October 20, 2004

October 20, 2004 | Commentary on

Big Government's Threat to Free Press

"They better hope we don't win."

That's the blunt warning political operative Chad Clanton recently delivered to the journalists at Sinclair Broadcasting. Clanton's boss is John Kerry, the subject of a highly critical documentary Sinclair plans to air later this month.

But it isn't just Sinclair journalists who should worry about this threat. What Clanton has in mind for Sinclair would severely damage the free press guaranteed by the First Amendment and the public accountability and transparency of government assured by laws such as the Freedom of Information Act. One need not like Sinclair or the political views of its owners to recognize Clanton's thuggish remark for the threat it is. (Kerry, incidentally, has yet to repudiate his aide's remark.)

Clanton's remark was spoken to a national TV audience Oct. 12 during Fox News' "Dayside" program in a segment devoted to demands by the Democratic National Committee and the Kerry campaign that the federal government stop Sinclair's planned broadcast of "Stolen Honor," a controversial documentary focusing on Kerry's anti-Vietnam war protests and their demoralizing effect on American POWs being tortured in North Vietnamese prison camps.

Sinclair is a Baltimore-based broadcast group that owns 62 television stations, many of which are affiliated with the major networks. Clanton's crude threat and the DNC's request that the coercive power of the Federal Elections Commission be aimed at Sinclair (a request the FEC turned down) are meant to prevent broadcast of a documentary seen by none of its critics.

Despite not having seen it, the DNC describes the planned Sinclair broadcast as "not actually a news story, editorial or commentary" and thus not entitled to be excepted from FEC regulation. "Stolen Honor" is "electioneering communication" --, i.e. political advertising -- and thus subject to FEC regulation. If the FEC had agreed with the DNC, the federal agency at least theoretically would have had the power to bar the broadcast. Doing so would have sent a calamitously chilling message to every journalist in America.

In other words, Clanton and the DNC wanted to use the FEC to silence political speech they find disagreeable. In the process, they would revive the long-discredited anti-democratic practice of prior restraint of the news media.

Even though the U.S. Supreme Court definitively outlawed it in 1931 when it declared Minnesota's Public Nuisance Act unconstitutional, Clanton and the DNC show there are still people who want to use government to prevent publication of news they don't like. That is wrong, Chief Justice Charles Evans Hughes said in the Minnesota decision, because "the fact that liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official conduct."

Unfortunately, there's a long history of politicians in both parties and their allies in the federal bureaucracy seeking to stifle the news media. And they have several ways to attempt it. In this case, for example, once the FEC had declined the DNC's request, the committee and Clanton's media-busting buddies in the Kerry campaign went to the Federal Communications Commission, which controls broadcast licenses.

In the years before the FCC's Fairness Doctrine was repealed during the Reagan administration, Presidents Kennedy, Johnson, Nixon and Carter routinely exercised FCC power over broadcasters' news decisions. As detailed by former CBS News president Fred Friendly in his book "The Good Guys, the Bad Guys and the First Amendment," the Kennedy and Johnson administrations were especially effective in using the FCC to shut down talk-radio outlets considered by the politicians to be too right-wing. And Nixon's incessant badgering of broadcast news networks for prime time to deliver presidential speeches resulted in his having more national camera-time than presidents Eisenhower, Kennedy and Johnson combined.

The problem is that the FCC retains decisive leverage over broadcasters, which is why one would expect a chorus of protests to be erupting from among professional journalism organizations such as the Radio and Television News Directors Association and the American Society of Newspaper Editors. A future FCC chairman might not be as respectful of the First Amendment as the agency's current head, Michael Powell, who refused to take action against Sinclair.

Amazingly, ASNE declined comment on a television network's plight, and RTNDA merely said "government should not and cannot interfere" with broadcasters' news judgment. RTNDA spoke only after I asked for a statement. Such timidity in the face of so clear a threat to freedom of the press is mute testimony to one of the many consequences of Big Government -- a cowed news media.

Mark Tapscott is director of the Center for Media and Public Policy at The Heritage Foundation (heritage.org).

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