Re: XM, Free Speech and The Real Issues

[David Farber <dave () farber net>]

Begin forwarded message:

From: Dan Lynch <dan () lynch com>
Date: May 21, 2007 11:41:55 AM EDT
To: Dave Farber <dave () farber net>
Subject: Re: [IP] XM, Free Speech and The Real Issues

Professor Ezor seems to live in a perfect world where all "injuries" are
"dealt with".  His suggestion that a remedy for the speech hurled  
against
the famous women would be to give them air time to talk about "issues".
That just does not seem like a reasonable response to the insults.  Most
insults are best dealt with with silence, not engaging the offending  
party
in more "debate".  If someone hurls a pile of crap in my face, I do  
not want
to dignify their behavior by drawing more attention to their actions,  
but to
absent myself from their domain.  I know this is a complicated issue,  
but
tit for tat never seems to work.

Dan


On 5/21/07 7:28 AM, "David Farber" <dave () farber net> wrote:

> Begin forwarded message:
>
> From: Jonathan Ezor <jezor () tourolaw edu>
> Date: May 21, 2007 10:21:45 AM EDT
> To: dave () farber net
> Subject: XM, Free Speech and The Real Issues
>
> Dave,
>
> For IP if you wish, an essay I've written as a law professor, XM
> subscriber,
> Opie and Anthony listener and long-time observer of the radio  
> industry.
> {Jonathan}
>
> ---------cut here--------
>
> Free Speech, Not Nice Speech
>
> The latest salvo against free speech was fired when XM Satellite
> Radio, the
> subscription-based broadcaster of the Opie and Anthony show,
> suspended the
> show for 30 days after controversy erupted over an interview with a
> homeless
> person who made sexually explicit and offensive statements about
> Condolezza
> Rice, Laura Bush and Queen Elizabeth.  This suspension followed the
> recent
> firings of Don Imus and midday hosts JV and Elvis by other radio
> companies
> after those broadcasters "crossed the line" with remarks they made.
> No one
> seriously argues that the firings were not within the companies'
> rights.  At
> the same time, these types of actions totally fly in the face of the
> purpose
> and protection of the First Amendment's guarantee of free speech and
> the very
> reason for non-governmental media such as radio.
>
> The First Amendment to the U.S. Constitution is extremely
> straightforward:
> "Congress shall make no law respecting an establishment of  
> religion, or
> prohibiting the free exercise thereof; or abridging the freedom of
> speech, or
> of the press; or the right of the people peaceably to assemble, and to
> petition the Government for a redress of grievances."  The guarantee
> of free
> speech, though, is not a guarantee of safe speech, nor of inoffensive
> speech.
> It is precisely about being able to make statements that challenge the
> government, the majority, the common wisdom; that is why it is
> grouped with
> the rights of religion, the press, assembly and petitioning the
> government.
> Without the First Amendment, our civil rights movement would never
> have had a
> protected voice whether on the Mall in Washington or on the streets
> of Selma.
> Without the First Amendment, we wouldn't have newspapers that expose
> governmental corruption.  Without the First Amendment, opinion pieces
> like
> this one would never exist.
>
> Radio itself is a particularly powerful medium for free speech (even
> when
> regulated for obscene and indecent content by the FCC, as are
> terrestrial
> stations), because it is pure speech, without pictures or video to
> provide
> context (or distraction).  It is also a uniquely opt-in medium;
> programs do
> not impose themselves on unwilling listeners, who have the power to
> change
> the station or turn off the set.  Satellite radio takes the model one
> step
> further, since its listeners actually pay for the privilege of
> receiving the
> programming it offers, without the barriers of FCC content regulation.
> Terrestrial and satellite radio, though, only exist because of the
> right to
> free speech; without this right, all one gets is government
> broadcasting,
> restricted, censored and "safe".
>
> The right of the stations to suspend or fire broadcasters is not a
> constitutional issue.  Private radio companies are businesses, and
> are not
> subject to the same constitutional obligations as are governmental
> entities.
> The broadcasters who work for private stations must follow whatever
> policies
> the stations implement, including limitations on what may be spoken
> on air.
> Terrestrial stations in particular, which risk substantial penalties
> for FCC
> content violations, not only hold their talent to the letter of the
> law, but
> to additional guidelines meant to "build a fence" around FCC rules to
> ensure
> they are not violated even by accident.  Even satellite broadcasters
> must
> consider the interests not only of present and future subscribers  
> but of
> their business partners, advertisers, and shareholders (both Sirius
> and XM
> are publicly traded).
>
> Being permitted to do something, though, does not make it the right
> way to
> go, and the recent pattern of talent firings and suspensions by radio
> companies is extremely likely to rebound negatively on the entire
> industry.
> The actions create a precedent where any time a broadcaster says
> something
> that someone may object to or find offensive, the station must either
> suspend
> or fire the broadcaster or be seen as somehow endorsing what was
> said.  To
> date, the major incidents have involved either sexual or racial
> content, but
> it may not be long before a right-wing talk show host is suspended for
> criticizing liberals, or a progressive host for bashing
> conservatives, or a
> Christian host for decrying atheism, or an atheist for challenging
> religion.
> Anything that someone finds offensive is "fair game" for a  
> suspension or
> firing, if the offensiveness is trumpeted loudly enough.  As long  
> as the
> suspensions are done by the companies rather than the government, the
> Constitution is not being violated.  Nevertheless, when the ability to
> express opinions and even facts may be at risk, that is indeed a free
> speech
> issue.
>
> It has been said that the proper response to speech with which one
> doesn't
> agree is more speech.  The protesters who oppose (and those that
> support)
> these broadcasters understand that point, but apparently the radio
> companies
> do not.  If they did, rather than suspend broadcasters (and thereby
> jeopardize the jobs of engineers, sales executives, technicians and
> others
> working on those shows), the companies would offer free air time to  
> the
> protesters to make their points.  For example, MSNBC and CBS radio
> could have
> replaced Imus' show for a day or more with one in which the Rutgers
> women's
> basketball team got to speak to America and dispute through their own
> conversation any negative implications arising out of Imus' words.
> In the
> case of Opie and Anthony, XM might have given the microphone to Laura
> Bush or
> Condolezza Rice to speak on women's issues, and so forth.
>
> To do so would have not only demonstrated the radio companies'
> support for
> those who had been maligned by the regular hosts, but would have  
> been a
> positive step in the promotion of the principles of free speech and
> expression.  It would have been the essence of "more speech."
> Instead, the
> audience is getting less speech, via the suspension of broadcasters
> doing the
> jobs for which they were in fact hired.  The trend is frightening for
> anyone
> who values the vibrancy of our media.  This wave of suspensions and
> firings
> for otherwise legal speech bodes ill for any broadcaster, whether in
> entertainment, sports or news, who isn't toeing some vague, shifting
> "party
> line." It is also essentially un-American.
>
> Prof. Jonathan I. Ezor
> Assistant Professor of Law and Technology
> Director, Institute for Business, Law and Technology (IBLT)
> Touro Law Center
> 225 Eastview Drive, Central Islip, NY  11722
> Direct: 631-761-7119  Fax: 516-977-3001
> e-mail: jezor () tourolaw edu
>
>
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