Chris writes:

"First, it seems unfair that an several cities' residents -- including Columbus, Ohio, and St. Louis -- were cut out of a part of the national discourse because of the partisan, political views of its ABC affiliate stations' owner."

This is a puzzling reaction for two reasons. First, why do you treat Ted Koppel's political views as "part of the national dicourse" but the station owner's political views as merely "partisan"? Could it be that you share Koppel's views but not the station owner's? Second, the "national discourse" is less in the actual airing of the Nightline show than in the public debate about whether it should be aired. The residents of Columbus and St. Louis have been exposed fully to this part of the national discourse, right?

Posted by: greg at May 1, 2004 12:30 PM

Nightline has run some pretty critical pieces on the war before with absolutely no problems. In fact, I found ABC's coverage during the war (despite the left's chant of media bias in favor of the war) to be ballanced and included many views from other arab countries and arab television. But now some of its affiliates have become a right-wing enclave? I doubt it.

I've found Ted Koppel to be a responsible journalist in the past, but I think Instapundit has a point here: why is this happening during sweeps rather than memorial day? There is a strong inference to draw in favor of a stunt rather than journalism.

That said, I probably would have aired it had it been my choice, and had the pundits hash it out the next day.

Posted by: Matto Ichiban at May 1, 2004 01:09 PM

Gotta agree with Greg there: a station isn't a 'censor' in deciding not to air something. Censoring isn't declining to publish, but legally forcing something off the air. After all, if one wants to listen to Koppel speak, one can use the magic of videocassettes, Tivo... probably even the internet, if someone feels like spending the time and bandwidth. (Indeed, TV networks spend a lot on their websites.)

The flip side of your question would by why should the Sinclairs be forced to air something, so long as they're not contractually bound to it. Or is a radio station that decides, for whatever reason, not to broadcast G. Gordon Liddy (an act of good taste, in my opinion) a 'censor?'

Posted by: A. Rickey at May 1, 2004 03:00 PM

greg (and Tony) --

As I have made clear in the past, I am a strong believer in the First Amendment rights of journalists.

Along those lines, I believe that station owners should not pre-empt national news coverage based on their opinion that some reporting is biased. The distinction is drawn in that station owners should not be censoring news content. Period. The station owner is not a journalist. The journalist, however, obviously is.

Once an individual decides generally to air or fund a news program (or any journalistic endeavor), the "money man (or woman)" should then exit stage right. Allow the journalists to do their jobs without interference or censorship. Otherwise, don't call it journalism -- call it opinion, or "the news we like," or something else.

Posted by: Chris Geidner at May 1, 2004 03:06 PM

I stopped calling whatever Ted Koppel does "journalism" a very long time ago.

Posted by: David at May 1, 2004 03:57 PM

Censoring isn't declining to publish, but legally forcing something off the air.

Wow, I've heard of pretzel logic, but this pained, logic-defying distinction reaches Stretch Armstrong heights (or depths, for that matter).

Posted by: Yuval Rubinstein at May 1, 2004 04:47 PM

Bottom line, Tony and Greg are right: station owners are not government actors, and not subject to the First Amendment's restrictions. As far as I know (and I actually know little) merely invoking "journalism" cannot compel a privately owned television station to fund programming. Similarly, companies could not be forced to fund "journalism" through advertising if they don't want to.

The most one can do is argue that it is the wrong choice for station owners not to air programming they think is biased. Perhaps one can argue that station owners (much like the government) cannot be trusted to pick which speech is correct and which is not, but this does not elevate station owners to the level of government actors for the purpose of the First Amendment. An argument about the wisdom of the station owners could go something like this: these stations refuse to air program X, therefore they are biased against view Y, people should support view Y, so this station is not supporting a view people should support, and people should therefore watch a different station that has shows like X.

Simply invoking the freedom of the press does not require a dump truck full of money to be delivered to you, nor does it require private citizens to bend to your will.

Posted by: Matto Ichiban at May 1, 2004 04:58 PM

You completely misread my comment, Matto. I was not implying the station owners are state actors in any sense. The spirit of the First Amendment and its corresponding respect for journalistic independence, rather, lead me to my position.

Second, you are also far off base in stating that I feel "invoking the freedom of the press" guarantees "a dump truck full of money to be delivered" to journalists. To the contrary, in pursuit of journalistic freedom and integrity, I believe station owners have a responsibility to stay out of the journalistic decisions of their news department -- once they have already decided to fund/air a news program. An owner making ad hoc, case-by-case decisions to pre-empt news programming is censorship. And that is not only wrong, it's bad business.

Posted by: Chris Geidner at May 1, 2004 05:12 PM

First, it's not censorship. Yuval's completely non-substantive objection notwithstanding, censorship implies the ability to enforce one's decisions through law and force. It derives from the Roman positions of censors, and is an act that invokes some kind of state (or quasi-state, as in a school) force. The difference between censorship and non-publication is that the station owner can refuse to broadcast on his station, but--lacking consent from the content owner--he can't prevent it from being run elsewhere.

Any right of journalists for their shows--even selected episodes--to continue to be broadcast wouldn't be found in 1st Amendment rights. "The spirit of the First Amendment" may guide you as far as you personally wish it to go, but the only real question is how far it compels a station owner. Doubtlessly Congress might pass a law--and may have--which would compel such broadcast, but it's not a requirement under the 1st Amendment. Indeed, the colorable 1st Amendment case there would be that of the station-owner, as Congress had passed a law arguable abridging freedom of the press. If you've admitted that the station owner isn't a state actor, then the 1st Amendment has no force--except for its 'spiritual' eminations, I suppose.

You make a reasonable argument of what a station owner should do: not blatantly restricting the output of a 'journalist' on the political grounds is good for one's credibility. (On the other hand, the presumption that Koppel's act isn't similarly politically-biased is simply that.) But whatever it is, it simply isn't censorship, which if not always a state action is very difficult for a non-state actor to accomplish.

Posted by: A. Rickey at May 1, 2004 06:11 PM

Again, I was NOT claiming any First Amendment right exists compelling the station owner to do anything. However, equally as frustrating is the idea that you see nothing beyond our governing documents than their words themselves. I am not talking about a "living Constitution" or any such radical idea; I am simply referring to the spirit of our nation's organzing principles.

How is that worthy of such ridicule, Tony? Would you ridicule a statement that our Constitution leads me to the idea the democratic principles are good and should be encouraged? Unlike you, apparently, I believe that generalizing the ideals of our Nation through examination of our Constitution is a good thing.

As to your idea that censorship must be state-sponsored: WHAT? WordNet defines censorship as "deleting parts of publications or correspondence or theatrical performances" and censor as "a person who is authorized to read publications or correspondence or to watch theatrical performances and suppress in whole or in part anything considered obscene or politically unacceptable."

Although we might think of censorship as being government-based (and it usually would be), anyone with the authority to remove something from the public view is a censor. Even under your definition of "law or force," Sinclair used its force (as owner) to remove "Nightline" from ABC stations. Although there might have remained the potential for broadcast elsewhere, that in and of itself does nothing to diminish the censorship of Sinclair. Even where successful, it was an after-the-fact action taken by ABC, which almost definitely resulted in fewer viewers in those markets.

Sinclair actually or effectively removed the program from the airwaves for many in those markets due to the content of the speech. That, quite simply, is censorship.

Posted by: Chris Geidner at May 1, 2004 07:06 PM

"Although there might have remained the potential for broadcast elsewhere, that in and of itself does nothing to diminish the censorship of Sinclair."

In which case, when I send my novel off to my favorite publisher and they reject it, they'll be 'censoring' me? Or if I write a play, and Sinclair won't stage it? Simply put, the idea of censorship is to remove the ideas from public discourse: deletion. Sinclair didn't delete anything from anything--he (or his station) merely refused to broadcast it. It's still out there. I suppose he could 'censor' it in a sense if he bought all the rights to ever broadcast it, but that's still a bit of an extreme use of the term.

So long as we're playing dictionary, I'll do one better, especially as I like the OED. (More specific definitions)
censor:

2.a: One who exercises official or officious supervision over morals and conduct.
b. spec. An official in some countries whose duty it is to inspect all books, journals, dramatic pieces, etc., before publication, to secure that they shall contain nothing immoral, heretical, or offensive to the government. More explicitly dramatic censor, film censor.

and the only definition availing you even slightly:

3. a. One who judges or criticizes (obs.). b. esp. One who censures or blames; an adverse critic; one given to fault-finding.

However, that seems
And for censorship:

2. a. gen. The office or function of a censor (see CENSOR n. 2); official supervision. spec. control of dramatic production and films (see CENSOR n. 2b, e).

Posted by: A. Rickey at May 1, 2004 07:22 PM

Wow. Well, let's look at your original post: "Without some action taken to stop this sort of censorship, what will happen next?" (emphasis mine). Who takes this action? Unless you are talking about subtle market pressure, it sounds a lot like the government should come in and stop this "censorship" by compelling private funding for speech the station owner clearly does not want to fund (even though ad hoc). This puts the issue precisely backwards regarding censorship and speech.

Even if you didn't mean that station owners were like state actors (even though you've repeatedly called the action "censorship"), you still drew your argument from "the First Amendment rights of journalists," which creates a duty for the government to not censor the press. You don't get to imply a right against private citizens under the reasoning of the First Amendment and disclaim any limitations imposed by it, namely that it has absolutely no application to private actors.

It seems your argument isn't that certain people with money and power shouln't be able to "censor" the press, but that certain people with money and power cannot oppose certain other people with money and power who call themselves "journalists." Specifically, Republicans (partisan Republicans!) may not refuse to use their resources for a broadcast by a liberal because somehow they've recognized him as a journalist and that binds them for all time to either fund all he says or none of it. The source for such an obligation could be contract, but not the unlimited pseudo-First Amendment. It may be a bad idea, or bad business (debatable), but it is not censorship.

And why is it assumed that journalistic integrity is best upheld by station owners giving unlimited discretion to a few elites? Pure fallacy.

McCain made an agument on the merits: this should be broadcast because X subject matter is good. That's far different from saying "journalists' statments are always good," which is what removing other private actors from the picture would amount to.

Posted by: Matto Ichiban at May 1, 2004 07:41 PM

As for "What Would Volokh Say": he's got an archive. Having looked through it for 'censorship,' almost everything that comes up relates to government actors restricting the speech of private actors. While there's nothing directly on point, there's this. (Basically states that private broadcasters have the right to stop broadcasting speech with which they disagree, although the speech here is much more disagreeable.)

Posted by: A. Rickey at May 1, 2004 08:32 PM

Color me red-faced. Now having read the story in question, it's much more disagreeable. :( Still, point holds as to the responsibility of broadcasters to transmit things.

Posted by: A. Rickey at May 1, 2004 08:40 PM

I am not saying that this is a "right" -- I am simply arguing what I think is the correct action. I think market pressures -- not government pressures -- should react to this and stop it. Hence, my repeatedly urging people to contact Sinclair over at my solo blog.

Tony, you write, "when I send my novel off to my favorite publisher and they reject it, they'll be 'censoring' me?" This is very sloppy handiwork, coming from you. As I stated:

I believe station owners have a responsibility to stay out of the journalistic decisions of their news department -- once they have already decided to fund/air a news program.

I think when agreeing to air "Nightline," Sinclair had a choice. It chose to contract to air "Nightline." Once that choice was made, I believe it is censorship to revoke that agreement on an ad-hoc basis. Sinclair was wrong to infringe on its contracted journalist's decisions -- thus censoring Koppel.

Posted by: Chris Geidner at May 1, 2004 09:03 PM

I must say I am amazed that thinking people see censorship as only a government-run possibility.

Censorship is about the power to erase an idea.

Sinclair Broadcasting did all it could to accomplish that end. That its means were limited does not mean that what it did was not censorship; it merely means its censorship was not absolute -- or "perfect" -- censorship.

Posted by: Chris Geidner at May 1, 2004 09:13 PM

Chris never claimed that the affiliate should be legally required because of the first amendment to air the show. He asked for a discussion on the impact of the new FCC regulations on the situaton. He also made reference to journalistic ethics. It sounds like Chris believes--and I would agree--that as a matter of journalistic ethics Sinclair should have carried the broadcast. Note that McCain's letter, with which Chris voiced agreement, made no reference to a legal mandate. Instead it claimed that Sinclair was shirking a responsibility (moral, not legal) and its actions should be met with public opprobium (not fines).

As for whether censorship can be used to refer to nongovernmental action, I agree with Chris on this issue as well. If we're still playing dictionary I'll go with my Webster's New Unabridged (emphasis added):

n. 1. an official who examines books, plays, news reports, motion pictures, radio and television programs, letters, cablegrams, etc. for the purpose of supressing parts deemed objectionable on moral, political, military, or other grounds.
v.t. 6. to examine and act upon as a censor

Note that it does not specify government official. Seeing as Sinclair sought to prevent the broadcast because he thought it criticized the goverment, I would think at the very least he was acting as a censor.

If we're going to go with common usage, I've seen references to network censors and self-censorship. Both are indications that censorship need not be by the government. In fact I've seen the phrase government censorship which would be redundant if censorship were inherently governmental.

To answer Tony's question, if a publisher refused to publish his novel solely because of it's political content I would refer to this as censoring. (Although I would find nothing objectionable to such censorship). I would be even more inclined to use the word censorship if the publisher was regularly publishing a series of your work and chose not to publish one segment because of its political content. This happens from time to time with Doonesbury in newspapers. Again, I don't find such censorship as objectionable, but I would still call it censorship.

The reason the Nightline case is a little more objectionable is because it was set to be broadcast over the public airwaves. This creates certain extra legal obligations and restrictions that don't apply to print media or even cable, but I think it's also reasonable to believe that it carries extra ethical obligations as well. This issue is not new. I recall some affiliates refused to air NYPD Blue when it first came on. I think the situation with Nightline is a little more disturbing because (1) the decision was based solely on political reasons and (2) it was a news program.

Posted by: Gabriel Rosenberg at May 1, 2004 09:48 PM

I'm going to have to way in with Tony and Matto here. In addition to what they've said, I'm particularly unmoved by the idea that station owners should remove themselves from all editorial decisions once they've decided to air a journalistic program. I feel pretty confident we wouldn't be having this debate on this site on a post by Chris Geidner if the "censorship" at issue were a New York or California station owner refusing to air, say, the latest tirade by Michael Savage (okay, okay, he was on cable, but work with me). I certainly wasn't upset when MSNBC fired him, and to the extent they did so because of their opposition to the outrageous things he said on the air, I applaud it (I doubt it, but I would applaud it). I share the intuition of the other commenters that this complaint is driven largely by disagreement with Sinclair's explanation for his actions.

The fact that this gentlemen owns television stations, and affiliated himself with ABC News, does not, in my opinion, make him morally responsible to air a particular episode of a particular program. Should that result in ABC deciding to cut the affiliation, and perhaps putting him out of business, well that's the cost of his decision. But I don't think it comes anywhere near censorship of the sort that either the First Amendment or our moral intuitions about speech rights should be concerned. There is no duty owed by private individuals to provide a speech platform for other private individuals.

Posted by: Unlearned Hand at May 1, 2004 09:49 PM

"weigh in," that is. I didn't get to read Rosenberg's post before I made mine, but I am glad he brought up the "public airwaves" point. That does raise some potentially interesting questions, though I don't think it is operative here. If it were a conflict between the government and Sinclair, then perhaps that would be a reason to be less worried about Sinclair's own rights. But as I said, and as other commenters said, this is a disagreement between private parties. If ABC chooses to take away his affiliation, I'd have no problem with that.

Posted by: Unlearned Hand at May 1, 2004 09:52 PM

UH --

No. Your analysis of my opinions is incorrect. My respect for journalistic freedom will outrun my political passions any day. You are wrong -- and I think not being honest about the scope of the discussion -- when you write that "we wouldn't be having this debate on this site on a post by Chris Geidner . . . ." If, to actually equate the situations, a "liberals-owned" station pulled ONE broadcast of a show based on the owners political feelings, that would be wrong because it would be media censorship.

If, in the alternative, a syndicated cable program was permanently cut from the line-up of some cable station, then that fits perefectly within my already discussed framework:

I think when agreeing to air "Nightline," Sinclair had a choice. It chose to contract to air "Nightline." Once that choice was made, I believe it is censorship to revoke that agreement on an ad-hoc basis.

Permanent cancellation allows the speaker (Savage or whoever) to shop his or her program around elsewhere (not on the ad-hoc, one-show, unworkable basis in the "Nightline" episode situation). It also represents a permanent funding decision of the station -- not an ad-hoc, show-by-show censorship decision.

Posted by: Chris Geidner at May 1, 2004 10:04 PM

I ask myself this. Suppose Savage had a job giving a regular 2-minute segment on 60 Minutes. Suppose the local CBS affiliate decided not to air a specific episode of 60 minutes because Savage was speaking out against gay rights that night. I believe I would still object.

For one thing I believe the local affiliate has not just a contractual obligation to CBS, but it also has a repsonbility to the local viewers as well who rely on that affiliate to bring them CBS programming.

I would hope that ABC would shop around for another affiliate. I would think the local UPN or WB affiliates would much rather have ABC.

I think the issue does also show some of the dangers of having one person or company own multiple TV stations in the same market.

Posted by: Gabriel Rosenberg at May 1, 2004 10:26 PM

For one thing I believe the local affiliate has not just a contractual obligation to CBS

But no one is arguing this point: that if there's a contractual relationship to CBS, then CBS should have the right to enforce it. It can be presumed, I think, that if Sinclair broke his contract ABC will be at the very least pressing a lawsuit.

I'm particularly unconvinced as to why as station owner should recuse himself from editorial decisionmaking with regards to particular shows. What it means is that editorial control sits in the hands of the station owner rather than the news editor, but I have no great reason to put my faith more in one than the other. But at the very highest extent it's a matter of journalistic ethics, not 'First Amendment Rights.'

Finally, there's the 'it was a news program' distinction. If your definition of 'news' is 'anything broadcast under the Nightline brand,' then there might be an argument. But this was at best a memorial, at worst a political protest. Even assuming Sinclair has an ethical responsibility to broadcast news without editorial control, Koppel leaves the realm of protection when he's doing something other than 'news.'

Given that Chris has already sort of conceded that point (in the update about Rosen), we may merely be arguing about means to the same end.

Posted by: A. Rickey at May 2, 2004 12:47 PM

I have to go with Anthony on this one. It's not censorship; it's a business decision. So long as there's no governmental imprimateur, this is not a First Amendment issue. It's a corporate governance issue. Perhaps it's something that shareholders could take up with Sinclair, but not the ACLU.

Posted by: TPB, Esq. at May 2, 2004 12:49 PM

TPB, as did several others, fails to note that neither I nor Gabriel have ever intimated that this is a First Amendment violation. If he followed through the comment thread that should have been clear.

Posted by: Chris Geidner at May 2, 2004 02:19 PM

Well, I can't read through all of this, but I for one I'm tired of these national grief-fests.

I think most people do appreciate that war costs human lives, but what are we suppose to do about it?

I don't grieve for these people, I didn't know them. I think it's in poor taste to wipe out the hanky and dab my eyes over someone I knew as well as the hundreds of other people who are dying in the world as I type this.

What was it, something like 14,000 people died last year in highway accidents? Over 100 a day? While the differentiation can be seen in people dying at random as opposed to people dying to make the lives of others better, who grieves for the countless other policemen, firemen, coalminers, etc. who do their part to make the world a better place?

If course, I'm a bit distorted from society. Most people love a good cry or candlelight vigil or reading of names.

Stuff like this reminds me of when Princess Diana and Mother Teresa died in the same 24 hours. Hardly anyone knew about Mother Teresa because they were too busy fawning over a relatively cute gal that married a forrest troll who she wouldn't have otherwise married where he not the Prince, and spent some time doing charitable work (what else is someone with all the money in the world and no job or duties or responsibilities suppose to do?).

This political wrangling over the Nightline episodes only reveals how truly political things like this are. Koppel wanted to send a message. Sinclair didn't agree. McCain disagreed. Al Gore likes Snapple. I prefer Crown Royal over Jack Daniels and the beat goes on.

/End of rant.

Posted by: Brian at May 2, 2004 04:10 PM

But no one is arguing this point.

No one includes me. I'm not arguing that Sinclair violated its contract with ABC. As you note, it seems pretty clear that they did not. When I wrote, "the local affiliate has not just a contractual obligation to CBS [dealing with a hypothetical 60 Minutes example], my point was that the contractual issues weren't the only issues here, but there were also ethical issues as well. Hence the words "not just". UH had implied this is just a matter between ABC and Sinclair. I agree with McCain, though, that Sinclair also has a responsiblity to its viewers. Again, not a legal one, but an ethical one, especially seeing as these are public airwaves. I don't think one can say it's simply a matter of it's their stations and they can air whatever they want to.

As for the "news" distinction, you have a fair point Tony. That is why for my hypothetical I considered an opinion segment on 60 Minutes. (Think Andy Rooney). Certainly opinion is not the same as news, but the fact that we are talking about Nightline as opposed to NYPD Blue does make a difference to me, although I'm having a tough time articulating exactly why that is so.

Part of it is that the reason for removing the show was a disagreement over the political content (or actually perceived political content). I actually have somewhat of a problem with an ABC affiliate deciding not to air an episode of NYPD Blue--I'd be even more upset if I actually watched the show--but I would find it even more troubling if the decision were based on the political message of the show, as opposed to whether nudity is used. That being said I have even more troubles for removing an episode of a show under the News division (even if the content is not specifically reporting facts). Ted Koppel is a very well respected national journalist. I see his show has having more public significance than an entertainment show. And this is wasn't even a case of an affiliate being asked to preempt their regular coverage to air something, they were preempting their regular coverage because they disagreed with the sentiments expressed.

Posted by: Gabriel Rosenberg at May 2, 2004 04:24 PM

Thanks all for your comments on this issue. Regardless of whether we agree or not, I think discussions like this are why I like blogging. Being able to further understand your position through the nuance of an intelligent time-delayed conversation is quite an educational experience.

Thanks for joining in.

Posted by: Chris Geidner at May 2, 2004 05:10 PM