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Just like the first amendment?
Submitted May 31, 2007 - 6:48 pm by Reber BoultThe free expression clauses of the first amendment of the U.S. Constitution prevent the government from requiring that most media outlets have a license (other than a routine and entirely available business license). I'm not even a first amendment absolutist (I believe the guarantees of free expression need to be harmonized with the guarantees of free elections; these fundamentals are sometimes at odds especially when money is involved) and I see that as entirely clear and desirable.
So why is it "most media outlets" rather than all of them? It's because the spectrum of radio frequencies is not unlimited nor nearly so, like the number of printing presses or web sites. Some way has to be devised to allocate broadcast channels. In the late 1920's Congress set the method (caving in a lot to commercial interests) and created the predecessor of the Federal Communications Commission to administer it. One of the standards was that you can't keep your license unless your station has served some modicum of the public interest. I don't know of any U.S. licenses that have been lost to this requirement, although there is some small evidence that it used to (as in before the Reaganites started giving away the store) have a salubrious effect on broadcasters in small ways.
So it looks like what Venezuela did to RCTV was consistent with what our FCC is, in theory, supposed to do. Some say there wasn't sufficient due process in the doing but that doesn't seem to be the major complaint and probably wouldn't have changed the outcome; it could be a big problem in future proceedings.
The government's ability to depart from first amendment orthodoxy (that speech can't be licensed nor regulated based on its content) where the expression is broadcast was discussed in a turgid opinion written for most of the Court by turgid U.S. Supreme Court Justice Whizzer White in 1969 in a case involving the FCC and a broadcaster named Red Lion (ironically, that case came from a redbaiting program it had aired). Some excerpts from the Court's "Official Syllabus": "The fairness doctrine [later abolished by the Reagans] began shortly after the Federal Radio Commission was established to allocate frequencies among competing applicant [sic] in the public interest . . . . The fairness doctrine and its specific manifestations in the personal attack and political editorial rules do not violate the First Amendment. . . . The First Amendment is relevant to public broadcasting, but it is the right of the viewing and listening public, and not the right of the broadcasters, which is paramount. . . . The First Amendment does not protect private censorship by broadcasters who are licensed by the Government to use a scarce resource which is denied to others."
Putting this power in the government is troubling. But where else would we put it? At least in some ways, in some governments, there's a chance for popular input and having some rules that might curb some abuses. That's what governments are for. Some governments, probably not Venezuela's, have courts that help to put brakes on abuses.