Corn-Revere: broadcasting deserves full First Amendment protection, and social media should keep theirs
Since leaving the FCC as legal assistant to the late FCC Commissioner James Quello in 1994, Robert Corn-Revere has been very busy, establishing himself as one of the leading advocates of the First Amendment, representing no not only broadcasters in their never-ending battle against indecency at the FCC, but also other media companies and individuals who feel their free speech rights have been violated.
Much of what he has learned over the years has been distilled into his new book, The mind of the censor and the eye of the beholder, a rapid but substantial history of government censorship that dates back almost to the Civil War.
This is not a lawyer book. The story is built on the tales of American censors in the flesh – Anthony Comstock (books and other printed matter); Frederic Wertham (comics) Tipper Gore and Susan, wife of James Baker (recorded music); and Newton “Vast Wasteland” Minow and Brent Bozell (broadcast).
In this interview with TVNewsCheck Editor-in-chief Harry A. Jessell, Corn-Revere, explains the courts’ reluctance to extend full First Amendment protection to broadcasters and allow the FCC to continue to interfere in broadcast programming.
He provides free legal advice to broadcasters who might understandably be confused by state regulation or indecency regulation and says that with the right case, broadcasters could finally break free of not only content regulations, but also ownership restrictions.
And he says that despite all the new alarms and concerns they raise, Facebook, Twitter and other social media deserve no less protection from censors and government regulators than any of their predecessors.
An edited transcript.
As your book details, we have had a series of federal court decisions over the years that have curtailed the FCC’s efforts to enforce indecency, but never really succeeded in declaring them unconstitutional and to free broadcasters from the constraints of indecency. How come?
The court has always been reluctant to enter into this case. This happened just after radio regulation began in the twenties and early thirties, when the issue would potentially go to the Supreme Court. At the time, Chief Justice William Howard Taft said he wanted to postpone resolving the constitutional status of broadcasting for as long as possible because for him this radio mystery was akin to the occult and he did not so just did not want to face it. .
And I thought we had such a case in the last round of indecency cases that went to the Supreme Court in 2012, cases involving the Super Bowl wardrobe malfunction and the case regarding the music awards show on Fox where the FCC and Congress toughened the indecency policy and the constitutional question were raised by the Second Circuit for the Supreme Court to decide.
During the pleadings on this case I think it was the judge [Samuel] Alito who said why do we have to deal with this why don’t we just wait for the broadcast to go away. So the court was really reluctant to deal with these issues and in particular the constitutional status of broadcasting because it is a constitutional anomaly.
You have a First Amendment that was passed saying that Congress will not make any laws restricting freedom of the press or of speech. It was adopted in part as a reaction to European press licenses. But, of course, once a new technology emerged in the early part of the 20th century, the reaction of Congress was to license it to establish the very type of press license that prompted the passage of the First Amendment in the first steps.
You would think that if you just recognized that traditional First Amendment standards apply, you would end all this back and forth.
So, given the current state of uncertainty in the law, give broadcasters a dos and don’ts list to avoid FCC issues over indecency.
I can give you a list of risk factors.
Give me three.
As broadcast regulations are currently in place, indecency rules do not apply after 10 p.m. this.
The FCC is ultimately a political body, and it will respond to political demands from the public and Congress. Whether or not the FCC wins in an after 10 p.m. nudity case, you might probably have to make a case for it.
The second risk factor would be anything that involves profanity. The standards have changed over time, but George Carlin’s Seven Words would be examples of the sort of thing that if you used them on a prime-time broadcast it would be risky and it could lead to a complaint and to a case.
The third risk factor would be live broadcasts, as spontaneous live broadcasts are situations in which just about anything can happen and as we know from the Super Bowl broadcast, the FCC may attempt to hold broadcasters down. responsible for what goes on in those live broadcasts.
As you point out in the book, the FCC doesn’t have to go to the trouble of fining a station and then defending the fine in court. He can just blackmail the station like he did in the case of WDBJ in Roanoke, Virginia. [Editor’s note: In 2015, the station inadvertently aired a tiny pornographic image for a second or two that appeared on a computer screen in the background of a newsroom shot. A producer was working on a story about a public employee who was in trouble for working in porn. Upon a complaint, the FCC fined the station $325,000 and, because the station was in the process of being sold, it threatened to withhold its approval of the sale if the station challenged the fine and didn’t pay up.]
Blackmail is such an ugly word.
Well that’s what you call it in your book.
Yes I did it.
Now, this has happened after the latest round of Supreme Court rulings that drew constitutional lines on how far the FCC could go. I think the commission quite rightly saw that if it had to defend its standard again in the courts, it would have a hard time doing so.
They were able to decide this case and did not have to rule on the constitutional merits. There have been cases in the past where the agency allowed a deal to go through, but also allowed the former station owner to keep their challenge to the conclusion, but in this case they refused. to do.
It doesn’t seem fair.
No, this is not the case. You’re robbing someone of their day in court.
Frankly, indecency is not the main regulatory concern of broadcasters these days. They are seeking relief from property restrictions. Is there a case that can be done to knock them out, maybe on the basis of the First Amendment?
Well, there could be and, again, you’d be looking for the right set of facts. One aspect of regulating broadcasting is that it has always been linked in one way or another to technology.
The initial justifications were that due to the nature of the electromagnetic spectrum, Congress had to regulate broadcasting in a fundamentally different way from other media.
Now I dispute that, but this is the rationale that was used, and it was accepted by the courts and in the sixties and seventies was probably the highlight for the courts accepting justifications from the FCC for various types of regulations, including structural regulations.
I think as technology has changed and broadcasting has come with competition from all quarters, the arguments for regulating broadcasting differently become less compelling. You could make a constitutional argument, and it would depend on having the right case and the right set of facts.
Broadcast indecency is kind of old news. The big First Amendment debate today is about what to do with social media. They are central to the concerns of the public and policy makers, as print, recorded music, comics and broadcasting were at their peak.
Now a lot of people’s gut response is, we need a Federal Social Media Commission, we need some sort of regulatory solution, and having worked in government and seen how these types of things work, my feeling is that this is a problem.
There is no problem that cannot be made worse by government intervention, and the regulatory solution will almost always be worse than the disease. I mean, choose your poison. Is the problem that these big social media companies have too much power? What happens when you put the government above these social media companies and they make the decisions?
You have just consolidated the effective power into one source. You can decide for yourself whether this would be a good thing or not depending on who you are putting in charge and that will change from administration to administration. So, trying to find a quick fix to a very complicated problem presents greater difficulties and bigger problems.
What we should do about it really depends on whether or not people deserve to be free. Most of the problems people identify with social media come from what people post there, from what people tell themselves. If you don’t like it then you don’t like the concept of freedom.
Now, can there be any problems handling this? Of course it can, and there is a lot that is published that is causing problems. We have to find a way to fix this, but I think the solution is really to find a way to make people understand government better, have a better understanding of history, understand how to critically assess l information, to have the media literacy.
And the idea of Donald Trump? Use the leverage you can get from section 230 to prevent social media companies from managing what gets posted on their sites so that they become public places where anyone can say whatever they want. It sounds like freedom to me.
Well, that’s not a real freedom for platform owners. You ignore the idea that a platform owner has the ability to decide what kind of community they want to foster, what kind of rules they want to have. I think it’s a First Amendment right as well. Platform owners should have this right. And most users are happy that platform owners try to have certain types of terms of service or moderation rules.
The difficulty is that people do not agree on what these rules should be. To use Trump as an example, he doesn’t agree with the way Twitter or Facebook has treated him. Oddly enough, he’s making his own social media platform that includes terms of service, as I read about them, that say it’s a free speech platform, except you can’t criticize me or criticize the platform. Therein lies the problem.
Everyone wants free speech, but they want to be able to limit what the other says, which is ultimately the failure to put an entity, by putting the government in charge of deciding what the rules should be for. everybody.