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Tuesday, July 8, 2008

Liberals Abandoning the First Amendment, Part 3: The Fox Case
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Early in 2007, I started penning---but somehow failed to continue---a series of essays about how I was troubled that so many Democrats and liberal intellectuals appeared to be abandoning their First Amendment heritage. As I pointed out at the time:

The idea that the Democrats are the party of free speech and the great protectors of our nation's First Amendment heritage has always been a bit of a myth. In reality, when you study battles over freedom of speech and expression throughout American history you quickly come to realize that there are plenty of people in both parties would like to serve as the den mothers of the American citizenry. That being said, it is generally true that there have been a few more voices in the Democratic party willing to stand in opposition to governmental attempts to regulate speech in the past.

But I'm starting to wonder where even that handful of First Amendment champions has gone. Sadly, examples of Democrats selling out the First Amendment are becoming so common that I've decided to start a new series to highlight recent examples of Dems actually leading the charge for increased government regulation of speech and expression. I want to stress that I'm not trying to pick on Democrats here, rather, I'm just trying to point out that-unless there is a sea change in their approach to these issues by Democrats in coming months and years-both parties now appear to be singing out of the same pro-regulatory hymnal. This constitutes an ominous threat to the future of free expression.

This seems like a good time for me to pick this theme back up because later this fall, the Supreme Court is set to consider FCC v. Fox Television Stations, which could become the most important First Amendment-related court case since FCC v. Pacifica Foundation, which just turned 30 years old last week.

Amicus briefs are starting to be filed in the matter, and you won't be surprised to hear that several social conservative, pro-regulatory activist groups have already petitioned the Court to uphold the FCC's authority to censor broadcast television and radio content. What is surprising, however, is the lack of liberal groups or Left-learning intellectuals engaging in the matter. One would hope that at least a few lefties would file in opposition to over-zealous FCC regulation of speech. Sadly, however, to the extent any liberals have filed so far, it has largely been in an effort to undercut the argument broadcasters are putting forward in defense of their First Amendment rights, or to encourage the Court not to touch other regulatory sacred cows of the political Left---namely the Supreme Court's 1969 Red Lion decision and FCC's ambiguous "public interest" authority to comprehensively regulate media markets.

Consider this filing submitted by several liberal activist groups like Free Press, New America Foundation, Consumer Federation of America, Consumers Union, Participatory Culture Foundation, Acorn Media Foundation, as well as a couple of academics, like Susan Crawford and Monroe Price. These are some of the leading lights of the Left on communications and media policy.

With the Fox case, we have, quite possibly, the one major chance in a generation to make profound statement about the role of the FCC in policing speech in society. And what do these leading intellectual lights of the Left do in their 42-page brief to the court? They relegate the First Amendment to the equivalent of a footnote in the matter. The First Amendment is barely even mentioned in this filing; it is an afterthought.

Instead, they make everything subservient to saving Red Lion and maintaining the FCC's authority to comprehensively regulate media markets. Red Lion, you will recall, is the Supreme Court's historic 1969 decision legitimizing the hideously misnamed "Fairness Doctrine." Of course, it also serves as the foundation for just about every other sort of media regulation that the FCC enforces: i.e., ownership restrictions, educational TV mandates, advertising restrictions, political advertising mandates, must-carry rights, and so on. The lynchpin of the Red Lion decision is the scarcity doctrine. In essence, the court held that the supposed scarcity of media outlets (or at least broadcast spectrum licenses) somehow justified comprehensive regulation of the media marketplace.

Liberals have long been in love with Red Lion and continue to rely on the case in one filing after another before the FCC and the courts in support of their efforts to justify existing or proposed media regulations. Of course, in light of the explosion of media options and competition, Red Lion and the "scarcity doctrine" have become utterly intellectually bankrupt rationales for regulation. But that hasn't stopped the Left from pinning all their regulatory hopes on the doctrine and attempting to breathe new life into it at every turn.

Even more troubling is the fact that their filing argues that the Internet is some how touched by Red Lion. "[Q]uestioning Red Lion," they say in their brief, "could throw media, spectrum, and Internet policy into chaos." (p. 15) Excuse me? The Internet will be thrown into chaos if Red Lion is altered or abandoned by the court in the Fox case? I wasn't aware that Red Lion had suddenly empowered the FCC to regulate this abundant medium known as the Net!

I won't belabor this point about the scarcity rationale being dead and Red Lion being bad law, instead I'll just refer you to the last major thing that the FCC said on the matter. Three years ago, the FCC published a staff report by John Beresford, an attorney with the FCC's Media Bureau, entitled, "The Scarcity Rationale for Regulating Traditional Broadcasting: An Idea Whose Time Has Passed." That title pretty much says it all, but Beresford went on to say: "[T]he Scarcity Rationale for regulating traditional broadcasting is no longer valid" and from there laid out a devastating case against Red Lion and the scarcity rationale. Calling the scarcity rationale "outmoded" and "based on fundamental misunderstandings of physics and economics," Beresford went on to show why just about everything the FCC every justified on this basis was misguided and unjust. He points out what countless economists have concluded through the years, namely that:

(1) the scarcity the government complained of was "largely the result of decisions by government, not an unavoidable fact of nature." In other words, the government's licensing process created artificial scarcity.

(2) a system of exclusive rights would have ensured more efficient allocation of wireless resources.

(3) even if there ever was anything to the scarcity doctrine, there certainly isn't today in our world of information abundance.

Anyway, you get the point. Even people working at the FCC don't take Red Lion or the scarcity rationale seriously anymore! Why then do these liberal academics who filed in the Fox case? They would be better served by shifting their regulatory rationales away from the hopelessly ambiguous and intellectually bankrupt "scarcity rationale" and toward an antitrust-based form of analysis based on market power considerations. But it is precisely because Red Lion provides them so much more regulatory wiggle room that they remain wedded to such a discredited theory. One wonders how long that farce will continue.

Regardless---and getting back to my main point here---it is absolutely shameless that these liberals would use this rare occasion to file a brief before the highest court in the land and not bother defending the First Amendment and free speech rights. We know we can't trust the Right to defend the First Amendment, but the fact that the Left is abandoning it too is really troubling.

posted by Adam Thierer @ 12:38 PM | Free Speech

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