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The Problem with Liberal Fantasies about Restricting Free Speech

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Today is the last full day of the Trump presidency. On the menu today, why a “reinvigorated” Federal Communications Commission couldn’t apply the Fairness Doctrine to cable news the way Washington Post columnist Max Boot yearns to see; the U.S. State Department declares it has “reason to believe that several researchers inside the Wuhan Institute of Virology became sick in autumn 2019, before the first identified case of the outbreak, with symptoms consistent with both COVID-19 and common seasonal illnesses,” and why canceling the Keystone XL Pipeline doesn’t even make sense by the Democrats’ own criteria.

Never Trump Columnist Forgets How the FCC and First Amendment Work

Max Boot, writing in the Washington Post, calls for greater federal government restrictions on what Fox News can and cannot say:

While we should expect better behavior from media executives, we shouldn’t count on it. CNN (where I’m a global affairs analyst) notes that the United Kingdom doesn’t have its own version of Fox News, because it has a government regulator that metes out hefty fines to broadcasters that violate minimal standards of impartiality and accuracy. The United States hasn’t had that since the Federal Communications Commission stopped enforcing the “fairness” doctrine in the 1980s. As president, Biden needs to reinvigorate the FCC. Or else the terrorism we saw on Jan. 6 may be only the beginning, rather than the end, of the plot against America.

This is what happens when a columnist writes with great passion and doesn’t bother to look up the specifics of what he’s writing about.

Fox News, Fox Business Network, One America Network, and NewsMax TV are cable stations and do not broadcast over public airwaves. The Federal Communications Commission has little authority over cable channels. (The FCC might have a little more authority over Fox News Sunday and other news programs that carried by the Fox Broadcasting Company.) The Fairness Doctrine applied to broadcasters who used public airwaves. The FCC commissioners decided to revoke the Fairness Doctrine in 1987, a unanimous 4–0 decision involving two Republican commissioners and two Democratic commissioners. The FCC counsel concluded that the rule had become counterproductive, as broadcasters “had shied away from covering controversial issues in news, documentaries and editorial advertisements.”

After the decision, Floyd Abrams, a lawyer who specializes in First Amendment cases, told the New York Times, “This is the beginning of the end of Governmental control over the content of what appears on television.”

In short, Boot wants to reinstate government control over the content of what appears on television.

Again, at the time, this applied to broadcast networks because they used the public spectrum to get their signal from their station or broadcast tower to your antennae. Cable- and satellite-television providers didn’t use public airwaves, so the FCC had less authority to regulate them. Cable news existed at the time — CNN was founded in 1980 — but no one paid much attention to that network until Baby Jessica fell down the well.

Since then, the FCC has stayed far away from anything resembling Boot’s vision of an authoritative judge, levying fines on news organizations that don’t meet federal regulators’ notions of what constitutes impartiality or accuracy. Furthermore, in the agency’s own words, “the FCC’s authority to respond to these complaints [of bias, inaccuracy, or poor coverage] is narrow in scope, and the agency is prohibited by law from engaging in censorship or infringing on First Amendment rights of the press. Moreover, the FCC cannot interfere with a broadcaster’s selection and presentation of news or commentary.”

What Boot is calling for is completely at odds with how the FCC defines its mission, and how it acts in a manner that is consistent with the First Amendment.

The FCC is barred by law from trying to prevent the broadcast of any point of view. The Communications Act prohibits the FCC from censoring broadcast material, in most cases, and from making any regulation that would interfere with freedom of speech. Expressions of views that do not involve a “clear and present danger of serious, substantive evil” come under the protection of the Constitution, which guarantees freedom of speech and freedom of the press and prevents suppression of these expressions by the FCC. According to an FCC opinion on this subject, “the public interest is best served by permitting free expression of views.” This principle ensures that the most diverse and opposing opinions will be expressed, even though some may be highly offensive.

That phrase “clear and present danger of serious, substantive evil” comes from the Supreme Court case Terminiello v. City of Chicago, which held that a city ordinance banning speech that  “stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance” was unconstitutional under the First and 14th Amendments.

Justice William Douglas wrote in the majority opinion:

Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, (Chaplinsky v. New Hampshire supra, 315 U.S. at pages 571-572, 62 S.Ct. at page 769) is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. . . . There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups.

“Standardization of ideas by legislatures, courts, or dominant political or community groups” might be just what some people aim to achieve.

Biden can “reinvigorate” the FCC all he or Boot likes, but the federal agency is not going to have the authority to start telling cable channels what they can and can’t say . . . unless they want to get a blistering response from the U.S. Supreme Court for violating the First Amendment.

What Sickened Researchers at the Wuhan Institute of Virology in Autumn 2019?

On Friday, the U.S. State Department released a fact sheet about the coronavirus pandemic declaring, “We have not determined whether the outbreak began through contact with infected animals or was the result of an accident at a laboratory in Wuhan, China,” but added one curious new detail: “The U.S. government has reason to believe that several researchers inside the [Wuhan Institute of Virology] became sick in autumn 2019, before the first identified case of the outbreak, with symptoms consistent with both COVID-19 and common seasonal illnesses. This raises questions about the credibility of WIV senior researcher Shi Zhengli’s public claim that there was ‘zero infection’ among the WIV’s staff and students of SARS-CoV-2 or SARS-related viruses.”

That contention aligns with a May report from NBC News that a private analysis of cellphone-location data showed no cellphone activity in a high-security portion of the Wuhan Institute of Virology from October 7 through October 24, 2019, suggesting that a hazardous event occurred around that time.

Earlier this month, when New York magazine ran a lengthy article by Nicholson Baker that concluded a lab leak couldn’t be ruled out, editor-in-chief David Haskell emphasized that his magazine’s fact-checking team spent a month vetting the story, and asked, “One of the great mysteries of this pandemic—where did it originate?—is twinned with a meta-mystery: Why has the question of its origin not been explored more vigorously?”

Some of us don’t find that question so baffling. If SARS-CoV-2 had a natural origin, the pandemic that has besieged us is just bad luck, with no serious policy repercussions, other than more denunciations of the illegal-animal-smuggling trade, which brings more people into contact with wild animals and potential new viruses. But if SARS-CoV-2 originated because of reckless Chinese scientists and went on to kill more than 2 million people around the world, Beijing’s epic irresponsibility and dishonesty would tear up every existing relationship between the Chinese government and the rest of the world. It could even conceivably lead to war.

These recent reports, by themselves, do not prove that SARS-CoV-2 is the result of a lab accident. We may never learn the virus’s origins with any certainty. If any physical evidence of a lab accident existed, the Chinese government would have destroyed it by now, and the regime’s ability to silence whistleblowers has few rivals.

But we know that the Chinese government has tried to hide something starting from the start of this pandemic. They arrested doctors, suppressed warnings, and denied that the virus could spread from one human to another. Back on January 3, China’s health commission ordered labs to destroy all samples of the virus, allegedly for safety, on the same date forbade the publishing of any information regarding the Wuhan disease. The Chinese government dragged their feet with the World Health Organization for more than a year now and is still stonewalling.

Xi Jinping and China’s rulers clearly do not want a full and thorough investigation of the virus’s origins. We will just have to draw our own conclusions from their secrecy and obstinance.

Biden to Begin His Presidency by Antagonizing Allies, Unions

The editors of NR denounce President-elect Biden for his promise “to sabotage the Keystone XL pipeline, a privately financed, multi-billion-dollar project already under way, and ‘cancel it on his first day,’ according to a briefing document cited by the BBC.” The “Keystone Pipeline” already exists, running from Hardisty, Alberta, south to Steele City, Nebraska, near the Kansas border. The already under-construction “Keystone XL” pipeline will connect the two points in a more direct route, running through Montana.

The editors don’t get into it, but even by the reasoning of the Left, there’s no good reason to cancel this project.

  • Canadian prime minister Justin Trudeau, the environmentally friendly progressive dreamboat, is a resolute supporter of the project, and the Canadian government will be considerably irked if the Biden administration cancels it without so much as a discussion. Enough of this darn unilateralism and antagonizing our historical allies!
  • The owners of Keystone Pipeline already reached a deal with Laborers International Union of North America (LiUNA), the International Brotherhood of Teamsters, the International Union of Operating Engineers, and the United Association of Union Plumbers and Pipefitters. This is creating thousands of blue-collar union jobs in states that don’t have enough of those!
  • Construction started last year, and they’ve already built 124 miles of the pipeline! If Biden cancels the plan, that pipeline doesn’t just disappear and return the environment to its previous state. It’s just going to sit there, unused. In the name of the environment, Biden will leave enormous amounts of money, time, and energy wasted.
  • Canada’s TC Energy has already “promised to spend $1.7 billion on solar, wind and battery power to operate the partially completed 2,000-mile pipeline system.” A cancellation by the Biden administration would send the signal to energy companies that efforts to minimize greenhouse gas emissions from new projects are a waste of time; no compromise or innovation will ever be enough.

Biden is willing to give up all of that for one day of headlines of environmentalist cheering? He knows they’ll turn around and denounce him the first time he disappoints them, right?

ADDENDUM: As noted on yesterday’s Three Martini Lunch podcast, I may have something of a hearing problem. Every time a school administrator says, “We’re ending our gifted and talented program, because the students in the program aren’t diverse enough,” for some reason my ears hear, “We educators have done a terrible job of bringing out the best in our minority students, who have as much potential and ability as anyone else, and we’re going to divert attention from our failure by boring the Bejeezus out of our smartest kids. In a year or two, we will express surprise at how bright kids are having discipline problems because the new basic, one-size-fits-all curriculum doesn’t challenge or interest them.”


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