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First Amendment Hypocrites

The Democratic Party vs. the Sinclair Broadcast Group

by Jesse Walker

On October 14, security guards ejected three women from a Bush rally in Oregon because they were "disruptive." As far as anyone can tell, their disruptive behavior consisted of wearing T-shirts bearing an American flag and the motto "Protect Our Civil Liberties."

In response, Democratic National Committee chief Terry McAuliffe declared that President Bush "has stripped his events of anyone who might disagree with him, which is completely un-American. It is dangerous for a President to be the bubble boy of American politics." But as crude and thuggish as the Bush campaign's behavior was, it at least reflected a certain self-awareness: When it expelled those women from the rally, it was frankly acknowledging its attitude toward civil liberties. McAuliffe, by contrast, managed to pose as a defender of free expression even as he was petitioning the government to suppress a TV show critical of his candidate.

Two days before the incident in Oregon, the Democratic National Committee filed a complaint with the Federal Election Commission. Its aim was to prevent the Sinclair Broadcast Group from airing a program based on the anti-Kerry documentary Stolen Honor. Sinclair plans to have 40 of its 62 TV stations preempt their regular programming this Friday evening and transmit the show instead.This, the Democrats argued, constitutes "an unlawful corporate-funded electioneering communication and corporate in-kind contribution to the Bush-Cheney '04 campaign and the Republican National Committee," and should therefore be forbidden.

At the same time, Democratic activists began making noises about challenging the stations' broadcast licenses when they came up for renewal. Chad Clanton, a spokesman for the Kerry campaign, told an interviewer that Sinclair is "going to regret doing this, and they better hope we don't win." Some liberals tried to fight the program without bringing in the heavy hand of the state: by asking advertisers to withdraw from Sinclair stations and by helping organize a Sinclair shareholders' revolt. The stockholders' lawyers argued plausibly that the controversy "already has damaged the value of our clients' shares"—but the first two reasons for this that they listed cited the possibility that the government would revoke some of Sinclair's licenses. Even in the marketplace, the threat of federal censorship was part of the pressure.

The issue here is not whether Sinclair is biased to the right (it obviously is), not whether the program is good journalism (it probably isn't), and certainly not whether Bush deserves reelection (in my opinion he does not). This may look like a partisan issue this month, but this time next year its ramifications will cross party lines. In an area—the regulation of political speech—that is already strewn with bad legislation and dangerous precedents, the Democrats are demanding the most dangerous precedent yet: to narrow the "media exemption" to the FEC's restrictions on "electioneering communications." Those rules put severe restrictions on what can be broadcast within 60 days of an election, but make an exception for "a communication appearing in a news story, commentary, or editorial." Sinclair's show doesn't qualify, the party argues, for two reasons. One, because "the company is obtaining the film, not from a legitimate documentary producer, but from a disgraced former reporter who has never before produced a documentary." And two, because Sinclair is not "acting as a press entity" but as a supporter of the Bush-Cheney campaign.

The first objection is more obviously appalling, since it amounts to asking the feds to get into the business of determining who is or isn't a qualified filmmaker. But the second statement is insidious as well. In the wake of the forged-documents scandal at CBS, it has become an article of faith of many on the right that Dan Rather's network is in the Kerry camp (and that Rather himself is basically a "disgraced former reporter"). A leaked memo at ABC News has been widely interpreted as urging its reporters to tilt toward Kerry; that wasn't what it actually said, but that didn't stop at least one prominent Bush backer—former New York mayor Ed Koch—from suggesting on The Daily Show that ABC's broadcast licenses, like Sinclair's, should be challenged. If absolute, unerring nonpartisanship is what it takes to be "a press entity," then you can be sure there will be plenty of future complaints with the FEC, justified or not, about stories one campaign or the other would like to suppress. Today Sinclair, tomorrow the world.

The strangest, most misguided response to McAuliffe's censorship effort has come from those who support it because they believe this is somehow about media consolidation. The Media Access Project's Andrew Jay Schwartzman, for example, told the Baltimore Sun that "no one company should be programming 62 stations." Assume, for the sake of argument, that he's right. The FEC complaint said nothing about making Sinclair smaller; the precedent it would set could just as easily be used against an independent, collectively owned, non-profit station devoted to lesbian tuna cannery workers of color. Similarly, the threat to strip Sinclair of some licenses has nothing to do with the idea that the company holds too many of the things; it has to do with the fact that it is using those licenses to broadcast controversial speech, the same species of complaint that has been used to hassle the leftist Pacifica network at license renewal time.

On October 19, Sinclair announced that it would not show the entire Stolen Honor documentary, and would present instead an hour-long program that draws from that film among other sources. This was widely interpreted as a victory for the Stop Sinclair movement. In fact, it's not clear that this wasn't the broadcaster's plan all along. (Nor is it clear that the new program will be any less anti-Kerry.) From the beginning, the company has said that it was going to air a program "based on" the documentary and that the format had not been finalized; while some statements from Sinclairites seem to contradict this, that arguably supports the thesis that they honestly weren't sure what they'd be broadcasting.

It appears that the FEC probably won't consider the complaint until after the election, and no government official has told the company that it doesn't have the right to transmit the show. Let's hope that this will remain the case; and let's hope that, if Kerry does get elected, he will refrain from putting Chad Clanton's threat into action. Above all, let's hope that the Democrats now rushing to protest Sinclair's freedom of speech will someday recall the old saw about sauce and geese and ganders.

Barring that, let's hope that the next time some security thugs harass some liberals at a Bush rally, Terry McAuliffe will at least refrain from posing as a friend of free speech.