or forms of communication, but that does not mean that those speakers and media are entitled to less First Amendment protection than those types of speakers and media that provided the means of communicating political ideas when the Bill of Rights was adopted.”
11. “Limits on independent expenditures, such as §441b, have a chilling effect extending well beyond the Government’s interest in preventing quid pro quo corruption.  The anti-corruption interest is not sufficient to displace the speech here in question.”
12. “We return to the principle … that the Government may not suppress political speech on the basis of the speaker’s corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations.”

Concurring Opinion, J. John Roberts and J. Samuel Alito:

1. “The Government urges us in this case to uphold a direct prohibition on political speech.  It asks us to embrace a theory of the First Amendment that would allow censorship not only of television and radio broadcasts, but of pamphlets, posters, the Internet, and virtually any other medium that corporations and unions might find useful in expressing their views on matters of public concern.  Its theory, if accepted, would empower the Government to prohibit newspapers from running editorials or opinion pieces supporting or opposing candidates for office, so long as the newspapers were owned by corporations as the major ones are.”
2. “The Court properly rejects that theory, and I join its opinion in full.  The First Amendment protects more than just the individual on a soapbox and the lonely pamphleteer.”

Concurring Opinion of J. Antonin Scalia (primarily in reference to the dissenting opinion of J. J.P. Stevens), joined by J. Samuel Alito and J. Clarence Thomas:

1. “Instead of taking [a] straightforward approach to determining the [First] Amendment’s meaning, the dissent embarks on a detailed exploration of the Framers’ views about the role of corporations in society.”
2. “The Framers didn’t like corporations, the dissent concludes, and therefore it follows (as night the day) that corporations had no rights of free speech.  Of course the Framers’ personal affection or disaffection for corporations is relevant only insofar as it can be thought to be reflected in the understood meaning of the text they enacted not, as the dissent suggests, as a freestanding substitute for that text.”
3. “Despite the corporation-hating quotations the dissent has dredged up, it is far from clear that by the end of the 18th century corporations were despised.  If so, how came there to be so many of them?”
4. “The lack of a textual exception [in the First Amendment] for speech by corporations cannot be explained on the ground that such organizations did not exist or did not speak.  To the contrary, colleges, towns and cities, religious institutions, and guilds had long been organized as corporations at common law and under the King’s charter … [as a historical matter of fact] [b]oth corporations and voluntary associations actively petitioned the Government and expressed their views in newspapers and pamphlets. For example: An antislavery Quaker corporation petitioned the First Congress, distributed pamphlets, and communicated through the press in 1790. … The dissent offers no evidence – none whatever – that the First Amendment’s unqualified text was originally understood to exclude such associational speech from its protection.”
5. “Historical evidence relating to the textually similar clause “the freedom of . . . the press” also provides no support for the proposition that the First Amendment excludes conduct of artificial legal entities from the scope of its protection.”
6. [In summary] “The [First] Amendment is written in terms of “speech,” not speakers.  Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals, and the dissent offers no evidence about the original meaning of the text to support any such exclusion. We are therefore simply left with the question whether the speech at issue in this case is “speech” covered by the First Amendment.  No one says otherwise. A documentary film critical of a potential Presidential candidate is core political speech, and its nature as such does not change simply because it was funded by a corporation.”

On another front regarding this same news event, it is being reported that CBS 60 Minutes in a segment aired 1/10/2010 with the authors of “Game Change” (the book which exposed the Reid remarks) the topic of Reid’s remarks were completely ignored. Ask yourself why, and try to answer honestly.  Watch clips here and see how obsessed CBS is with Sarah Palin, while having no time for Harry Reid’s racism – and let’s not forget, Sarah Palin is no longer an elected official, and Reid is the leader of the U.S. Senate.  View here.

Think for a moment about what free speech entails.  In addition to traditional notions of free religious and political expression, it is the foundation for free creative expression (for creations both good and bad).  This is the freedom to create and market a top 10 hit, a box office blockbuster, a wildly successful advertising campaign, etc.  It also is the freedom to create and have no commercial success whatsoever, as the vast majority of creative persons do (think: “starving artist”).  Free speech carries no guarantee that the message will be heard, liked or purchased.

With that set of essential background information out of the way, it was to my absolute horror what I read in an article in Variety which proposes a BAIL OUT of the TV Networks!  I hate to say it but: “OMG”!

If there is any lesson that needs to be taught and taught well, it is the lesson that the major television networks and newspapers need to learn some accountability for the garbage they propagate.  If noises begin to be made in Washington of a bail-out of the networks and newspapers, the crap needs to hit the fan.

It would be deplorable to spend taxpayer money propping up the very beast that continuously works to mold society into the image of its liking, that lies and conceals the truth from the public on matters of great national import, that fawns over candidates of their liking, that maliciously tars and feathers those they disagree with, and that constantly portrays violence as a primary dispute resolution method.

If the anti-social message of network television or shoddy newspaper reporting is worthy of a gub’ment bailout, then we are indeed in a dark era in American history.  Think about this double standard:  For years the networks have said “If you don’t like it, turn the channel.”  What good is it if we turn the channel, if the government comes along and props them back up?

Compare the notion of propping up gub’ment-friendly media to the restriction on establishment of a government-sponsored religion by the establishment clause of the Constitution (whereby government institutions are prohibited from establishing a state religion) – it seems to me we should be free from the government meddling in either aspect of society.

In sum, if the message is so poor that it is not sustainable, the government has no business in stepping in to prop it up – especially when the overtones are so politically charged.

During this period prior to the mid-1980s, the FCC additionally had rules regarding the number of stations a single owner could own.  For instance, under a 7-7-7 rule, a single owner could own 7 AM stations, 7 FM stations and 7 television stations (certain market based rules also applied to prevent ownership of AM, FM and TV in the same market).  Under such rules, the laws of mathematics dictated that, hypothetically, if there are 5000 AM radio stations in America, there would have to be about 714 different owners.  If you raised (relaxed) the ownership rules to 14, then you there would need be only about 357 separate owners.  The more it is raised, the lower number of owners are necessary to hold all the licenses.

During the 1980s and early 1990s extreme relaxation of ownership rules occurred for reasons that seemed to include the guise (pushed by the National Assoc. of Broadcasters) that the industry needed managerial and operational consolidation in order for the industry to survive.  The relaxation of rules has had many predictable but unintended bad consequences – but that’s a conversation for another day – today we’re concerned with the Fairness Doctrine.

Now, the constitutional issue (put in very basic terms) is that the Supreme Court must apply strict scrutiny to any limitation of speech by the government, especially limitations on political and religious speech.  A limitation is called a “prior restraint” and the Court says the strictest of scrutiny must be applied in determining whether a prior restraint is Constitutional (a prior restraint is un-Constitutional by definition).  Strict scrutiny means that (i) the government must have a compelling interest in limiting speech – this means critical and of high necessity, not just a desire by politicians to eliminate what they don’t want to hear; (ii) any law enacted that limits a fundamental right (e.g 1st Amendment speech) must be narrowly tailored so as to only address the critical need; and (iii) the law or policy must be the least restrictive means for accomplishing the objective.

The argument I make is that the Fairness Doctrine (or similar law) which forces a broadcaster to account for points of view on the airwaves is a restriction on free speech – a prior restraint.  It will either (i) force a broadcaster to air speech it does not desire to air because it disagrees; (ii) force it to air speech which is commercially unsupportable; or (iii) cause the broadcaster to discontinue the programming of broadcast content by those with political views altogether.

Consider these points:

1.  It is well-documented that generally, AM radio is flush with conservative talk, FM is flush with music and limited news/talk like NPR (generally considered centrist to liberal talk) and TV is flush with liberal sitcoms, liberal newscasts and liberal talk shows (with one exception, Fox News).  The point is, we already have fairness in the form of a sort of striated balance.

2.   The Supreme Court has determined that the free press guarantees of the First Amendment prevent any prior restraint on media.  The theory goes that bad speech will be punished and corrected by the market and by those actually harmed. Statements contrary to the public welfare would be punished after publication and that would curb their re-publication.   As an example, instead of regulating defamation, a defamed person or business may file suit and thence publishers (or those other would-be defamers) will guard themselves more carefully.  In a sense, in Patterson v. Colorado (US 1907) the Supreme Court established that the market and the legal system will self-regulate speech – but only after the word is out.  Bottom line, do you want to guard your tongue … or do you want the gov’t preventing your speech?

3.   Originally, the Fairness Doctrine was enacted to GIVE BROADCASTERS more rights because they were then-currently under a ban against editorializing.  Broadcasting and its regulation were so new on the scene that the government had to ease its way in to allowing broadcasters to editorialize, by regulating that they allow equal time for opposing views.  Its original purpose has been served.

4.   New media and technology further eliminate the “scarcity” concept.  While it remains true that there is only so much electromagnetic air space to allocate broadcast frequencies, that logic ignores modern reality.  First, the FCC has been creative in lowering the signal strength of allocated licenses and permitting greater levels of signal interference.  The advent of Low Power TV (LPTV) and Class A and LPFM (3K and less) has allowed the filling of may “holes” in the electromagnetic landscape.  I am not an engineer, but in theory, the delivery of digital broadcast signals permits the sending of a signal that should be less interference-prone and which should require less bandwidth on the spectrum.  This all ignores the glaring fact that anyone on a limited budget can create streaming audio, video and podcasts on the Internet.  Scarcity is a concept worthy of the term “relic.”

5.   Any perceived unfairness (one must assume that those in Congress who’ve raised the idea of reenactment of the Fairness Doctrine must consider there to be unfairness on the air) must be blamed, in part, on the government itself for permitting the extreme relaxation of ownership rules resulting in the consolidation of media ownership.  If XYZ Corp owns all five AM stations in Anytown, XYZ can put conservative (or liberal) talk hosts on one station and Polish polka on all the rest, eliminating the opportunity for another owner to present a counter-point.  Return of more reasonable limitations on ownership would result in a greater variety of owners and an increase in the diversity of voices in the marketplace.

In clarification of the legal standard of strict scrutiny and to nail the coffin on this, understand that the Supreme Court has determined that the Fairness Doctrine is a prior restraint on speech that requires strict scrutiny to pass muster.  In my opinion (in addition to that of the Court), forced fairness does not pass muster, in part because:

(i) The points of view expressed on the airwaves are not a legitimate government concern – there is no compelling interest to anyone except the person or party who believes they’re being unfairly treated. The concern (if legitimate) is not a government-wide or critical national concern (e.g. national security concern), so inherently the government has no compelling interest.  How can the government alone ever have a compelling interest in revocation of a fundamental right? Isn’t that what long-ago struck down anti-sedition laws were all about? (note to the unobservant – this is the nature of the site’s trademark: “the ongoing oxymoron”).

(ii) The speech-limiting effect of the Fairness Doctrine is not the least restrictive means to accomplish the stated goal of diversity of viewpoints on the airwaves.  Instead, re-installation of sensible ownership rules would give the FCC the perfect “out” that would result in diversity of voices on the airwaves without the issuance of government message mandates and the deployment of broadcast content nazis.

(iii) The anger certain politicians may feel from hearing the opinions and observations of conservative talk show hosts is arguably very well counter-balanced by TV news, talk shows and sitcoms, as well as by NPR, David Letterman, etc.

Regulation of political speech is clearly unlawful and contrary to the founders’ core beliefs. Actual fairness already exists in the marketplace.  It’s ultimately fairly simple.

For one, this site will serve to argue against re-adoption of the so-called “Fairness Doctrine”, based on the well-founded argument that the Fairness Doctrine is an unlawful prior restraint on speech which, when in effect years ago, was imposed in order to grant rights to broadcasters to editorialize and was technically based on the Federal Communication Commission’s notion of “scarcity”. With new media technology, scarcity no longer exists.

The Fairness Doctrine is a very dangerous proposition.  A short study of history reveals that the first move of a totalitarian regime is to take over the media and the last whimper of such a regime is their crackling voice heard over the air from deep within the bunker - media is all important to control and so it must remain in the hands of the citizens, not the government. As such, the recent momentum for revival of the Fairness Doctrine must be stopped.

This site, through editorial content and links to external sites, will also seek to expose and criticize government manipulation of the media and apparent media bias.

Please share this web site with like-minded friends and colleagues and keep up the fight against government control of the media. Even with the lopsided liberal slant of television and print, the media is our last best hope to resist a disastrous slide to socialism, or worse.  Support the advertisers of local and clear-minded media and turn your backs on those who support media which undermines the Constitution and would help others bastardize traditional American culture and our free economy.  The enemy of the truly free press is not elite, liberal, white, black or otherwise.  It is those of any ilk who would undermine free access to information and free expression, for the purposes of control of the less-informed masses and creation of a political stronghold.  So far, the Democrat Congress and Obama are scoring very poorly as they’ve tipped their hand several times to reveal a bona-fide lust for un-Constitutional media control.