[BC] On Analysis of Case law

[tpt at literock93r.com]

Let's see if this gets past the censor ;-)!

Sid is right, Red Lion is not a great case. Most important Supreme  
Court Cases arrive with difficult facts and lead to bad law.

But Rich Wood makes the common--lay--mistake of throwing in extraneous  
issues while missing the "holding" or basic law formulated by the  
Court in this case:

"Believing that the specific application of the fairness doctrine in  
Red Lion, and the promulgation of the regulations in RTNDA, are both  
authorized by Congress and enhance rather than abridge the freedoms of  
speech and press protected by the First Amendment, we hold them valid  
and constitutional, reversing the judgment below in RTNDA and  
affirming the judgment below in Red Lion."

That is, the nature of the medium delineates the scope and reach of  
the First Amendment. Here, this "new media" of radio had to be  
controlled and limited because of the scarcity of frequencies  
available for broadcast.

Now, the specific issue addressed was the personal attack rule, which  
was not in place as a specific rule at the time of the Hargis  
broadcast but was codified as a FCC regulation shortly thereafter  
(hence the second case brought by the RTNDA objecting to the rule).   
What is fascinating is that the Court had just considered a personal  
attack case in New York Times v. Sullivan (1964) 376 US 254.

In that case several prominent civil rights leaders placed an ad in  
the NY Times which claimed the arrest of the Rev. Martin Luther King,  
Jr. for perjury in Alabama was part of a campaign to destroy King's  
efforts to integrate public facilities and encourage blacks to vote.  
L. B. Sullivan, the Montgomery city commissioner, filed a libel action  
against the newspaper and four black ministers who were listed as  
endorsers of the ad, claiming that the allegations against the  
Montgomery police defamed him personally. Under Alabama law, Sullivan  
did not have to prove that he had been harmed; and a defense claiming  
that the ad was truthful was unavailable since the ad contained  
factual errors. Sullivan won a $500,000 judgment.

The Court found the First Amendment protected publishers of statements  
against public officials, even false ones, unless "actual malice" was  
involved.

Foot note 2 to Red Lion contains the Rev. Hargis statement that was  
supposedly so inflammatory:

"According to the record, Hargis asserted that his broadcast included  
the following statement:"

     "Now, this paperback book by Fred J. Cook is entitled, 'GOLDWATER  
- EXTREMIST ON THE RIGHT.' Who is Cook? Cook was fired from the New  
York World Telegram after he made a false charge publicly on  
television against an unnamed official of the New York City  
government. New York publishers and NEWSWEEK Magazine for December 7,  
1959, showed that Fred Cook and his pal, Eugene Gleason, had made up  
the whole story and this confession was made to New York District  
Attorney, Frank Hogan. After losing his job, Cook went to work for the  
left-wing publication, THE NATION, one of the most scurrilous  
publications of the left which has championed many communist causes  
over many years. Its editor, Carry McWilliams, has been affiliated  
with many communist enterprises, scores of which have been cited as  
subversive by the Attorney General of the U.S. or by other government  
[372] agencies . . . . Now, among other things Fred Cook wrote for THE  
NATION, was an article absolving Alger Hiss of any wrong doing . . .  
there was a 208 page attack on the FBI and J. Edgar Hoover; another  
attack by Mr. Cook was on the Central Intelligence Agency . . . now  
this is the man who wrote the book to smear and destroy Barry  
Goldwater called 'Barry Goldwater - Extremist Of The Right!'"

One can just hear Rush saying something similar about a contemporary  
author,  politician, or other "public figure."

Need to go drink my tea, meet w/ Gary Liebisch & tell him what Nautel  
did wrong and right with the V-2, then go meet with the bankers. Busy  
day.