Issywise:
You get to my core point. There are few gatekeepers to the national marketplace of ideas. The growing ethic they operate on that they can present spun news as a proprietorial service to one party or ideology is a cancer on the marketplace of ideas. Countervailing spin on hard news is hardly news at all. It is replication of one bad development into two or three or all at some point.
Murdock made a economic decision that twisting to news to pander to some consumers would provide him the optimal return on capital. The ethic is not public service presentation of what voters need to know, but titillating viewers based on their ideological demographics. It is market science displacing democratic ethos.
Even accepting this as true, what's the remedy? Forcing Murdoch to carry opposing viewpoints on his network? Or a law that only news stations that provide balanced news, in the opinion of a bureuacrat, should be allowed to broadcast? If I'm imagining bogeymen here, tell me how you would address this issue in an effective way.
Issywise:
I'm not arguing that courts should get back in the defamation business for political speech. I was just pointing out that they used to serve as a check on falsity: a check that has been removed. We now John Stewart regularly makes fun of Fox News for editing their disfavored political figures' speeches to create the impression that they were saying the reverse of what they actually did say.
It is purposeful deceit, for which there is no remedy available today. Please don't tell me Stewart is a remedy because Fox News viewers aren't watching Stewart and Stewarts aren't watching Fox News. In a healthy democratic marketplace of ideas, presentation of hard news would not be reduced to deterministic fantasy. Fox News viewers are being misled by Fox, on purpose. That network has a thesis (as does MSNBC, I understand) and it edits news content to make that thesis regardless of the truth.
Should there not be a remedy for that? To me the answer would seem to be corrective speech--more speech. Before you go off on the heavy hand of the government argument, read up on how few enforcements of the Fairness Doctrine ever had to be applied. The media policed itself, assuming ethics on which they complied to avoid the embarrassment of having someone like Bill O'Reilly sitting for two minutes on his own show while doctor he defamed to death got two minutes to state the nonsensationalized sober facts.
I'd actually love to read about how the Fairness Doctrine worked in practice. Because my understanding was that broadcasters basically shied away from politicized content for fear of running afoul of the doctrine, which is at least as likely an explanation for why there weren't many enforcement actions under the Fairness Doctrine. What sources do you suggest?
As for the Doctrine itself, to the extent it ever had a justification, that justification was based upon the scarcity of access to television broadcasts -- basically three stations, with expensive barriers to entry. This was the main distinction between tv and print journalism, and nothing even approaching the Fairness Doctrine has ever been found to be constitutional with respect to newspapers. Given the proliferation of television stations, via cable, I have questions as to whether the rationale even applies. Moreover, do you really think making equal time the law is going to have much of an effect? People watch FoxNews and MSNBC because they like getting reinforcement of what they already believe. If Hannity is going to be followed by a 15 minute rebuttal from Nancy Pelosi, people are going to change the channel.
Finally, if O'Reilly defamed the doctor -- that is, stated facts that were false -- the doctor has a legal remedy for damages.
Issywise:
As for the exceptions the court recognizes to free speech, they generally fall into the category of clear and imminent threats to public safety. Generalized social ills have never been recognized as exceptions to free speech, for should they be.
You state only half the law, the actual standard is narrowly tailored to serve a compelling public interest, with no direct regulation of content.
I think a healthy marketplace of ideas is a compelling public interest.
You accurately state the law, but until recently, the only exceptions that met this test were as I described them. Let's agree that a healthy marketplace of ideas is a compelling interest. You still have to satisfy the narrowly tailored part.
Issywise:
The principle is that an informed public makes the best choices. The principle is also that video media is potent in changing public behavior--built on 80 years of marketing science. The principle is that experience has shown that the people acting on the same values you state (and may embrace--do you?) above would use that potency to mislead the public.
Where does my principle end? What are you assuming for me? Are you making a slippery slope argument out of these facts?
The present rule protects against last minute deceitful speech and seeks to provide all candidates with an opportunity to present the public with responsive information. Isn't that enough?
For all the rest of the campaign, all the candidates can say what they want. Only when there is not time left for response is the rule justified. Where is the slippery slope you accuse me of recklessly wandering out onto?
What if, on the eve of an eelction, the media finds out a candidate was arrested for a DUI five years previously? Should they not be able to publish the story because the candidate won't have a chance to respond?
What the hell does that have to do with anything? Of course they'd report it. The rule does not reach to the news media. No wonder you take such an extreme position. You imagine monsters in every closet.
How do you make these distinctions? Who decides who is bona fide news media free to report on a breaking story, with the inherent risk that part of the story will turn out to be untrue?
And the rule doesn't prohibit last minute "deceptive" speech; it can't possibly do so. It prohibits all last minute speech. How can you possibly conclude that doing so is consistent with the First Amendment?
I also remain shocked that you can write something like this in one breath and in the next take umbridge at someone making the inference that you view the fostering of an open and fair marketplace of ideas the responsibility of the government.
Issywise:
Campaign finance reform is one of those things that sounds great in practice, but simply is not consistent with the First Amendment.
I wonder if you understand how fantastic that conclusionary statement is? Do tell: why is it that you disagree with the Supreme Court? Do you care to articulate a philosophy behind all your conclusory negatives? Can you explain your perspective the way you are challenging me to explain mine? Is it because government is evil and because the founders, even as they founded the government, thought the government was an evil thing? Is that the center of your philosophy?
Scores of millions of Americans express that negativism as their political philosophy, even though they are hypocritical to their bones about it--accepting all the entitlements and benefits of a political economy, the regulatory and the welfare states, even as they curse government as an evil.
If you want I don't know whether the Founders viewed government as evil, and I don't. The Founders' belief, and it is one I share, is that people enjoy power and that, once given it, they will seek to hold onto it. If government is invited to regulate political speech, there is too great a risk that it will be used to protect the interests of the currently-entrenched power structure.
Ah, the hypocrisy argument -- it wouldn't be a Slate thread without it. Why is it hypocritical to prefer a limited government but remain living where you do when you lose the political battle to keep it limited. What's a principled person to do? Commit suicide? Take up arms? Emigrate?
Issywise:
"Campaign finance reform is one of those things that sounds great in practice, but simply is not consistent with the First Amendment." That is just too vast as pontification to go unchallenged.
I tell you what, let's save time and just each make up a list conclusory statements of what we believe and exchange those unsupported assertions and go watch Matlock. Democracy can run that way, why shouldn't we?
Don't you think our posts are long enough without being able to use some shorthand? When I say I object to campaign finance reform, here's what I mean: I oppose regulations that impose a prior restrain on any person or group's ability to speak, through whatever medium they choose and however close to the election they choose, regarding politicians or issues. Are there negative consequences to this? Of course. But on the balance, I think our republic does better with unfettered free speech. Because one of the best ways to get my viewpoint heard is to contribute money to those groups or individuals who publicly advocate for that viewpoint, I object to restrictions on individuals' and entities' ability to donate money to groups, politicians and parties of their choosing. I don't give a flip what the Supreme Court has to say about it. They've been wrong before and will be again.
Issywise:
As for the "money isn't speech" argument, that's just silly. Effective communication requires money.
It doesn't have to. We could prohibit all paid political adversement and require the networks minting money from the public airways to set aside ample time for unpaid political presentations and improve the marketplace of ideas manifold. Most of the corrupting money raised for campaigns are dumped into television commercials designed not to inform but to emotionally manipulate.
By breaking the "silly" connection between speech and money we could provide much more real information to the voting public and free our elected representatives from their servitude to big buck campaign donors. Who can believe that Obama hasn't sold his ass whole to get the $730 million that bought him his office?
Is that really what you propose? Banning all paid political advertisements? "Ample time for all" sounds great, but given that the amount of time in a day is finite, you're inviting the government to be the gatekeeper. Under your proposal, you'll have to answer each of these questions: How much time is ample? (Let's say we're generous and devote two hours of prime time progamming each night). How long does each speaker get? (We want to give candidates time to really delve into the issues, so let's give them each 30 minutes?) That makes four slots. Who decides who gets them? Who decides who gets the last word? What if the person who goes last says something unfair or false?
Maybe you'd address this the same way the public financing system and presidential debate commission does -- make a party demonstrate a certain level of support before they have access to the system. Say goodbye to any new voices in politics -- you can't get support if you are locked out of the primary method by which people follow politics. Access to private money gives new and initially unpopular ideas the ability to be heard via the mass media.
Issywise:
Like I said, you jumped off a cliff howling insults at me with that argument.
Don't be so sensitive. No one insulted you.
Bullshit. Reducing my argument to free speech as a government program and then dismissing it was insult. Pay attention and maybe you'll notice when you both missing the point and demonizing your correspondent.
I'm not trying to demonize you. You're clear and reasonable in your writing and seem to recognize that the fact that I take the positions I do doesn't make me a toad fucker, to steal another poster's slur. But this is the third lengthy post you've written on this issue, and I've tried to read each one closely. I cannot avoid the conclusion that you envision an active government approach in regulating the market of political speech: you talk about the ubiquity of misleading and slanted news and how dangerous it is, and then talk about the founder's purported view that ensuring a healthy marketplace of ideas was part of the blessings of liberty that the constitution is supposed to secure. What other conclusion am I supposed to draw here? That doesn't make you a bad person; it just makes you someone I disagree with.
Issywise:
Also, I'd posit that the method with which we are communicating with each other is the greatest tool of free speech since the printing press, and possibly ever. (And not surprisingly, governments around the world, including our own, have shown a keen interest in regulating it).
What interest has our government shown in regulating content on the internet? That, I believe, is an urban legend that appeals to people of a certain anti-government ilk. Hell, there is enough real stuff to dislike, why pass on myths.
The idea that sites like this are "the greatest tool for free speech since the printing press" is, sadly mistaken. Exactly two readers are likely to read our exchange. Meanwhile, that guy on MSNBC who used to be a sportscaster will speak to hundreds of thousands or millions tonight. He'll sensationalize and emotionally provoke his viewers, but he will not provide in depth content.
No, our government is not as aggressive as others in trying to regulate the internet. But they haven't been entirely hands-off, either. See Reno v. ACLU. And you're right that no one else is likely to read our little exchange here. But via the internet, I have the ability to reach every other person on the planet who has access to an unfiltered computer. Whether they choose to read it is another matter.
Look, I think we share a disdain and disappointment at the current level of political discourse in America. But rights have negative consequences, too. Due process means that we have to let some obviously guilty criminals go free. Universal sufferage means that some pretty stupid and uninformed people have just as much of a say in our governance as the smartest and wisest among us. Free speech means that we have to put up with stupid, ill-informed, misleading and mean-spirited discourse.
