SINCLAIR: How about a Constitutional Challenge ?

[Eloriel]

I've thought about this issue for a while now, and have posted about it now and then. Not being a lawyer let alone a Constitutional scholar, I really don't have much foundation here, but I'll present my case anyway. It'd be great if any DU lawyers chimed in.

My premise: The Founding Fathers knew -- and not only wrote about but enshrined it in the Constitution (half of it, the other half was implicit) -- that a well-informed citizenry is essential for democracy to survive. While he wasn't a Founding Father, having come along nearly a century later, Abraham Lincoln had this to say:

I am a firm believer in the people. If given the truth, they can be depended upon to meet any national crisis. The great point is to bring them the real facts. -- Abraham Lincoln

Now, the First Amendment guarantees a "free" press -- free from government censorship, etc., but it doesn't enshrine the OTHER half of the deal: that the press has its obligations too, namely to serve the people and democracy itself, by giving the citizenry "the real facts," as Lincoln put it. The Founders didn't make the press eternally "free" so it could serve as a political arm (propaganda tool) for any party, or the interests of a nascent fascist government.

From this thread:
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=104x2512870

about Sinclair's activities in the past:
The company’s overt involvement in partisan politics is not new. Back in
September 2001, Sinclair required affiliates to broadcast messages
conveying their full support for the Bush administration. In July 2003,
it refused to let stations air a DNC ad countering Bush’s State of the
Union contention that Saddam Hussein tried to buy uranium from Niger. It
aired purportedly legitimate news stories that it was later revealed
were actually written, produced, and paid for by the Bush
administration. Last April, Sinclair ordered its ABC affiliates not to
air Nightline’s tribute to U.S soldiers killed in Iraq lest it quell
public enthusiasm for the protracted occupation of that country.

---------

I had thought that such a court challenge based on the Constitution would have to be a fact-laden nightmare (to bring the suit), perhaps picking one large media conglomerate and showing hundrefds of its various "failings" but Sinclair might present a more streamlined case.

What does anyone think?

[The Sushi Bandit]

1. I'm not a lawer ... but SCREW the BASTARDS!

Take away their license to use the public airways

[Carla in Ca]

7. That would be nice, but boycotting & emailing

seem to be doing the trick.

Here is a 'top 10' list, per boycottsbg.com

<http://www.boycottsbg.com/advertisers/TopTenAdvertisers.aspx>

[Zensea]

2. Doubt it can be challenged on those terms

Press is not only journalism, but also the printing of fiction.
Freedom of press does not mean that the press has to print fact.
Who would determine the facts anyhow?
Too much of a danger of a slipery slope.

I think Sinclair can probably be challenged on the special case of being part of the public airwaves and having to abide by terms of the grant of air space given them but not regarding the press. There is nothing in the constitution that says the press has to be balanced & for good reason.

Airwaves are not the same as "press" however. If airwaves had the same freedom as press then pornography could be legally broadcast, since it can be legally published.

[Eloriel]

11. Good points

Not sure I'm ready to buy them all, wholecloth, :evilgrin:


but good points nonetheless. Thanks.

[Qutzupalotl]

16. Disagree on a few points

>Airwaves are not the same as "press" however. If airwaves had the same freedom as press then pornography could be legally broadcast, since it can be legally published.

Broadcasting has analogous freedoms to print. Porn can be printed and sold to adults, or videotaped and sold to adults, or broadcast to adults. There are some differences in broadcast porn content. Don't ask me how I know.

>There is nothing in the constitution that says the press has to be balanced & for good reason.

True, but there are laws against slander and for equal time, even though the fairness doctrine was eliminated.

I think we agree that Sinclair's planned actions are blatantly partisan. I'd say they are worthy of having their broadcast license revoked. They are not serving the public interest (or shareholder interest, for that matter).

[sweetheart]

3. How about a challenge

That an artificial electronic media organization is subverting the
first amendment to individual free speech by issuing a pervasive
propaganda broadcast that drowns out individual free speech.
This is not the "press". This is something the framers had not
conceived of, this television.

Also, on the grounds of the 9th amendment, that the natural law right
not to be snowed in by propaganda is being subverted.

By the 10th amendment as well, the individual states are being denied
the right to choose whether to allow this subversion of their
electoral process.

6 weeks before a stock market report, companies must go through a
quiet period where they issue no "announcements" that could overturn
the balance of the markets... are you telling me that we police our
markets better than our democracy?

I think that an intelligent group of constitutional lawyers could
put together a comprehensive case.

In addition, there is someone in the movie, who objects to having
his viet nam service slandered (a recent DU thread). On the grounds
of liabel, can the broadcast be shut down?

Since sinclair is reporting earnings on nov 4, can it be said that
they are violating the quiet period by issuing something that is
substantive to its stock price, given that the senior management
clearly stands to gain from a bush win?... and stock price
manipulation by being his pet election manipulation org?

[donkeyotay]

4. It does seem that Sinclair could make a streamlined case

At the time a free press was included in the Constitution, no one was concerned about monopoly of the press. The late, great love affair with so-called free market has been a disaster in more ways than one. But one result from this simplistic thinking is that we don't have a free press; we have a privatized press. And we no longer have regulatory agencies that even believe in regulation! (They are being privatized too, with the logical end point being the privatization of government, which is an oxymoron.) To believe in a market but not to believe in regulation is to confuse the era of the Robber Barron with the good old days. Where did they think regulation came from anyway?

In the age of television, you can't have a free press without regulation.

[Zensea]

5. Remember Mencken

By that logic you could never have a free press without regulation.
As Mencken said "there's freedom of the press for any one who can afford one" (I'm paraphrasing)

Television is not the "press"
That's why it can be regulated.

"You can't have a free press without regulation" sounds downright Orwellian to me.

The whole point of freedom of press in the Bill of Rights is to keep the Government out of the regulation of the press.

[donkeyotay]

6. Television, that's what we're talking about.

"In the age of television, you can't have a free press without regulation."

In this context the "free press" being talked about is television.

[Zensea]

9. Your sentence structure needs work (just my opinion)

Television is not the press, in my opinion.
Your sentence implies it is.
It also implies regulating the PRESS.

The government should not regulate the press, period.
That's the first amendment.

If you disagree, then you disagree with the first amendment.

[donkeyotay]

13. My "Orwellian" thinking and sentence structure has an important point

Letting the highest bidder purchase all the goods or control a market is not freedom, it's monopoly.

When the Constitution was written, darned near anyone could write a pamphlet, whereas money now restricts those with the ability to reach 295 million people. If one person were to monopolize all the available networks (and newspapers, if you insist) what you would be left with is not freedom.

[Zensea]

15. Oh I agree with that.

I'm just saying that regulating television does not come under the first amendment & that it is very important to be careful about first amendment issues.

Anyone can still write a pamphlet.

I'm in comeplete agreement about monopoly undercutting freedom.
Adam Smith did not mean "monopoly capitalism" when he was thinking of capitalism and did not take it into account either.

Monopolies need to be regulated by the government, I agree.

But I don't think they can be through the aegis of the First Amendment & I'd be willing to bet any attempt to do so would get thrown out of court.

There are plenty of other ways to regulate television without undercutting the First Amendment.

[sweetheart]

8. so where does that leave us with this legal appeal?

If television and nationwide monoplies of instantaneious broadcast
media are not "press" then they are not enumerated.

This then puts them under the 9th amendment. No matter the 200
years old rules, clearly those framers did not intend the republic
to be subverted by a few corporate hacks.

I think a legal challenge is in order. Is the state of legal-america
so weak that the constitution is no longer in force?

(more on the 9th amendment)
http://www.gpoaccess.gov/constitution/html/amdt9.html

[Zensea]

10. Yes

I think there is probably a constitutional challenge, but not under the first amendment.

[Eloriel]

14. Okay, go for whatever part you want

I'm with ya. :evilgrin:

Just as long as it gets done.

[Eloriel]

12. Television news most certainly IS the press

and I think that's very well established just about everywhere you look.

I remember vividly the heads of networks testifying before Congress about their election night coverage, voluntarily, and making a big deal about that it was voluntary and that everyone had to be very careful here vis a vis First Amendment and all that.

[FellowAmerican]

17. Remember . . .

Whatever challenges we decide to make, will be made against us too. If we fight to keep things off the air that we don't like, they will do the same thing to us. Don't cut off your nose to spite your face. For 99% of the people in this country, their minds are made up on whom they will vote for. This program will do nothing to change their minds. Do you really believe that there are that many undecideds out there??

If you push for a legal challenge, and it is perceived as political censor, it will affect all of us. You will open the perverbal can of worms.

[sweetheart]

19. Whats wrong with a quiet period?

I would support a total ban on political advertizing 4 weeks before
an election. This would leave people to make up thier own minds,
requesting information if needed. It would take this incredible
waste of millions of dollars that only amounts to people screaming
so much so, that the whole media-world turns in to a screaming
whirlpool of rude spin, paid for by us all, and, in the end, a waste.

Cannot we simply allocate time slots and equal time. WE have all
donated cash towards winning this electoin, cash that we could
better use ourselves in our lives, given current bush economics.
What perversion says that we have become a plutocracy with those
with money having a louder voice in our republic?

I really do think we need to do something, as this is just a waste,
and having seen elections in foreign coutnries where a tiny fraction
is spent comparatively, there is much more electoral integrity.

Welcome to DU! :party:

[Eloriel]

21. You are WAY off point

I don't want to influence an election, or promote a party, I want REAL JOURNALISM, no matter whose ass it bites.
I want the TRUTH, dammit. Facts. I want journalists to let their fingers do the walking through google and come up with some TRUTH, FACTS, BACKGROUND, HISTORY, CONTEXT, etc. -- not in COMMENTARY presentations, but in factual, real-journalism articles (the ones where the reporters don't inject their lousy opinions or observations).

I don't want political advantage, I want a politically neutral playing field except for the ads and commercials.

Get it? THis isn't about partisanship. It isn't even about voting, or ANY election or even George Bush. It's about the future of our democracy. Nothing less, nothing more.

[sweetheart]

18. lets look at 2 aspects

There is the reporting and preparation of content, which could be
called "the press" and then the contracts and electronic distribtion
systems that transmit content to various stations around the country
to be shown on public broadcast.

When the latter element is melded in, it is wholly different than
anthing the framers would have called "press" as newspapers were
the only concept of their day, and they came from physical
distribution systems, centrallized around the printer, and limited
by transport.

It is this telecommunications across state borders area where think
their case is weakest. that is not "press". Heck. I'm no lawyer,
does anyone with a legal background know the distinction?

[Eloriel]

22. I think you needn't look for a distinction, personally

The news departments, and whole channels on cable, are absolutely "the press."

Again, my point is that they have unparalleled freedom by virtue of the First Amendment, but that the Founders didn't give them that freedom out of the goodness of their hearts -- they expected something in return, and that is for them to provide the people with enough information to make informed choices.

That can't happen when the truth and the facts are readily available -- GLARINGLY available -- and yet someone like George Bush and Dick Cheney get away with implying a connection between 9-11 and Iraq repeatedly while NEVER being called on it by "the press," and this occurs to such an egregious extent that to this date, 40% of Americans STILL believe there's a connection. That is just ONE example.

They press didn't do their work, and still aren't doing their work. They have a responsibility to (a) TRY to find out what the facts are, (b) do some legwork (or fingerwork) in service of that responsibility and (c) present their findings to the public.

[djg21]

20. The Constitution doesn't limit conduct

of private entities. Rather, it circumscribes the powers of the Federal government, and throught the 14th Amendment, the conduct of the several States. There is no basis to challenge the conduct of Sinclair on Constitutional grounds, at least that I can think of.

Moreover, any challenge on the basis of misuse of Sinclair's broacaster's license likely would need to be brought as an administrative proceeding by the FCC. Powell has already said he wouldn't be doing that, and Agencies are afforded a great deal of discretion in making such decisions.

IMO, the only way a lawsuit will be brought here is if the minority shareholders assert a claim against the directors, officers and majority shareholders on the basis of breach of fiduciary duty, and perhaps under the security acts, based on the dimunition in the value of Sinclair stock resulting from the political fallout, i.e., the selloff of stick and an economic penaly imposed on Sinclair and its advertisers in the form of a boycott.

[Eloriel]

23. Pooh. I don't like your answer.

"The Constitution doesn't limit conduct"
of private entities. Rather, it circumscribes the powers of the Federal government, and throught the 14th Amendment, the conduct of the several States. There is no basis to challenge the conduct of Sinclair on Constitutional grounds, at least that I can think of.



But I can see that you're probably right.

But I don't have to LIKE it. :evilgrin:

Thanks (I think).

[BeFree]

24. Yer right

The constitution limits only the government. It is meant to keep the feds and states from establishing any constraints upon a free press, or the people, unless they so desire and pass an amendment.

I, for one, am glad to see Sinclair get so radical. That radicallity will draw corporate blood from their offices and that blood will be used to reform other corporate desires of other likewise anti-American corporations.

The long knives are out and Sinclair will bleed greenbacks for evermore.

[Eloriel]

25. Just so you know, and I realize I didn't make it clear in my OP

This isn't so much about Sinclair, but about the whole profession. Sinclair would just have been a convenient vehicle.

[BeFree]

28. I got ya, Eloriel

Sinclair is the vehicle. You have the right target, just using the wrong gun.

If we can do this, this castration of Sinclair, by virtue of cutting their green-line so that it bleeds over all the networks, the resulting vehicle smash-up will make it on the nightly news as no car wreck ever has.

If we can do this. Sinclair IS in our sights.

[Zensea]

26. which is already happening! -- Wall Street is in the loop

http://mediamatters.org/items/200410190004

(WASHINGTON, DC, October 19, 2004) -
At 10 a.m. today, a letter from Glickenhaus & Co., a Wall Street firm with clients who hold stock in Sinclair, was delivered to the CEO of Sinclair, David D. Smith, and the company's board of directors, demanding that they immediately "provide those with views opposed to the allegations in the film an equal opportunity to respond." If an answer to Glickenhaus' demand is not received by close of business today, Tuesday October 19, additional remedies, including an injunction in a court of law prior to the first scheduled airing of Stolen Honor October 21, may be sought.

"Our mission is to thwart conservative misinformation in the media and ensure that the media offer the American public fair and balanced access to news and information," explained MMFA President and CEO David Brock. "We determined a stockholder effort is the strongest remaining course of action to force Sinclair to reconsider its decision to air Stolen Honor."

Glickenhaus & Co., a Wall Street investment firm holding 6,100 shares of Sinclair stock, is taking action against Sinclair on behalf of its clients holding shares in Sinclair. General partner Jim Glickenhaus mounted the action based on Sinclair's CEO and directors having a financial obligation to shareholders.

"We are not partisan. We are investors," Glickenhaus explained today. "Sinclair's decision has caused harm to the value of our investment in Sinclair. We believe Sinclair must give equal time to an opposing point of view. Otherwise the company is placing its future and the value of our investment in jeopardy, by putting the renewal of its FCC licenses at risk, alienating local advertisers, and opening itself up to libel suits against the company."

[djg21]

27. I'd also give odds that . . .

Sinclair insiders were selling their stock short. There seems be some suggestion by the media that there was a sell-off by Sinclair insiders before the edict came down from Sinclair to air the propaganda. If the SEC wasn't toothless, maybe they'd look into.

[BeFree]

29. Whoop! There it is..

Shareholder value is being injured due to personal decisions inflicting harm on bottom line profits.

It's their bloody green-line which will be severed by our boycotts and protestations.

Capitalism's finest hour comes when decisions are rewarded their due. In Sinclair's case, their decision to become ensnared in it's own personal, business foolish, politically guided programming will be duly rewarded.

The rest of the corpo-media will take notice of how we carve Sinclair into relative oblivion.

[Zensea]

30. someone has posted this in Media

here's the link to the thread

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=109x14859