Within days, MediaMatters.org , a liberal, media-watchgroup funded by Hillary Clinton, picked up on those words and picked up this statement and ran with it, claiming that he “called service members who advocate U.S. withdrawal from Iraq phony soldiers.” — an obvious misrepresentation.

Within days, (and without bothering to check his facts) Senate Majority Leader Harry Reid went before the floor of the Senate and called on Limbaugh to apologize for his 2 words.

REID: That’s why Rush Limbaugh’s recent characterization of troops who oppose the war as “phony soldiers” is an outrage. Our troops are fighting and dying to bring to others the freedoms that many take for granted. It is unconscionable that Mr. Limbaugh would criticize them for exercising the fundamental American right to free speech. We call on you to publicly repudiate these comments that call into question their service and sacrifice and ask Mr. Limbaugh to apologize for his comments.

Mr. Reid, who daily makes it is mission to undermine the success of our troops is trying to use the power of his elected office to silence via intimidation a public media figure by selectively pulling two words of a much larger conversation out of context and imposing his own interpretation on them.  He is claiming that Mr. Limbaugh (a host who expresses deep gratitude to every military figure who calls in to his show) is now being unsupportive of the troops because he called soldiers who lie “phony”. How ironic; the man who threatens anyone who challenged his patriotism is now challenging Mr. Limbaugh’s…. patriotism. Quite the double-standard.

And if this were not enough, Mr. Reid sent a letter to the CEO of Clear Channel Communications which calls on him to “publicly repudiate these comments that call into question their service and sacrifice and ask Mr. Limbaugh to apologize for his comments.” I’m sorry, but if this is not Government surpression of free speech, I don’t know what is. He is trying to use political force to frighten a private entity from expressing opinions (which he has to fabricate) that he disagrees with. It is clear that Mr. Reid is reverting to personal attacks on his political opponents in order to divert attention from his shameful record as leader of the Senate. His incredibly low approval rating and his failure to end the Iraq war…despite his own promises that it would end under his leadership… amount to nothing more than a record of incompetence.

Allow me to ask my liberal friends a question. Is this the kind of people you want running our country? Politicians who will slander private citizens for personal interests; politicians who use their coercive power to silence speech they disagree with; politicians on whom facts have so little impact? I hope not. Can you imagine the outrage if BUSH tried to attack Democrats for not supporting the troops? Can you imagine the hell that would ensue? How is it that such acts are acceptable… if coming from the mouths of Democrats and not Republicans? Is this not a horrible double-standard?

Our first inquiry is what is meant by the term “Commercial Speech”? The doctrine, as we are familiar with today, originated with Central Hudson v. Public service Commission of New York. The issue in this case was whether the state could constitutionally prohibit Central Hudson (an electric-company) from advertising the use of electricity in an attempt to curb energy usage. Much of the debate in revolved around the economic interests of the state of New York in maintaining the supply of electricity for its citizens. In order to protect supply (and by extension, the interests of the public at large), the city had created a restriction on Hudson’s ability to advertise energy use. The state’s economic interests were considered substantial enough to warrant the suppression of Central Hudson’s First Amendment protections.

The Court broadly defined Commercial Speech as anything that either “proposes a commercial transaction or [was] related solely to the economic interest of the speaker and the speaker’s audience”¬ù. The Court then developed a 4 part test for determining whether commercial speech receives first amendment protection. First, the speech must concern lawful activity and not be misleading. Next, the asserted governmental interest must be substantial. If these tests are met, the court then applies intermediate scrutiny–applied asking whether the governmental interest is directly advanced, and whether it is more extensive than necessary.
The Central Hudson test is, in the broad scope of things, a very modern development in first Amendment Jurisprudence. Early cases such as Chrestensen2 and Pittsburgh Press3 held that purely commercial speech does not get any First Amendment protection. It was not until Bigelow v. Virginia4 that the Supreme Court recognized first Amendment protections for Commercial Speech. In this case, Bigelow, a Virginia Newspaper Editor, was charged with violating a statute that prohibited advertisements aimed at encouraging women to get low-cost abortions. In a complete round-a-bout, the court found that Commercial Speech does not wholly lose its first amendment protection merely because it is Commercial Speech.5
A state cannot foreclose the exercise of constitutional rights by mere labels. Regardless of the particular label asserted by the state–whether it calls speech “commercial” or “commercial advertising” or “solicitation”–a court may not escape the task of assessing the First Amendment interest at stake and weighing it against the public interest allegedly served by the regulation?¢‚Ǩ¬¶ The relationship of speech to the marketplace of products or of services does not make it valueless in the marketplace of ideas.
This is fantastic. In an instant, Commercial Speech was transformed from something worth no more than the product it displayed to an indispensable and invaluable element of Democracy. Unbelievable! What was once considered only “solicitation” is now a public service allowing the marketplace of ideas to function more efficiently.?Ç Finally, What I find particularly interesting about Bigelow is that the larger issues of privacy and abortion, which were certainly on the minds of the Justices at the time (Roe v. Wade was decided just 2 years earlier) might have indirectly affected the development of the Commercial Speech doctrine.6
As one reads the many opinions about this doctrine, I think it is fair to say there is a certain unease with its scope. How does it apply to a business’ political statements? Is it only applicable to point-of-sale speech or does it cover a wider array of speech that simply benefits a company’s economic interests? As corporations have evolved from small town-shops to multinational corporations, it has become harder to support the idea that they speak only with an intent to sell a good or service. Statements on issues such as labor, trade, and health care have nothing necessarily to do with a ?¢‚Ǩ?ìcommercial transaction?¢‚Ǩ¬ù, but rather deal with managerial decisions and public policy issues. As one reads Nike v. McClaskey, it becomes clear that the doctrinal limits of the doctrine are very much in question.
The issue in Nike was whether Nike’s false statements about its labor practices, issues of “public debate”, deserved greater first amendment protection because of their quazi-public nature. Nike was sued under a California Unfair Competition law because of false statements made by Nike in a number of public outlets (including newspaper editorials, press releases, etc.) regarding its labor practices.¬† Nike’s position was that issues of labor practice and working conditions at its factories were issues of public concern and therefore Nike’s speech warranted higher First Amendment protection.?Ç Although the Supreme Court ultimately did no more than dismiss the writ of certiorari, Justice Breyer’s dissent wrestles with the limits of the doctrine.?Ç In addressing the dual nature of Nike’s speech, he found the non-commercial characteristics to be “inextricably intertwined”¬ù with the commercial elements. He noted that the non-commercial elements in question were designed for a “diverse audience” concerning “a matter that is of significant public interest and active controversy.”
What seems to be happening with the Court is a dawning realization that the Commercial Speech Doctrine is too inflexible.?Ç It paints with broad strokes and encompases certain types of political speech that would otherwise be protected. After all, isn’t the large majority of purely political speech centered around economic issues? Why exclude corporations from engaging the American public on matters of public concern??Ç I certainly cannot think of any pressing reason to keep Nike’s opinions from the public sphere, and I think Breyer would agree with me. Whatever the value the doctrine has in regulating commercial transactions, it fails to carry logical, historical, or constitutional weight when applied to political speech by commercial organizations. Businesses are, after all, organized groups of individuals who have similar interests in mind. To prohibit them from speaking on public issues is certainly contrary not only to the purpose of the Amendment’s drafters, but also to contemporary concepts of free society.

I concur with the majority on the issues of spectrum scarcity and licensing. It is clear that the F.C.C. must allocate frequencies if the broadcast media is to exist in the form in which we have become accustomed. The public nature of the airwaves necessitates a licensing scheme in order for the available frequencies to be allocated in a market competing for those frequencies. Furthermore, there is no compelling reason why government licensing of airwaves should be any different than its involvement in many other marketplace where resources are scarce. In fact, were it not for the failure of the private sector to divide up the broadcast spectrum, government regulation would not have been necessary. The right of any party to use the airwaves should be looked at with no more or less favor than the rights of someone to pollute a stream or river; government regulation is needed in both instances in order to allow the most people to have the most access.

In addressing the issues arising from technological advances in distribution and digital compression, the majority correctly reasoned that the mere lack of a current demand for every available frequency neither negates the possibility that those frequencies could be filled nor solves the problem of frequency allocation. Licensing is still required to prevent spectrum “overlap”, regardless of total availability. We are increasingly becoming a media-centric society; to assume that demand will never outpace supply is, in my opinion, shortsighted.

It is after this point that I disagree with the majority’s reasoning, and concur in outcome only. It seems clear that Red Lion does not have a cause of action, given the nature of its broadcast license. I find no reason why, given the F.C.C’s authority to limit spectrum use, it may not also create time limitations on the use of of the spectrums in question. Red Lion’s argument seems to imply that they have a constitutional right to 24 hour control over the content broadcast over their frequency for the duration of their license term. I find no reason to conclude that the license granted by the F.C.C. confers this privilege.

If the broadcast license granted by the F.C.C. granted a complete bundle of rights, then Red Lion would have standing because the government would be forcing them to publish a particular viewpoint. This court held, in Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, that the freedom of the press was bound by 2 things: a sufficient number of readers, and the journalistic integrity of its editors and publishers. Again, in Tornillo, we held that, “The choice of material to go into a newspaper… and treatment of public issues and public official–whether fair or unfair–constitute the exercise of editorial control and judgment.” I see no reason to alter our holdings in either case.

As if we were seemingly unsure of ourselves, we went on to say in Tornillo that the application of the press clause had not yet been fully explored in the context of new media. I can think of no better opportunity to address this dictum and re-affirm the principle of individual editorial autonomy and its applicability to all forms of journalism, both the forms which exist today and those which may exist in the future. A completely free press has been central to the notion of freedom of speech; to hold to the contrary would do great damage to our civic society.

What distinguishes my opinion from that of my fellow justices’ is my distaste for the positive rights they believe exist within the first amendment. The bill of rights are primarily about protecting individuals from the government action, not about guaranteeing any right to be heard or any right to access. Why are the rights of the viewers “paramount”, as the majority seems to suggest? What good are the rights of the audience if the speech they hear is tainted? The first amendment specifically speaks in the negative, “congress shall make no law abridging the freedom of speech”. Does the majority wish us to believe this actually reads, “congress shall ensure viewers can hear all points of view?” This “marketplace of ideas” the majority discusses, is merely the result of thousands of individuals speaking without fear of repercussion–hence the need for negative rights. It is not an end in itself, but a theory of how the public makes decisions. True, it is through the marketplace that society can weigh facts and make the most educated decisions, but it is not the primary objective of the first amendment to create this market. Perhaps this really a moot point, but I think it worth the effort to clarify what I believe the court’s position should be on this issue.

With these principles in mind (and, in spite of them), I would further distinguish my opinion on the grounds that Red Lion has no standing in this case. I do not agree with the majority that spectrum scarcity gives the government any right to require the suppression of editorial decisions, but neither do I agree that the paradigm used by the court to arrive at its conclusion is the most accurate. It seems clear that instead of exercising some editorial control over Red Lion’s programming, the F.C.C is merely requiring that Red Lion broadcast a public message on public time the F.C.C. has reserved for its own use. This in no way compromises Red Lion’s editorial control over stories and topics it chooses to air within the time provided it in its license. As I have stated before, congress, acting through the F.C.C., is not required to allocate frequencies in their entirety. These public broadcasts are therefore not part of Red Lion’s broadcast, despite the content similarities. The fact that this “public” content had some logical relation to the news stories is simply not relevant to the issue of whether Red Lion has the right to control content on public time.

For these reasons I respectfully concur.

we reaffirm unequivocally the protection afforded to editorial judgment and to the free expression of views [in newspapers]

The Power of a privately owned newspaper to advance its own political , social, and economic views is bounded by only two factors: first, the acceptance of a sufficient number of readers … and second, the journalistic integrity of its editors and publishers.

a newspaper or magazine is not a public utility subject to “reasonable” governmental regulation … we prefer “the power of reason as aplied through public discussion” and remain intensely skeptical about those measures that would allow government to insulate itself into the editorial rooms of this Nation’s press.

As my instructor continually reminds us, if you know the values the Judge finds important, you can almost always predict the outcome of the case. Here, it is clear that three values influence the justices’ decisions: editorial autonomy, the unregulated marketplace of ideas, and limited government power. These values cause the court to find in favor of the newspaper instead of the government. Now compare this to the Red Lion case involving BROADCAST MEDIA…

Just as the Government may limit the use of sound-amplifying equipment potentially so noisy that it drowns out civilized private speech, so may the government limit the use of broadcast equipment. The [right of a broadcaster] does not embrace a right to snuff out the free speech of others.

There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community…

There is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all…

Now, how does one reconcile these two cases? Is not editorial autonomy in direct competition with the unlimited private censorship of speech? How can one protect against the private censorship of speech and yet protect the editorial judgment of private newspapers at the same time?

Fortunately, the Supreme Court is not the final arbiter of truth, and its not the end of the world if their cases contradict… but one wonders what rationale is available to explain such a seeming contradiction. Does the limited nature of the broadcast spectrum warrant government protections for the fair use–just as it may restrict an electric company who monopolizes a limited electric network? What are the values espoused in the Red Lion case? Equality of opportunity for speech? Efficient use of a scarce resource? Fairness? A Complete public debate??? Should those values win in the end?

I really don’t have answers, just more questions…