A commenter on the NBC must stop running Fred Thompson Law & Order thread writes,
And they must also cease broadcasting any movies where Fred was an actor, such as The Hunt For Red October where he was a carrier admiral.
Because we don't have freedom of speech in America any more.
The first paragraph is right, but the second one misses the boat. Remember that radio and television broadcasting was heavily regulated in the U.S. -- considerably more heavily than it is today -- nearly from its birth. The "equal opportunities" rule is quite old. Its exceptions for news are actually a Congressional liberalization of the rule following an FCC decision in the late 1950s that applied the rule even to certain news coverage of candidates. The Fairness Doctrine, in various of its guises, was around for decades until it was repealed by the FCC in the late 1980s.
The underlying ideology behind all these restrictions, which is chiefly that the communications spectrum is scarce public property that is held more or less as a public trust by the licensees, and that the licensees must therefore be subjected to various restrictions and access mandates -- even when those mandates deter the licensees from carrying certain speech -- has thus been around as long as broadcasting has been. In some measure, recent decades have seen something of a retreat from the high-water mark of such restrictions.
Nor can one say that somehow free speech protection was pure until the 1920s or 1930s in the non-broadcasting media, and the broadcasting restrictions were a retrenchment from traditional protection. Before the 1920s and 1930s, courts upheld various restrictions on advocacy of illegal conduct, broad libel rules that had the effect of deterring not just falsehood but opinion and true statements, obscenity laws that went far beyond hard-core porn, restrictions (often enforced by judges using criminal contempt power) on coverage of trials and criticism of judges, and a wide range of other restrictions. And movies essentially lacked any First Amendment protection from the 1910s to the 1950s.
So one can certainly argue against restrictions on broadcasters; I sympathize with these arguments, and there's some reason to think that the Court would, too, if such a case came before it. But there's no justification for casting this as some sort of recent loss of traditionally recognized free speech protections. Where it comes to broadcasting, the general trend has been towards more protection of broadcaster rights (especially with the abolition of the Fairness Doctrine, though with a bit of recent retrenchment on vulgarity and nudity), not less.
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In addition, the context of the period is missing here, as it is with many discussions of freedom of speech issues in even earlier periods (such as the 19th century.) Yes, there is a paucity of court decisions or administrative actions by the FCC prior to the 1950s (or not really until the 1980s) that were protective of free speech. But the context that is missing is how much enforcement activity against controversial speakers on the airwaves existed before that time. I'm not an expert, but I'm guessing not much. Remember Father Coughlin? I doubt any 30s-40s version of the Fairness Doctrine was used to "balance" his speech. In short, the government's actual use of its theoretical power to impede speech in that period was less intrusive, simply because the federal government was less intrusive and powerful. As its power increased, and the number of government employees rose, more impingements happened, leading to a (fortunate) backlash from free speech protectors who needed to commence court action and lobby the FCC to protect a modicum of liberty over the broadcast spectrum. So it's not fair to say, I think, that broadcasting was a wasteland of censorship prior to the 1980s; we face a far greater threat now, with a strong federal government able to actually enforce an anti-free speech agenda, should the party of censorship ever gain the upper hand in Congress, the Courts, and the administrative agencies.
Except that we now know that this understanding is technically flawed or rather that the scarcity is grossly exaggerated by policy.
In some sense, the amount of information that can be conveyed is limited. Its known as the Shannon limit. That is, for a given width of spectrum and power, the information that can be conveyed is constrained. But here's the kicker, we're nowhere near the shannon limit--except in particular situations such as deep-space communications wherein we are very power-limited.
Second, resources are consumed only on a directional basis. Thus, if know with precision the location of the transmitter, many many sources can simultaneously use the same frequency-space at the shannon limit.
Third, most allocation is wasted due to inactivity. Large sections of spectrum are used only occasional. This problem is the same thing that makes the Internet (packet switched) more efficient than the telephone network (circuit switched).
Please recall that the reason for Federal regulation of all broadcast radio (not just the commercial part) was simply that state-by-state regulation simply did not work for technical (in the sense that they are based on physical law) reasons- a broadcast does not stop at the state line simply because you pass a law saying it must. This state of affairs made commercial use difficult at best, which is why the development of nationwide, enforceable standards and rules was welcomed by most at the time, especially those who saw an opportunity to make money.
What you refer to as a "massive "taking" of what until then were private airwaves, with no compensation whatsoever" allowed and encouraged the development of the commercial radio and TV networks which have made billions of dollars for their owners. I will argue that this more than compensated them for their trouble.
Not all regulation is bad.
I seem to recall learning that the radio people basically begged the federal government to do something because they could not operate otherwise.
You ae correct- generally we are nowhere near the Shannon limit. The problem is that the technology neded to get near the limit is relatively new (in society's terms- not in Moore's Law terms) and not widely available.
And yes, part of the reasons it's not widely available are regulatory in nature, but that's not thewhole story either.
Well done.
Because just about everything else has been regulated.
~ C. Hightower
Lucky Cullen. He lived in a simpler era.
Folks, Congress has no business regulating communication.
One of the Federal Radio Commission's early enforcement actions was in 1930, against a surgeon who owned a Kansas radio station on which he advertised his "sexual rejuvenation" techniques that involved implanting slivers of goat testes into men's testicles. (This case is described on the Wikipedia page I linked to.) The FRC denied his request for renewal.
The FCC was created by the Communications Act of 1934 -- admittedly a New Deal creation. But the FCC took over the role of the old FRC, and its statutory mandate (Title III of the Communications Act) was similar to the Radio Act of 1927.
Except, IIRC, the CCA is a private self-regulatory body. It was admittedly established in response to pressure from Congress, but it is no more a form of government censorship than the MPAA.
But the states do? My understanding is that the government auctions licenses to the radio airwaves because otherwise people would set up broadcasting and run all over each other -- if I'm broadcasting on 91.2 and you also want to broadcast on 91.2, without someone to arbitrate the dispute by giving it to the highest bidder, neither of our transmissions would come through clearly for all relevant listeners.
To some extent I think EV misses the point of many critics of creeping censorship (at least on the center-right); their focus is on restrictions on "core" political speech and electioneering and less on speech focused on other issues.
I'm still trying to figure out when the golden age of political free speech was. It surely couldn't have been the period from about WWI to Vietnam when leftists, particularly communists and those who advocated against conscription and the war de jour, had laws ranging from the Espionage Act to the Smith Act used against them merely for speaking and assembling. Or are center-right critics of creeping censorship only worried about creeping censorship of center-right speech?
The law reads: If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station ...
Stop there: L&O is not a "person who is a legally qualified candidate for any public office." Fred Thompson is.
So why pull the episodes? Under what legal principle is L&O considered to be a candidate? To my knowledge, Mr. Thompson does not direct their business activities in this regard; they act independently of him, he being essentially a hireling who once worked for them.
Since the licensees are not actually permitting Mr. Thompson (nor a proxy controlled by him) to use their airwaves, where's the justification for pulling the episodes? Is it just fear of the FCC as a bully?
Sorry if I'm being a little thick on the legalities here (IANAL) but Thompson isn't L&O and L&O isn't Thompson, no more than UCLA is Eugene Volokh is UCLA. Correct? Separate legal entities, right?
Well that and the fact that there is a massive entrenched interest in keeping radio spectrum scarce. After all if your a large media company who has huge amount of capital in radio spectrum you definitely don't want to see that spectrum devalued by orders of magnitude more efficient use. While government regulation of radio frequency was certainly necessary (tho not the content regulation) it also has the standard harms of creating a powerful interest in using that regulatory power to enforce the status quo.
I don't know whether to blame corporate influence or simple incompetence but there have been a fair number of economic studies showing that the design of FCC spectrum auctions is particularly poor (susceptible to signalling, unagreed coordination etc..)
Sasha: Yes, some limited federal regulation did emerge in the 1920s. Quantitatively and qualitatively it was far different from the regime that took control in the 1930s; most regulation regarding out and out censorship(to the extent it even existed) was still local until then. Not surprisingly, where the feds did come down hard was on anything sexual in nature; and the fact that pornography or communication that violated the sexual decorum of the era was often suppressed by the states or the feds is not debatable. What we're talking about here is whether core political speech in the broadcast arena was often suppressed under the political mores of the time. I assert that it wasn't. The problem with today's environment is that yes, we have good legal checks on state or government speech suppression (and I support these!), but that a huge swath of the public and the elite simply do not support with those safeguards. And if these people come to power, those checks on governmental power may fall by the wayside, and true suppression of a kind we haven't yet seen in this country could occur. This scares me, and I think that Prof. Volokh's attitude on this issue is a little too Panglossian for my taste. We need to be more vigilant, not less, and idealizing our current era and demonizing the past does not help.
If we accept the current allocations of AM, FM and TV bands, then the spectrum allocation policies within them to allow the particular modulation methods are pretty sensible. In some geographical areas (typically major metropolitan areas), the bands are pretty well packed wall-to-wall with (mostly) non-interfering signals. In others (less densely populated areas), some broadcast allocations are still available.
One could quibble, for example, that less than the current guard band between adjacent FM channels would be adequate nowadays with better adjacent channel rejection in modern tuners. But the way stations have been shoehorned into the present allocations in some areas would still cause significant interference between stations at their fringes if the center frequency allocations were spaced more closely.
One current issue is that the new experimental Digital Audio Broadcast method (IBOC) now being tested on the FM bands is playing hob with interference between various FM stations' fringe signals. This is due in part to the fact that IBOC had to also be backward compatible with ordinary FM detection.
Changing policy for broadcast modulation methods, and allocating new broadcast bands, is much more a matter of economics than technology. For example, not much more than 50 years ago, new noncommercial KPFA, Berkeley, CA, was selling very cheap FM receivers with listener subscriptions just to create an available audience.
My point is that if regulations change modulation methods within currently allocated broadcast bands, lots of people will have to buy new receivers. The installed base of AM, FM and TV receivers is huge. Precipitously reallocating bands or changing broadcast modulation methods would create considerable static from audiences more than from broadcasters.
Alternatively, allocating new broadcast bands, and new modulation methods for them might be done much more smoothly. But the question for that would be where (or from which current licensees in non-broadcast services) the new band allocations would be taken.
Most spectrum up to about a Ghz is fairly well populated already. New spectrum allocations for broadcast in that range would require taking the spectrum away from some current services.
I'm not opposed to rethinking allocations and modulation methods for broadcast services. I'm just saying it isn't as easy as it might appear. That's because technology isn't the only issue.
Actually, I would miss the Red October movie more than L&O. Though I think Harrison Ford makes the best Jack Ryan, this is still my favorite Clancey movie (and probably his best book too, as it apparently got the most research).
I don't think that scarcity is the basis for the Fairness Doctrine. Instead, its the justification for the entire regulatory scheme. You raise a good point about cable but the FCC apparently holds sway here:
http://www.fcc.gov/cgb/broadcast.html
On an earlier post:
"in essence, the feds instituted a massive "taking" of what until then were private airwaves, with no compensation whatsoever"
I'm curious as to how one would acquire an ownership interest in some portion of the airwaves? How would you prove it? Whoever had the most powerful trasmitter would rule the spectrum?
How is this any different from physical property? Wouldn't we have precisely the same problem, for example, if we suddenly decided to turn Central Park over to private ownership?
Presumably we once had the same problem with land, with whoever was strongest taking whatever land they wanted. But then we decided to register titles to land and to use public resources to protect private titles.
I think radio spectrum is precisely analogous.
In fact, one could imagine a country where all land is owned by the government and people just "license" portions of the land. They pay taxes on it and have to submit to government regulation of what they do on that land.
Oh, wait, that's exactly what we have!
This policy:
"We will show no show that contains a candidate."
and this policy:
"We will show what we would normally show whether it contains a candidate or not."
both comply with the terms. They provide precisely the same opportunity to all candidates.
Actually, it won't be, because the companies that sell them -- they've actually already been sold, so it's moot anyway -- sell them to cable, not broadcast. It's only NBC that's affected, and they only get limited re-run rights anyway. (Typically, the network can show the episode no more than three times, including the first-run showing.)
But there's no reason that this requires a regulatory agency and "licenses". The government didn't "license" your front lawn to you and we don't have regulatory agencies to prevent me from building a house there. Sell it off, and then enforce trespass or nuisance laws.
Correct - I was being ironic. McCain-Feingold has lots of consequences and this one is more a comic example of the law of unintended consequences than something serious. But it is an effective example of what the First Amendment was supposed to prevent.
Not sure if you're just making an analogy here but the regulations in question here don't have anything to do with McCain-Feingold.