In September’s "Memo to Clients", our readers were treated to an extensive analysis of the Presidential candidates’ positions on communications issues. Jeff Gee concluded that Senator McCain’s and Senator Obama’s views are – to the extent they have been stated – rather similar on matters affecting the broadcast and telecommunications industries (their opposing viewpoints on media ownership being the glaring exception).
We didn’t examine the views of the Vice Presidential candidates. After all, there really isn’t much information out there from which we might form any conclusions about the likely media policies of either Senator Biden or Governor Palin. Nevertheless, a recent statement made by Palin has caused us to ponder her overall agenda for the FCC and the communications industry.
While being interviewed by Chris Plante on Washington, D.C. radio station WMAL, Palin made the following statement regarding media coverage of her strong statements about Obama’s past associations.
If [the media] convince enough voters that that is negative campaigning, for me to call Barack Obama out on his associations, then I don’t know what the future of our country would be in terms of First Amendment rights and our ability to ask questions without fear of attacks by the mainstream media.
Hold on; wait a minute. ‘First Amendment rights’? What’s she talking about? As just about any first-year law student understands – and many others as well (and here’s a shout out to the undergraduate students in Comm 475 – Journalism Law at George Mason University – you get no extra credit on the exams being graded this weekend even if you’re reading this blog) – the First Amendment is directed against the Government, not the media.
(Quick refresher: The First Amendment provides in relevant part that “CONGRESS shall make no law . . . abridging the freedom of speech, or of the press” (emphasis added). While the First Amendment clearly applies to all government entities and not just Congress, private individuals or entities, including “the media”, still are not limited in any way by the First Amendment.)
So when Governor Palin suggests that her dust-ups with the media might somehow affect our “First Amendment rights” in the future, it’s worth taking a second look here. It’s probably too big a stretch to suggest that, as Vice President, Palin would seek to restrict the rights of freedom of speech and the press in any way. But it does make us wonder whether she might think it either necessary or appropriate to try to prevent, or at least discourage, similar “attacks” by the “mainstream media” in the future.
Short of a repeal of the First Amendment – and we obviously don’t think that that’s even conceivable, much less practically likely – there are precious few ways in which the Federal government might attempt to soften the blows delivered by “the media”, particularly during political campaigns. Instituting further changes to the media ownership rules provides no obvious change. It would be virtually impossible to make the necessary amendments to the political broadcasting rules to consider “attacks” in the context of news or editorial broadcasting to be a use which triggers equal time.
So perhaps the most obvious of those alternatives would be a resurrection of the Fairness Doctrine. But the Fairness Doctrine was mustered out of service more than 20 years ago, and it is hard to imagine why it should be returned to active duty now. Still, in light of Palin’s expressed concerns about the “future of our county . . . in terms of First Amendment rights”, we might all want to keep an eye on this should Palin wake up on November 5 to find herself in a position to influence Federal communications policy.
(We note that any effort by Republicans to bring the Fairness Doctrine back would seem ironic in view of the speculation by a number of conservative commentators that an Obama Administration, with the support of a Democratic-controlled Congress and FCC, might seek to re-impose the Fairness Doctrine, supposedly as an antidote against conservative talk radio.)