XM, Free Speech and The Real Issues

[David Farber <dave () farber net>]

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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