As serious as that is, it pales in comparison with the "original intent" of those creating the American system of broadcast regulation. I'm not a supporter of knee-jerk "original intent" interpretations of the Constitution by some Supreme Court Justices. But since many conservatives are "originalists," presumably including some supporting this Sinclair power grab, it seemed only fair to measure Sinclair's station ownership and performance against the regulatory intentions of those creating our first Radio Acts.
(1) The first document, below, is an op ed column in The Gazette (as published). (2) Below it is the text submitted (that needed to be edited for space). (3) Below that is a column appearing in The Gazette on the same day (and page) written by the general manager of the local (Cedar Rapids, Iowa) Sinclair station. (4) At the bottom of the page are samples of emails commenting on the column. (Usually, and in this case, I do not engage in prolonged exchanges with those criticizing a column, in the belief that (a) visitors to the blog are fully capable of coming to their own judgments, and (b) since I've had my say, those who wish to provide a civil response should be granted as much.) -- N.J.
Nicholas Johnson
The Gazette, April 14, 2018, p. A6
To put this power grab in context, there’s a useful lesson from Supreme Court justices’ interpretation of the Constitution – Antonin Scalia, Neil Gorsuch, and Hugo Black.
It’s called “textualism,” or “originalism.” Originalists believe judges can’t say a word “means just what I choose it to mean” – what it has come to mean, or what they wish it meant. A word means what those who wrote it meant by it, at the time they wrote it.
Suppose we apply “originalism” to Sinclair. What was the intent of those drafting laws regulating broadcasters?
New technology leaves us struggling for vocabulary, let alone understanding. Automobiles were “horseless carriages;” radio was“wireless” telegraphy.
Given the mystery and miracle of 1920s radio, it’s remarkable Herbert Hoover (then Commerce Secretary) could see radio’s “ability . . . to furnish entertainment, instruction, widening vision of national problems and national events.” Even U.S. broadcasters, agreed with Hoover that, “it is inconceivable that we should allow so great a possibility for service to be drowned in advertising chatter.”
The Radio Act permitted “the use of such channels, but not the ownership thereof . . . for limited periods of time, under licenses [which shall not] be construed to create any right, beyond the terms, conditions, and periods of the license.” The standard for granting and renewing licenses was “the public interest.”
In 1932 a federal appellate court upheld the Commission’s denial of renewal for a broadcaster who regularly defamed government, officials, labor, and various religions. If broadcasters are permitted to “inspire political distrust and civic discord,” it wrote, radio “will become a scourge.”
Airtime for one candidate required “equal opportunity” for opponents. Personal attacks generated opportunity to reply. A “fairness doctrine” didn’t control content but demanded treatment of public issues and presentation of a range of views.
As early as 1926, when Congress was debating the Radio Act, Texas Congressman Luther Johnson warned, “American thought and American politics will be largely at the mercy of those who operate these stations.” If “a single selfish group is permitted to . . . dominate these broadcasting stations . . . woe be to those who dare to differ with them. It will be impossible to compete with them in reaching the ears of the American people.”
As late as 1970 no licensee could operate more than one AM, FM, and TV in one market. The national limit was seven AM, seven FM, and five VHF TV stations. Rules prohibited ownership combining stations and newspapers.
With broadcasters’ pressure on Congress and the FCC, regulations change. Original intent does not. Were it followed today, Sinclair would not have the licenses it does, let alone more. It would not dictate “local” commentaries to stations legally responsible for their content. And it could not be a propagandist for a single official, candidate, or ideology.
• Nicholas Johnson served as commissioner on the Federal Communications Commission from 1966-1973. Comments: mailbox@nicholasjohnson.org
[before excellent editing/tightening improvements by Gazette Insight Editor, Todd Dorman, in published version, above]
Sinclair Communications holds the most TV station licenses of any broadcaster. It wants more, enough to reach over 70% of American homes.
To put this media power grab in context for TV watchers, there’s a useful lesson from some Supreme Court justices’ interpretation of the Constitution – Justices like Antonin Scalia, Neil Gorsuch, and even occasionally my mentor, Justice Hugo Black.
It’s called “textualism,” or “originalism.” Unlike Humpty Dumpty in Alice in Wonderland, originalists believe judges can’t say a word “means just what I choose it to mean” – what it has come to mean, or what they wish it meant. A word means what those who wrote it meant by it, at the time they wrote it. Judges are bound by the “original” meaning of the “text,” the original intent of the drafters.
Suppose we apply to Sinclair the idea of “originalism.” What was the original intent of those drafting laws regulating broadcasters?
New technology leaves us struggling, even for vocabulary, let alone understanding. Automobiles were defined by their lack of horses (“horseless carriages”); radio by its lack of telegraph wires (“wireless” telegraphy).
Given the mystery and miracle of 1920s radio, it’s remarkable that Iowa’s own President Herbert Hoover (then Commerce Secretary) could see radio’s “ability . . . to furnish entertainment, instruction, widening vision of national problems and national events.” Other countries agreed, and established public corporations to operate stations. They, and even U.S. broadcasters, agreed with Hoover that, “it is inconceivable that we should allow so great a possibility for service to be drowned in advertising chatter."
The Radio Act declared its purpose to permit “the use of such channels, but not the ownership thereof . . . for limited periods of time, under licenses [which shall not] be construed to create any right, beyond the terms, conditions, and periods of the license.” The standard for granting, and renewing, licenses was “the public interest.”
It was a kind of cross between private use of public lands, and politicians’ reelections – use, if benefitting the public, but not ownership; officials’ fixed terms, reelection earned.
In 1932 a federal appellate court upheld the Commission’s denial of renewal for a broadcaster who regularly defamed government, officials, labor, and various religions. If broadcasters are permitted to “inspire political distrust and civic discord,” it wrote, radio “will become a scourge.”
Airtime for one candidate required “equal opportunity” for all opponents. Personal attacks generated opportunity to reply. A “fairness doctrine” didn’t control content but demanded treatment of public issues and presentation of a range of views.
As early as 1926, when Congress was debating the Radio Act, Texas Congressman Luther Johnson presciently warned, “American thought and American politics will be largely at the mercy of those who operate these stations.” If “a single selfish group is permitted to . . . dominate these broadcasting stations . . . woe be to those who dare to differ with them. It will be impossible to compete with them in reaching the ears of the American people.”
As late as 1970 no licensee could operate more than one AM, FM, and TV in a single market. The limit nationally was 7 AM, 7 FM, and 5 VHF TV stations. Diversity of viewpoint required banning ownership combining both stations and newspapers.
With broadcasters’ pressure on Congress and the FCC, regulations change with the times. The original intent does not. Were it followed today, Sinclair would not have the licenses it does, let alone more. It would not dictate “local” commentaries to stations legally responsible for their content. And it could not be a propagandist for a single official, candidate, or ideology.
._______________
Nicholas Johnson served as commissioner, Federal Communications Commission, 1966-1973. www.nicholasjohnson.org, FromDC2Iowa.blogspot.com. Contact: mailbox@nicholasjohnson.org
Glen Callanan [General Manager, Sinclair station KGAN-TV2, Cedar Rapids]
The Gazette, April 14, 2018, p. A6
The editorial in the April 5 edition of The Gazette “News Consumers can help fight fake news” provided insight into how to protect against false information. That editorial pointed out KGAN CBS2 News and KFXA Fox 28 News here in Cedar Rapids are owned or operated by Sinclair Broadcasting.
We would like to remind your readers and our viewers that CBS2 and Fox 28 produce more than 33 hours of local news every week. As part of our newscasts we do air clearly labeled commentary provided by our parent company Sinclair Broadcasting. These commentaries account for roughly 8 minutes per week. Decisions about what to air and when to air it are made right here in our own newsroom. Our hardworking producers, reporters, photographers, anchors and a host of others work every day to bring our viewers the most up-to date, factually balanced stories from right here in the Corridor, our state, our nation and the world.
In just the last couple of years, CBS2/Fox 28 news has won multiple national and regional awards for our local news coverage from the Society of Professional Journalists, Upper Midwest Emmy, RTDNA Edward R. Murrow Regional Awards and the Iowa Broadcast News Association. Our entirely locally produced news public affairs show, “Iowa in Focus” had a run of more than 100 episodes focusing on issues relevant to Iowans including in-depth political reporting throughout 2016 and 2017.
We are also deeply involved in our community, providing support to community events and charities. Our station has a core belief in making an impact to improve our community. The Pay It Forward with Impact campaign is one example. In 2017, we began a twice a month series that features someone who gives back to the community. We tell their story and donate $300 in their name to a charity of their choice. Last year $7,200 was donated to charities such as the University of Iowa Stead Family Children’s Hospital, Camp Courageous and the Cedar Valley Humane Society among others. We are looking forward to helping more charities in 2018.
Sinclair has made a significant investment in our local news operations over the last few years which have allowed us to better produce our local newscasts. This includes equipment that improved the way we cover news, as well as adding jobs to a growing newsroom. When it comes to covering local news on a day-to-day basis, it is our people who live, work and play right here in the Corridor who make it their mission to uncover and report on the stories that affect our viewers.
• Glen Callanan is general manager of CBS2/Fox 28 in Cedar Rapids.
While I agree with the substance of your argument about the abuses, current and proposed, of the Sinclair operation, dipping into originalism seems risky business in the long-run.
Such is companion, in its demonstrated application by Scalia, et al, to be a companion to biblical literalism. Once published, texts take on a life of their own. They can only be interpreted by live human beings in their present context. History changes the context of the original version of document, published or unpublished.
Freedom of the press in the 18th century did not anticipate the likes of Sinclair, or anything like electronic media. Dealing with such requires wholesale reinterpretation based on current realities and assumptions about the common welfare.
Thanks for your thoughts.
Robin Kash
Cedar Rapids
I read your article in the Gazette today with some interest. As someone who follows the media closely I have several comments on your thoughts.
First let me point you to the editorial by Glen Callahan, also in the Gazette today. He did a nice job of explaining Sinclair's role in their local news coverage. I think the appropriate thought that he presented was that the "origin" of local news comes from his newsroom and not from Sinclair's corporate HQ.
Interesting comment "Originalists believe judges can't say a word means just what I chose it to mean - what it has come to mean or what they wish it to mean". It appears to me today that we have a preponderance of judges who ignore the Executive power of the President when it doesn't suit their political view and then support it when it does. The number of lawsuits regarding Visa and immigration issues reveals a totally corrupt judiciary that have decided "the words selectively mean what I chose it to mean". They decided the same issues differently.
What's more amazing though is the criticism of Sinclair "to dictate local commentary". it doesn't take a rocket scientist to recognize the major networks, CNN, MSNBC and to a lesser degree the other networks singular hatred of President Trump. All responsible media studies in the past couple of years reveal a 90% negative coverage of President Trump. Claiming Sinclair is dictating news is preposterous when compared to the collusion between the major networks and national newspaper.
"And it could not be a propagandist for a single official, candidate , or ideology." Do you think anyone couldn't figure out which candidate the MSM supported in the election and everyday since? The bias is so loud people seems not to actually hear it over the din.
The free part of the press is almost unrecognizable today.
BTW the "Fairness Doctrine" was a way to stand on the neck of the free press and a means to limit some people's speech. It was not fair or useful in a free society.
Gary Ellis
