Losing the First Amendment

The print media may well be the foundation of the American political system. Since before Benjamin Franklin absconded from his indentured servitude as a printers apprentice and chose to live as a semi-fugitive, the printed media has served as a platform to incite discussions on fairness and equality. Men like Adam Smith that authored a series of pamphlets named “An Inquiry into the Nature and Causes of the Wealth of Nations,” and John Locke with “The Second Treatises of Government,” laid the foundation for what the new world was to become.

During the framing of the US Constitution, a series of articles written by Alexander Hamilton, James Madison, and John Jay that came to be called the Federalist Papers appeared in the newspaper, The Independent Journal and were designed to persuade the population into ratifying the US Constitution. It was from these writings that evolved our Bill of Rights that guaranteed among other things that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” But regardless of this guarantee, our freedoms are fragile, and without due attention can be fleeting.

The Fairness Doctrine

The Fairness Doctrine’s importance was in the limited available spectrum utilized by the various broadcast networks. The internet did not exist. Cable television was not available. There was radio, newspaper, and TV. We had television that consisted of Very High Frequency that covered channels one though 13, and Ultra High Frequency for channels 14 and higher. Channel one was later reserved for war purposes after 1941, which is why it is not accessible on your television today.

The Fairness Doctrine was introduced in 1949 to preserve fair and balanced reporting of important social issues. The mandate had little to do with providing equal time to contrasting viewpoints as it did require that those contrasting viewpoints be offered. As a child I remember a stuffy old man that would come on KSL Channel 5 for 30 seconds to lecture on whatever, that was the KSL television editorial commentator, Don Gale. He was honoring the Fairness Doctrine by providing a contrasting viewpoint. And later I found out, he was far from stuffy. Such voluntary compliance was a testament to the success of the program as noted by the Federal Communications Commission in 1974 with the caveat, "Should future experience indicate that the doctrine [of 'voluntary compliance'] is inadequate, either in its expectations or in its results, the Commission will have the opportunity—and the responsibility—for such further reassessment and action as would be mandated."

None of this is to say that the fairness Doctrine did not experience its own set of problems. Multiple Supreme Court challenges questioned the constitutionality of the program that was upheld under the understanding that electronic media has limited distribution while newspapers for their maturity had a more diverse and thus fairly competitive market. Ultimately in 1987 the US Supreme Court ruled in Meredith Corp. vs. FCC that the FCC was no longer held to enforcing the Fairness Doctrine as it was not a mandate of Congress.  In response an attempt was made by Congress to legislate the Fairness Doctrine, but was vetoed in 1987 by then President Ronald Reagan who felt embattled by the three major networks at the time, and was again stopped in 1991 with a promised veto by then President George H.W. Bush.

Later that year the FCC in a unanimous decision voted to remove enforcement of the Fairness Doctrine citing, “We seek to extend to the electronic press the same First Amendment guarantees that the print media have enjoyed since our country's inception.”

In the period since 1987 we have met Rush Limbaugh, Sean Hannity, and Glenn Beck. We have met John Stewart and Steven Colbert. We have been witness to divisive media that pits American against American. We have seen the broad diversity of the public media again become distilled into the hands of a few media giants that control everything from the music we listen too, to the newspapers and magazines we read, to the TV we watch, the movies we enjoy, and the internet we surf. This is the very action that the Fairness Doctrine was intended to prevent.

As Justice Byron White wrote for the court in its unanimous 1969 Red Lion Broadcasting Co. vs. FCC decision, "A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others.... It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount."

Jane Akre & Steve Wilson vs. Fox Broadcasting

The Telecommunications Act of 1996 was the first significant overhaul of the Communications Act of 1934, which created the Federal Communications Commission. The new Act sought to broaden the field of the media industry by allowing anyone to "let anyone enter any communications business…" but it instead had the effect of concentrating media ownership that gave large news organizations a direct influence over local reporting.

Jane Akre and her husband Steve Wilson were a husband and wife journalism team working for Fox subsidiary WTVT in Tampa, Florida in 1997 when they began working on a story regarding the agricultural biotechnology company Monsanto and their use of recombinant bovine growth hormone (rBGH) in dairy producing cows. Monsanto responded with a threatened lawsuit if WTVT chose to air the story. WTVT responded by airing a Monsanto rBGH positive story. Ultimately Akre and Wilson were dismissed as a result and in a subsequent lawsuit won their claim under Florida’s whistleblowing statute, but lost under appeal as The Communications Act of 1934 did not specifically prohibit the distortion of news. At no point during the trial did Fox Broadcasting dispute their distortion of the news, they only cited that it was their prerogative to do so. The ruling gave Fox the permission to present the news however they saw fit, and this is the very reason that Fox News is not shown in Canada. Canadian stations with similar ambitious are also denied a broadcast license.

Espionage Act of 1917

The Espionage Act of 1917 was enacted shortly after the United States entered into World War I with the expressed intent to prohibited any attempt to interfere with military operations, to support U.S. enemies during wartime, to promote insubordination in the military, or to interfere with military recruitment. The draft originally proposed by the President Woodrow Wilson proposed a measure that included press censorship, but the House declined and Wilson begrudgingly signed the Act without the provision on June 15, 1917. The law was made to include the Sedition Act of 1918 eleven months later that included a broad range of offenses that are normally covered by the First Amendment of the US Constitution, but that specific provision was repealed in 1920. The Espionage Act itself still remains with infrequent updates and enforcement of the Act is at the discretion of the US Attorney General.

Notable persons prosecuted under the Act would include columnist and suspected spies Julius and Ethel Rosenberg. Ethel was posthumously exonerated, though it was later revealed that Julius was indeed involved in passing information to the Soviets. Noted whistleblowers Daniel Ellsberg, and US Army Pfc. Bradley Manning had also found their way into prosecution for very similar actions. Ellsberg was eventually hailed as a hero for his leaking information on the Viet Nam war while the case remains to be seen on Manning. Five other relatively recent cases have also found themselves under the magnifying glass. You may not know the names, but if you’ve been paying attention, you would know the stories: former senior executive at the National Security Agency, Tom Drake; Former FBI translator, Shamai Leibowitz; former State Department contractor, Stephen Jin-Woo; former CIA Agent, Jeffrey Sterling; former CIA Director of counter terrorism operations in Pakistan, John Kiriakou; and former Department of Justice Attorney, Thomas Tamm. 

Reporters as well are caught up and threatened in the dragnet approach of national security, most notable to me would be New York Times reporters, James Risen and Eric Lichtblau that were awarded the Pulitzer Prize for National Reporting in 2006 for a series of controversial investigative reports that they co-wrote about the National Security Agency's surveillance of international communications originating or terminating in the United States codenamed "Stellar Wind" and about a government program called Terrorist Finance Tracking Program designed to detect terrorist financiers, which involved searches of money transfer records in the international SWIFT database. SImilar to the New York Times, and Risen and Lichtblau, Wikileaks and its founder, Julian Assange remain beset by difficulty at the behest of State Department officials from being made to relocate their servers to having their funding blocked. At least eleven of those 13 names should be honored as national heroes rather than just Ellsberg's, not forgotten in the winds of history along with an unknown number to come. All of these individuals have provided rich context from which we are able to understand the workings of our government.

Smith-Mundt Modernization Act of 2012

As evidenced by the above names, Washington and the military have long played politics in the media. A quick scan of your local TV listing would reveal any number of programs that air with the governments blessing so long as the government is portrayed in a positive light. Immediate examples on television would include NCIS and Army Wives. Examples of movies would be Top Gun, Transformers, Battle: Los Angeles, Battleship, Act of Valor. All play a subtle role in developing desired behaviors in the public and the enlisted ranks which all dance the edge of permissible propaganda that has been explicitly forbids targeting American citizens on American soil since 1948.

The Smith-Mundt Modernization Act of 2012 is being written into the Fiscal Year 2013 National Defense Authorization Act that would remove the distinction between foreign and domestic audiences similar to the removal of the distinction between foreign and domestic combatants in the FY2012 NDAA. Entirely too much we sit back and watch this happen. Though these laws may have originated in private, the smoke filled rooms where this kind of legislation once originated is happening before our very eyes. The smoke filled rooms of the past have become the House and Senate floors of today!

These bills are being passed with remarkable swiftness with nary a debate in the House and near unanimous votes in the Senate. Our politicians do not speak for us and those that we depended on to explain these issues for us are falling silent. This is not America, and this is not our representational republic. As President Abraham Lincoln said, “America will never be destroyed from the outside. If we falter and lose our freedoms, it will be because we destroyed ourselves.” And he may well be right.

Channel one may soon be on your TV.