So I woke up this morning to discover dozens of hate mails coming my way, calling me a fascist and communist and everything else. Huh?
Well, I figured it out: turns out that the Daily Caller is going through old Journolist archives, and apparently in one of them there was a discussion of how Fox News was broadcasting patently untrue pro-Republican talking points. The conversation probably veered to what you do about things like this. And at some point I mooted the idea of just not renewing their FCC license. After all, the government has to give the spectrum to somebody: if they want someone to broadcast news, then it shouldn’t be Fox.
But of course as dozens of people have pointed out, Journolist was more like a conversation around a water cooler; it wasn’t a law review article. I raised a question. Then someone got a hold of these things, and hoo boy. Here’s a list of the greatest hits (NSFW):
I just wanted to know if you’re really as stupid as you sounded on the Journalist emails. You do know that Fox News is a CABLE company and that the FCC has no jurisdiction, don’t you? and you graduated from Yale and Harvard? You elitist piece of excrement! Do your students know that you’re a rabid, knee-jerk liberal? I’m glad your emails were made public so that your students see that a retard is teaching them. You disgust me.
Not only have you made our country a better place by becoming a lawyer, you have also generously offered to help eliminate the messy business of politically incorrect points of view being presented. Your idea worked quite well in Germany years ago. Stupid and morally bankrupt people like myself are very lucky to have you to let us know what to think.You, sir, are a danger to this country by your disgustingly uninformed paroxysms regarding anything you disagree with. If my child attended UCLA and was in your class I would urge him to challenge everything you say. Luckily for him he just graduated from KU. I pity a person with such hate consuming his soul.
You commie pig, In November, we win. In January, we will restore the Republic and commie sluts like you will not like it here. You may want to move to the socialist country of your choice. You will be happier.
Take your slut wife with you.
Sigh. Actually, the first correspondent probably had a good point when he pointed out that if in fact Fox, as a cable station, doesn’t need an FCC license, then it’s all moot. Note: that’s why I wrote an e-mail, asking a question.
I did get some that, while strongly critical, didn’t hurl insults, and really wanted to know what I was thinking. Here’s what I wrote back to one of them:
It’s sort of funny to wake up in the morning to a lot of nasty e-mails, so when someone like yourself writes one that ISN’T nasty, I figure I should respond.
I actually don’t remember the exchange very well; as people don’t seem to appreciate, Journolist was more like a conversation than a conspiracy. Kind of like a conversation in a bar, or around a water cooler. If I had to write a law review article every time I sent an e-mail, then it would be different!
Anyway, here’s what I think I was thinking. Remember that the airwaves are public: there’s only a certain amount of spectrum. The government has to decide who gets a license and who doesn’t. As I understand it — and I could be wrong about this — it’s not like publishing a newspaper, where if you can afford the materials, you can publish.
So — when someone applies for an FCC license, the government HAS to decide who gets a license and who doesn’t. If you have limited airwave space, then you have to ration it; again, it’s not like a newspaper. I think it would be legitimate for the FCC to say, “we’re going to allow news channels, not partisan political channels. Fox is essentially a wing of the RNC. Rupert Murdoch has plenty of newspapers, other media vehicles, etc. But we’d really like to have a news channel as opposed to an RNC channel.”
Now, if the government was doing this, but then also allowing a channel that was essentially a wing of the DNC at the same time, then that WOULD be at least illegal (under the administrative procedure act) and probably unconstitutional, although on a mixture of 1st amendment and equal protection grounds.
Clearly, the government can’t pick and choose which channels it wants on purely ideological grounds — that is as you rightly suggest very dangerous. But I think it can choose ideology-neutral criteria for which stations get a license: it can say, “we want news channels, or sports channels, or arts channels, or Home and Garden TV channels (my wife’s favorite), etc.”
I imagine you didn’t like the fairness doctrine — I actually don’t have much recollection of it. But because of the special nature of the airwaves, it wasn’t unconstitutional.
Your other option is either first come/first served, or who pays more, neither of which in my view is any more satisfactory. At least that was my thinking going in. I’m happy to be convinced otherwise.
Again, I appreciate your e-mail.
How would anyone else answer the question? There is a whole body of 1st amendment/telecommunications law that tries to answer it.