Government Control of the News



Most of us are astonished and right-fully up in arms over revelations of government spying on our private conversations, and especially its potential for abuse. The National Security Agency (NSA) defends its secret programs collecting our phone records and accessing Internet servers for our e-mail as essential to protect us from terrorist attacks. With the tragic failure to prevent 9/11 forever imbedded in the public psyche, there is a tendency to be resigned to this intrusion of our privacy. We are promised by the administration that no one is listening to our phone calls or reading our e-mail. Yet there are reasons for concern.

“Basically, we’re told that it’s in our best interest to blindly trust the government with our personal communications because it knows best,” says Cory B. Dunham, former VP and general council at NBC. “Maybe I could buy that if I hadn’t spent twenty-five years as head of the NBC legal department, resisting government subpoenas and censorship dictating broadcast news coverage.” Dunham cites the so-called Fairness Doctrine that enabled the Federal Communications Commission (FCC), often at the direction of the incumbent Presidents and administrations of both parties, to dictate suppression of certain news subjects and influence coverage in a way they found acceptable to their particular philosophy or agenda. The threat of nonrenewal of the network and station broadcast licenses was an overpowering incentive for them to comply.

Enacted in the early days of postwar television when there were only two TV networks, it had the laudable purpose of insuring that public broadcast reporting of the news would be balanced. As network television expanded its reach, the unintended results were quite different. The doctrine became a tool in government hands for controlling television, resulting in a stifling of the news and a chilling of free speech — in effect, government censorship!

The broadcast of controversial issues and contrasting views was, and continues to be greatly inhibited through the FCC’s intimidation of the networks. One experienced broadcaster described the possible penalties for government-perceived misconduct of broadcast stations as so draconian and sometimes unpredictable that the commission was able to regulate with a “raised eyebrow.” The slightest complaint over fairness could trigger an investigation. Networks and station owners would then have to retain lawyers and spend inordinate amounts of time and money defending themselves, often against frivolous accusations. As a result, broadcasters simply adopted a policy of avoiding any controversial subject.

Government interference with the news was particularly prevalent during the Nixon presidency. At one point the three networks were warned by the FCC that if they did not shape up their coverage of Nixon to meet the views of his administration, they were to be held “fully accountable…at license renewal time.”

Finally, an investigation of the Fairness Doctrine determined that it was counter-productive by limiting access to important news, possibly in violation of the First Amendment and was too often used by an incumbent President to stifle criticism and make sure people only heard what he wanted them to hear. In 1987 the FCC itself revoked the doctrine, and it was confirmed by the federal circuit court.

This and much more is contained in Dunham’s book Government Control of News: a Constitutional Challenge. His experience at the forefront of the battle for unconstrained news broadcast is especially relevant today, with invasion of privacy a foremost political issue and the Obama administration’s subversion of the First Amendment.

The outlook is not encouraging. The President appointed friend and fellow law professor Cass Sunstein the White House Chief of Information and Regulatory Affairs. Sunstein has recommended that government administrations should use their regulatory powers to take over news reports and use them to gain political and social objectives; he has insisted the First Amendment be revised; and even urged Congress and government agencies to decide constitutional free-speech cases rather than the Supreme Court, which would play only a secondary role. Sunstein has since been appointed to monitor the NSA for invasion of privacy, leaving one to wonder just how much protection he will provide.

Equally disturbing, the chairman of the FCC is urging a return to the Fairness Doctrine under a new name: Localism with an emphasis on “Balance” and “Diversity.” Dunham believes its true objective and end result is guaranteed to be no different than its discredited predecessor.

An especially frightening element of the NSA’s intelligence gathering program is the secret court that decides whether the release of certain information compromises national security. Recently the government issued secret subpoenas seizing the phone numbers of the news sources of twenty Associated Press journalists, effectively shutting down these sources. If their cases go to this court, only the government’s prosecutor and its witnesses are heard from, there is no cross-examination and opposing council is not permitted to attend. We thought this kind of information control happens only in dictatorships.

The administration claims dozens of attacks have been thwarted by access to NSA’s intercepts of Internet and phone records. But according to the New York Times (August 1, 2013), the chairman of the Senate Judiciary Committee says he saw that list and not dozens, not even several attacks, were thwarted.

However, the threat of terrorist attacks on American soil has steadily increased, and for our protection some draconian measures may be called for. Still the Obama administration has brought more investigations to stop leaks than all the Presidents in U.S. history combined, lately to little avail. Even without a Fairness or a similar doctrine, the administration’s control of the news persists through indiscriminate subpoenas against print and broadcast journalists.  

The FCC and the Fairness Doctrine have not been the sole means of censoring the press. During the George W. Bush administration members of Congress had attempted to defund public broadcasting, and conservatives like Mike Huckabee, Newt Gingrich and Sarah Palin have continued to call for defunding. Yet, year after year the Roper Poll has found public television to be the most trusted institution in the nation, and public radio not far behind; both ranked much higher than cable and commercial network newscasts—and Congress—in public trust among every age group, ethnicity, income, and education.

Perhaps commercial broadcast, if released from the threat of government de-licensing, would earn this kind of trust as well.  

In 2010 then Secretary of State Hillary Clinton declared, “A free press is essential to empowered citizenry, government accountability and responsible economic development. Wherever independent media is under threat, accountable governance and human freedom are undermined.”

 

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