Trump May Not Be Serious About His NBC Threats… But He May Have Violated The First Amendment

from the you-can't-silence-people dept

By now, you’ve almost certainly heard about President Trump’s multiple tweet attack on NBC for having a story he didn’t like. A few times, Trump has suggested that NBC should “lose its license” because he doesn’t like the company’s reporting.

Separately, he said during a press conference the rather insane comment: “It’s frankly disgusting the way the press is able to write whatever they want to write, and people should look into it.” Again, the First Amendment is a big part of why the press is allowed to write whatever they want to write.

As plenty of people have pointed out — including FCC Commissioner Jessica Rosenworcel — this is not how it works… on multiple levels. First of all, NBC doesn’t have a license that can be revoked. Local affiliates have the licenses, but that’s different — and those licenses are effectively impossible to revoke because the system was set up to avoid situations like a President trying to censor a TV news station.

But there are some much larger issues here, and a big one is that merely having the President threaten to punish a news organization itself may very well be a First Amendment violation. Now, some people will argue that Trump has his own First Amendment rights to whine about anyone he wants… but courts have already noted that if done as part of their role as a government official, that power is limited. Back in 2015, for example, we wrote about a fantastic 7th Circuit ruling by Judge Richard Posner in which he slammed Cook County Sheriff Thomas Dart for using his position to threaten payment companies into not working with

Posner lays out, in great detail, how a government official, making threats, can violate the First Amendment.

?The fact that a public-official defendant lacks direct regulatory or decisionmaking authority over a plaintiff, or a third party that is publishing or otherwise disseminating the plaintiff?s message, is not necessarily dispositive …. What matters is the distinction between attempts to convince and attempts to coerce. A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff?s First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant?s direct regulatory or decisionmaking authority over the plaintiff, or in some less-direct form.?

And this:

The First Amendment forbids a public official to attempt to suppress the protected speech of private persons by threatening that legal sanctions will at his urging be imposed unless there is compliance with his demands….

Posner also dispenses with the argument that a person is free to say what he wants here, noting that when he speaks, he’s using his position in the government to enforce silencing of speech.

As a citizen or father, or in any other private capacity, Sheriff Dart can denounce Backpage to his heart?s content. He is in good company; many people are disturbed or revolted by the kind of sex ads found on Backpage?s website. And even in his official capacity the sheriff can express his distaste for Backpage and its look-alikes; that is, he can exercise what is called ?[freedom of] government speech.?… A government entity, including therefore the Cook County Sheriff?s Office, is entitled to say what it wants to say?but only within limits. It is not permitted to employ threats to squelch the free speech of private citizens. ?[A] government?s ability to express itself is [not] without restriction. ? [T]he Free Speech Clause itself may constrain the government?s speech.?

And to make the point even clearer on where the line is drawn:

Sheriff Dart has a First Amendment right to publicly criticize the credit card companies for any connection to illegal activity, as long as he stops short of threats?

Trump has complained about news stations in the past — and that’s his right. But when he threatens to silence them by pulling their license (even if that’s impossible) he is now directly using the power of government to threaten someone for protected expression. That’s… violating the Constitution that the President has taken an oath to uphold.

Of course, that’s just a recent 7th Circuit ruling. There are other circuits with similar rulings, such as the 2nd Circuit’s Okwedy v. Molinari case, in which the court found that Staten Island Borough President sent a letter to a billboard company to complain about some billboards with anti-gay bible verses. In that case, amazingly, there wasn’t even a real threat of action — just a letter which called the billboards “unnecessarily confrontational and offensive” and said that “this message conveys an atmosphere of intolerance which is not welcome in the Borough.” There was no direct legal threat, even, just a request to discuss and to act “as a responsible member of the business community.” In that case, the court found that even without the explicit threat, it was a First Amendment violation:

Thus, the fact that a public-official defendant lacks direct regulatory or decisionmaking authority over a plaintiff, or a third party that is publishing or otherwise disseminating the plaintiff’s message, is not necessarily dispositive in a case such as this. What matters is the distinction between attempts to convince and attempts to coerce. A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff’s First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant’s direct regulatory or decisionmaking authority over the plaintiff, or in some less-direct form.

That could certainly apply to Trump’s statements.

There are some Supreme Court cases that are on point as well. The most famous is the classic 1963 free speech case Bantam Books v. Sullivan. In that case, the Supreme Court found that a Rhode Island commission focused on stamping out obscene/indecent/impure images and language in publications was unconstitutional. The Commission didn’t have the direct power to censor — but rather would create lists of items the majority of the Commissioners deemed objectionable, and then (1) notify the publisher, (2) notify retailers and (3) pass along a recommendation of prosecution. The state argued that since there was no direct power to censor, there was no First Amendment violation. The court disagreed, noting that mere intimidation was violating the First Amendment rights of the publishers.

It is true, as noted by the Supreme Court of Rhode Island, that Silverstein was “free” to ignore the Commission’s notices, in the sense that his refusal to “cooperate” would have violated no law. But it was found as a fact?and the finding, being amply supported by the record, binds us? that Silverstein’s compliance with the Commission’s directives was not voluntary. People do not lightly disregard public officers’ thinly veiled threats to institute criminal proceedings against them if they do not come around, and Silverstein’s reaction, according to uncontroverted testimony, was no exception to this general rule. The Commission’s notices, phrased virtually as orders, reasonably understood to be such by the distributor, invariably followed up by police visitations, in fact stopped the circulation of the listed publications ex proprio vigore. It would be naive to credit the State’s assertion that these blacklists are in the nature of mere legal advice, when they plainly serve as instruments of regulation independent of the laws against obscenity

In short, there’s a pretty broad range of case law both at the appeals court level and at the Supreme Court saying that merely threatening action to suppress protected speech is, in fact, a First Amendment violation. Would NBC actually have the guts to sue over this? That’s much harder to say — but it sure would make for an interesting case.

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Comments on “Trump May Not Be Serious About His NBC Threats… But He May Have Violated The First Amendment”

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Anonymous Anonymous Coward (profile) says:

What if he just didn't say or tweet it?

It seems that one of the major problems exhibited by our dear leader comes in the form of impulse control. Anything that crosses his mind comes out of his mouth or fingers (via the Twitters) with a severe lack of editing or higher function consideration for consequences. Impulse control disorder could be a cause with a possibility that several of the types are in play.

It would be sad to watch this public degeneration of a person, if the damage being done wasn’t so widespread.

Anonymous Coward says:

NBC is not a "private person",

it’s a publicly traded CORPORATION SUBJECT to the full panoply of regulation. It’s permitted to exist while serves the public, which it does NOT do when telling lies.

FALSEHOODS ARE NOT PROTECTED SPEECH. — No, they’re NOT. Just try stating falsehoods about persons, or false reports to gov’t. And certainly not for legal fictions having intent which I view as undermining the country that provides it with wide scope and opportunity, so long as obeys a few simple rules such as NOT lying.

You’re a snowflake imagining that your elitist views are actual law. You think you’re privileged so can yell “Fire!” in a crowded theater without ANY repercussion. You are a royalist. First Amendment is NOT license to do as you please.

Here you’re trying to make an assault on free speech out of merely legitimate questions.

Anonymous Coward says:

Re: Re: NBC is not a "private person",

That a "News" channel could still have viewers after making such an argument all the way up to a State Supreme Court (let alone winning their case) baffles me.

I mean, I’m not arguing against their right to tell lies, but if I ran a news channel, I’d either argue that the statements were true, or issue a retraction. Actually using the argument, "But we’re allowed to tell falsehoods!" as a defense seems like a surefire way to torpedo your credibility as a "Fair and Balanced" news channel.

But then, it would appear that I don’t know what the hell I’m talking about.

Anonymous Coward says:

Re: Re: Re: NBC is not a "private person",

Sir Rupert has certainly revolutionized the world of news-reporting. It appears to run like this:
“All news is biased and all people that doesn’t tout my world-view is as such a legitimate target of character assassinations.”,
“Fake news and alternative news are also news. Can’t you read?”,
“We cover both sides in politics, republicanism and conservativism!”
“You say controversy, I say attention!”
“Hi I’m sir Murdock and I approve of the bias!”

rkhalloran says:

Re: Re: NBC is not a "private person",

“Actually Fox News went to Florida State Supreme Court and fought this out. They were sued on the basis of telling falsehoods and won on the First Amendment Grounds, that they are not required to tell the truth.”

Not quite the case:

Two newscasters from the Tampa Fox affiliate sued as whistleblowers over a story carried there, nothing involved the network itself.

Anonymous Coward says:

Re: NBC is not a "private person",

We all must live by these simple rules.

We love free speech when Trump says its free speech.

We hate free speech when Trump says it’s not free speech.

We love lies when Trump says they are true.

We hate truths when Trump says they are lies.

Let Trump disprove the lies. Everyone else has to disprove his.

Fucking snowflakes. Can’t take any criticism of this president.

Don’t bother replying. You’ve got nothing constructive to say.

Anonymous Coward says:

Re: Re: Re:3 NBC is not a "private person",

Ah… admission that your trash talking of Trumps base as being poorly educated implies that you are a democrat whom believes your sheep are more educated.

Well… are you a democrat?

I am independent… I see both parties as equally evil and hypocritical.

Mike Masnick (profile) says:

Re: NBC is not a "private person",


You do realize that the Supreme Court has ruled on this issue multiple times and said that you’re wrong? The NYT v. Sullivan makes it clear that false statements can, in fact, be protected speech, as did the much more recent US v. Alvarez case in which the court directly stated: "falsity alone may not suffice to bring the speech outside the First Amendment." The court also noted that it "rejects the notion that false speech should be in a general category that is presumptively unprotected."

So, yeah, the law says you’re wrong.

You’re a snowflake imagining that your elitist views are actual law.

Note that I’m the one citing 3 Supreme Court cases. You have cited nothing, yet you claim I’m the one imagining my views are law. Look in the mirror, pal.

Mike Stimpson says:

Re: Re: NBC is not a "private person",

Yeah, that’s the law. But AC is at least somewhat in the neighborhood of something approaching an actual point. If somebody (NBC or Fox, take your pick) just makes stuff up and calls it news, isn’t there something wrong? It may not be a 1st Amendment issue, but isn’t it, I don’t know, violating FTC truth-in-advertising issues? (Because it’s selling something that it claims is news, but is instead fiction.)

crade (profile) says:

Re: Re: Re: NBC is not a "private person",

Yes, there is something wrong, but there are also ways to correct it without government interfering. News organizations rely on their reputations. Simply outing them (you know, actually pointing out specific things that are fiction or lies, and proving so) would easily destroy their reputation for people who are seeking truth in news.

People who are seeking echo chambers or who are willfully ignorant are another story, but that’s their right as free people correct?

The answer has to be in teaching the population critical thinking and why the objective truth is valuable, the consequence of echo chamber isolation / willful ignorance.

It’s worse if there is deliberate systematic targeted misinformation.. (Like to manipulate the U.S. population to do whatever Russia wants for example)

Thad (user link) says:

Re: Re: Re: NBC is not a "private person",

The relevant questions here are:

  1. Who gets to decide whether a story is made up?
  2. What are the risks of allowing this (person/group/entity) to decide whether a story is made up? How might that power be abused?

Incidentally, re: "NBC or Fox, take your pick" — Fox News does not have a broadcast license; it’s a cable station. There are local and national news programs that run on Fox affiliates on network TV throughout the country, but they don’t have the same reputation for a certain specific political point of view that Fox News does.

Toom1275 (profile) says:

Re: Re: Re: NBC is not a "private person",

Politifact rates FOX news as having 60% of its content being “Mostly false” or worse. NBC rates at 44%, while CNN is 80% “Mostly true.”

I can only assume the remaining 40% of Fox’s content is listed as opinion, and thus wasn’t eligible for factual analysis.

JMT (profile) says:

Re: Re: Re: NBC is not a "private person",

"Yeah, that’s the law. But AC is at least somewhat in the neighborhood of something approaching an actual point."

No, he was clearly trying to claim that is is law, hence the word ‘protected’. Completely wrong.

"If somebody (NBC or Fox, take your pick) just makes stuff up and calls it news, isn’t there something wrong?"

Actually no, humans have been doing that forever. What would really be wrong is if people kept watching/listening/believing made-up stuff claimed to be news and allowing companies that do that to stay in business.

ShadowNinja (profile) says:

Re: NBC is not a "private person",

LOL you don’t have a clue.

There’s a number of less reputable news organizations that post all sorts of stuff that the mainstream news organizations won’t dare touch.

Occasionally they’re reporting the truth but there’s not enough proof for the mainstream media to touch it (for example they were reporting the Edwards love child for over a year before there was enough evidence for the mainstream media to dare to touch it).

But usually it’s just a load of garbage that’s completely false.

But those news organizations are rarely ever sued, because:

  • Yes corporations and media organizations DO have free speech and freedom of the press rights.
  • Winning a defamation lawsuit as a public figure is nearly impossible, and the lawsuit would just bring them more bad publicity.
Groaker (profile) says:

Re: NBC is not a "private person",

Even your falsehood about protected speech is protected speech.

Your disingenuous use of the “Not Yelling Fire in a Theater” * is true, though it appears to be meant to imply that it is a violation of law, which it is not. Yes, it may lead to repercussions, but it is not illegal.


Thad (user link) says:

Re: Re: NBC is not a "private person",

My name is Oliver Queen.

It was never easy for me; I was born a poor black child. But after 87 years working in the sausage mines, I finally got my lucky break and starred in Alfred Hitchcock’s classic film, Citizen Kane, in 1976. Star Trek creator Stanley Kubrick was so impressed with my performance that he hired me to help him fake the moon landing, which I did, despite the objections of President George Clinton.

From there, I was noticed by Stan Lee, who wrote me into his classic comic book American Splendor, where I served as the basis for Raphael, the nunchuck-wielding Ninja Turtle. It won seven Nobel Peace Prizes.

Also I invented e-mail.

Geno0wl (profile) says:

Could you even imagine

Trump’s base brush this off as a flippant remark(like they do for everything he does from his bull pulpit).

But flip back a year and imagine the shit-fit the right would be throwing right now if Obama said this exact same thing about Fox News. It would be insanity. Hell imagine if Obama said literally half the things Trump says now. They would be foaming at the mouth.

Bergman (profile) says:

Re: Could you even imagine

It’s to be expected ever since the concept of right and wrong, good and evil somehow got relegated by both sides to a partisan issue.

The other side is ALWAYS evil, even when they’re agreeing with your side. Look at what happened when Obama and the Democrats started pushing for the adoption of Romneycare — a Republican health care plan would be acceptable to Republicans, or so you’d think. Except that the Evil Side wanted it, therefore it must be Evil!

These days, it doesn’t matter what any one side says, all that matters is who says it. Your own faction is good no matter how actually evil their actions are, all other factions are evil no matter how much you’d benefit if they got their way.

The Wanderer (profile) says:

Re: Re: Could you even imagine

Well, to be fair, I’m told that Romney explicitly said that he thought his approach was a good idea at the state level – not above it.

Exactly why this distinction would exist, aside perhaps from limited-federal-government-powers arguments which have basically been rejected under longstanding Commerce Clause jurisprudence (however wrongheaded that may be), is less clear – but at least on the surface, saying "it’s good for the states to do this, but bad for the federal government to do it, so I oppose the federal government doing what I supported a state doing" is not internally inconsistent.

Thad (user link) says:

Re: Re: Re: Could you even imagine

Well, to be fair, I’m told that Romney explicitly said that he thought his approach was a good idea at the state level – not above it.

That’s what he said in 2012.

It’s not what he said in 2007:

I’m proud of what we’ve done. If Massachusetts succeeds in implementing it, then that will be a model for the nation.

Machin Shin says:

Re: Re: The only constitution Trump cares about...

That right there is the problem. Bush violated it as well. It has been trampled on for a long time now it is just here recently politicians have been a lot more open about it.

(I find it sad when I write a comment like this and realize that if pulled out of context it would be hard to tell if I was talking about the Constitution or some poor girl)

freedomfan (profile) says:

So, what does NBC do now?

It seems like NBC would have more than a leg to stand on if it chose to go after Trump in court. Will it do so?

On the one hand, it would be useful NBC went to the mat and won. Some folks have never quite accepted that Trump is actually the president, and they spend (too) much of their time fantasizing about the scandal that will finally boot him from office. I have no such illusions that something like this will end the Trump presidency. But, a court ruling against him in a matter like this might make him do something he doesn’t seem to do now: Think for half a second about what it means for the President to say something publicly before he says it. And, just maybe, not say it.

On the other hand, why try to fix Trump? His directness and unfiltered comments are part of why his supporters like him. But, they are also how he reveals himself as a boob much of the time*. Would we be better off if he thought all of these silly things and didn’t say them? It would be less annoying and possibly less embarrassing. But, we might be better off with these constant reminders that, in many respects (not all), the President is an idiot.

(* But also cunning. He knows that his opposition’s obsession with his every controversial tweet means that they waste time on those tweets instead of paying attention to his actual policy initiatives. He knows they can’t resist screaming when he pokes them, so he pokes them and goes on to do something else.)

Anonymous Coward says:

Re: Re: Re:

Why did you just accuse a person, unknown to you, of being … “so partisan, distorted and fake” ?

How do you know anything about that person?

How is it fair to accuse random people of things when you clearly do not have any idea about those you accuse? Is it because everything is everyone else’s fault and therefore not yours?

Mike Masnick (profile) says:

Re: what about President Trump

Doesn’t he still have 1st amendment rights and if he doesn’t, why doesn’t he?

You’re right. If only I had addressed that argument in my post in great detail, including quoting a court opinion on exactly that subject… oh wait, I did.

Please try to read before you make a comment that was already addressed in the post.

Robert Sloan says:

The entire FCC broadcast system violates the First Ammendment

Why is anyone defending NBC or the other broadcasters?

They are a government sanctioned monopoly that exists only due to the “scarcity” of radio bandwidth. The broadcasters have extra rights that the rest of us don’t have.

For example, if Techdirt wanted to start its own newspaper, all it would have to do is just start printing. If Techdirt wants to start another website then all it has to do is register a URL with a name provider and create its own website.

But what if Techdirt wanted to start its own Broadcast TV station. Well, they would be out of luck. The government declares broadcast spectrum a “scare public resource” and has allocated it almost exactly the same way since the 1930’s. This limits the number of broadcasters to a very small amount.

To justify the limited number of broadcast TV stations they were supposed to provide equal access to differing viewpoints, with the FCC providing oversight. In practice you have a few corporate gatekeepers that decides what can be broadcast on television. If NBC wants to broadcast what it wants, the rest of us are out of luck.

We can now get millions of streaming videos over the internet. Anyone who wants to set up a streaming channel can easily do so. There is no technical reason that broadcast tv could be set up with a DNS type channel system (where you register and get a channel number) and then anyone could broadcast what they wanted. Instead of a few broadcast channels we could have millions, just like we get with streaming video on cellphones.

This isn’t 1930. Techdirt should not be supporting the monopoly rights of a few corporations that because of a historical accident have more rights than the rest of us to broadcast over the air. It is technically feasible to set up broadcast TV just like the internet, where anyone can easily set up a website.

Free speech and equal access should apply to all communications platforms. In this day and age no one should have a lock on broadcast television. Access to broadcasting should be just as free as access to the internet

orbitalinsertion (profile) says:

Re: Re: The entire FCC broadcast system violates the First Ammendment

And it isn’t allocated to content providers like NBC (aka Comcast) except for the few broadcast stations they actually own.

Now if you want to talk about large interests hoarding unused spectrum (hardly all of it in the TV bands), there are some other industries and players one could look at.

Robert Sloan says:

Re: Re: Re: The entire FCC broadcast system violates the First Ammendment

That is missing the point.

I can access millions of YouTube videos on my cellphone. There is no reason to have broadcast TV restricted to only a few channels based on 1930’s spectrum allocation

Converting the existing TV infrastructure can be done over time. Congress mandates the specifications of the TV tuner technology (that is how they got UHF in every home. No manufacturer at the time wanted to include it.)

If we have smart TV’s that can access YouTube then there is no reason to have a new IPTV technology that allows people to register for a channel number like DNS and stream television. The only thing holding it back is a legacy infrastructure that puts free speech restrictions on broadcast TV.

Th make it short, broadcast TV should be like the internet. Everyone should be able to get a channel if they want, just like a website.

Anonymous Coward says:

Re: Re: Re:2 The entire FCC broadcast system violates the First Ammendment

f we have smart TV’s that can access YouTube then there is no reason to have a new IPTV technology that allows people to register for a channel number like DNS and stream television. The only thing holding it back is a legacy infrastructure that puts free speech restrictions on broadcast TV.

Anybody can can stream, or post for video on demand by creating an account with a site like YouTube, DailyMotion, VidMe. etc. Go pay them a visit an see what content various individual and organizations have posted.

Robert Sloan says:

Re: Re: Re:3 The entire FCC broadcast system violates the First Ammendment

Yes, but try to tune into any of that on a regular TV.

There is a convenience factor that broadcast TV has built in. You just type in a channel number and go. Even with so called smart TVs there is a hassle factor that a lot of people don’t bother with.

Most of the people on this website are tech savvy, but there are a lot of people who aren’t. They are used to just using the remote to switch channels. That is a barrier that makes it hard for streaming sites.

Yes, you can buy a Roku, or AppleTV, or Amazon Fire stick, but there is no universal standard. We shouldn”t be supporting old technology just because it has been around for decades, especially if it restricts free speech.

Anonymous Coward says:

Re: Re: Re:4 The entire FCC broadcast system violates the First Ammendment

Most of the people on this website are tech savvy, but there are a lot of people who aren’t. They are used to just using the remote to switch channels.

The solution to that is education, rather than adding yet another central organization with its own selection of channels. Besides which, the up and coming generations are dedicated to web streaming sources, and find the idea of watching programs on somebody else’s schedule quaint.

Anonymous Coward says:

Re: Re: Re:2 The entire FCC broadcast system violates the First Ammendment

No, I think you are missing my point.

Unlike the internet that is designed to be allowed to let an almost unlimited number of people start as many websites or post as many youtube videos as they like, the same does not apply to broadcast television.

Broadcast television has to operate within a range of frequencies that has been determined to be safe to broadcast and also within our technical ability to send and receive signals. Each TV channel uses a slightly different frequency and each channel has its own unique frequency, otherwise you would get channel bleed on TV like how you do on AM/FM radio when channels are too close together.

Additionally, broadcast TV has to share the entire spectrum range with a multitude of other radio technologies such as satellite internet, aeronautical navigation, FM/AM radio, etc… Each has to have its own dedicated frequency because otherwise the signals would interfere with each other and nothing would work. So there is only so much broadcast spectrum to go around. This isn’t an artificial limitation imposed by regulation, it’s a laws of physics limitation implemented by nature. You can check this out for yourself and see just how little available spectrum there is and how many different services use it by going here:

Even if you could overcome the physical limitations of limited available spectrum, then you have the problem of if you want to broadcast your own tv station, you have to have a transmitter and everyone else has to have an antenna that would receive on that frequency. Further, your transmitter would be horribly expensive to buy and operate and would still only broadcast to your local area because of, again, limitations imposed by the laws of physics.

You would need to buy and operate new transmitters all over the country/world and have people operating them to get your station out. The internet, in comparison, allows you to host a website on one single host that can be accessed by anyone with an internet connection and isn’t subject to the physical limitations I described above.

So please, tell me again how easy it would be to make hosting your own television station just like hosting your own website on the internet. I’ll wait.

Robert Sloan says:

Re: Re: Re:3 The entire FCC broadcast system violates the First Ammendment

The same way I can view almost any video on my cellphone.

This is not a technology question. We have solved that. This is an access question. It is how easy it is to access a video channel from your living room TV.

People are so used to the existing technology they cannot see how restrictive it is. There is no reason to not have a broadcast TCP/IP standard that can transmit video, just like you watch on your cellphone.

Imagine if Techdirt wanted to have a broadcast channel. All they would need is a channel number, assigned like a DNS domain is, and just register their streaming server. Then all anyone has to do is just punch in the channel number on the remote and access the channel, just like typing in an URL.

This is within the realm of existing technology. You are just putting a channel number interface on top of existing streaming technology. Anyone just registers for a channel number, just like DNS, and points it to their streaming server.

Instead, because we are so used to it, we accept the current broadcast TV standard, with its restrictions to access and free speech. There is no reason why setting up a IP channel number scheme would not work.

If the internet had been run like broadcast television the FCC would completely control it. It would be artificially restricted to 20 websites, cost hundreds of thousands to register a website, and require tons of paperwork. I think everyone can agree that it is a good thing the FCC doesn’t run the internet.

There is no reason that we cannot create an “internet for broadcast TV” that allows people to easily get a channel number and start streaming what they want to broadcast. It will require moving away from current TV broadcast technology, but if we can stream videos to cellphones, we can stream it to living room TVs. Remove the outdated technology, keep the FCC and broadcast networks from restricting access and you will see a communications renaissance just like the creation of the internet.

Anonymous Coward says:

Re: Re: Re:4 The entire FCC broadcast system violates the First Ammendment

It is how easy it is to access a video channel from your living room TV.

That depends on the T.V, and whatever software it is running, and any video devices attached to it. A box running Kodi makes it quite easy. The big content companies hate Kodi, not because of piracy, but rather because it makes it easy for people to find and watch content other that theirs.

Just having a channel number is actually less useful than an URL to a YouTube channel. Without a more meaningful directory, and associated search capabilities, assigning channel number does not solve the problem you think it does, because there would be too many channels for people to flick through at random.

Anonymous Coward says:

Re: Re: Re:4 The entire FCC broadcast system violates the First Ammendment

Ah, I misunderstood. You don’t want to use the current broadcast TV technology, you want to use the internet to have a specific IP address associated with something like a channel number that people can sign up for and their TV’s then connect to that channel number which routes back to an IP address with a TV stream.

I believe this is called Youtube, Hulu, Netflix, Vimeo, etc… take your pick. There is no need for a new scheme, and people area already starting to leverage it. Also, as someone else said, there is also Kodi.

TKnarr (profile) says:

Re: The entire FCC broadcast system violates the First Ammendment

Aside from the fact that VHF and UHF spectrum in the ranges allocated for TV broadcasts (and in practice it’s only the VHF bands that are available, most homes that have antennas don’t have UHF antennas), there’s physical plant involved. TV broadcast transmitters and antennas need to be tuned to the channel frequency being used, which for those frequencies and power levels requires specific transmitter hardware and antenna emitter element physical dimensions. If a TV station doesn’t know what channel it’ll be assigned, it can’t build it’s broadcast station or it’ll have to make very expensive physical changes to the existing one. Hence why broadcast licenses are virtually permanently nailed down: changes are just too disruptive to let happen for reasons short of ones that’ll put the station out of business permanently.

Legacy communications channels have a lot of inertia associated with them that don’t exist with Internet technology that was designed to easily handle multiple channels of traffic over the same physical infrastructure.

Anonymous Coward says:

Re: The entire FCC broadcast system violates the First Ammendment

There are a limited number of TV channels, and they have to allocated in a cellular radio fashion, so that station using the same channels do not interfere with each other. In simple terms this means surrounding stations use different channels.

Fiber and copper do not have these limitations, because each copper pair, and each fiber have the same bandwidth, and can be run next to each other without interference.

By the way, mobile phones do have a limited number of channels, and while capacity can be increased by using smaller cell sizes, there is a limit to how far this can go, as a cell per house, with a fiber feed to the cell gives less bandwidth than a direct connection to the fiber.

streetlight (profile) says:

What's the penalty for violating the 1st ammendment?

First, would the violation be criminal or civil? I suppose threatening violence could be criminal and subject to the penalties associated with criminal activity such as fines and prison time. Civil penalties might involve fines. The 1st amendment doesn’t specify penalties for it’s violation so some law must exist that sets them which could be at the local, state or federal level. Options might include job loss.

Anonymous Coward says:

Re: What's the penalty for violating the 1st ammendment?

Given that the violator is a government actor operating under the color of law, it’s a 18 USC 242 violation — which is indeed criminal, and can lead to fines and prison time (not to exceed one year in a non-aggravated case).

Or to be precise (emphasis mine):

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

Kal Zekdor (profile) says:

Re: Re: What's the penalty for violating the 1st ammendment?

A little bit of research indicates that your interpretation seems to be the commonly accepted one, but that law is ambiguously worded… The section regarding racial motivation, as written, could be read as applying to the deprivation of rights. Guess it’s one of those "spirit of the law" vs. "letter of the law" things.

(Also a good example of why law is hard. It’s not enough to just know the laws, you also need to know how they’re commonly interpreted and applied.)

Anonymous Coward says:

I embrace no political labels.

All politicians are human and have flaws. I just dislike that it feels like not enough people hate Trump for being (yet another) bad politician than an immoral person, when the former is likely to leave much more of an impact during his term as president.

We secretly like assholes because they walk over people and get things done. But when an asshole starts doing things we dislike, suddenly they were wrong to be an asshole to get things done in the first place.

I dislike Trump because he’s impulsive, arrogant and not able to really connect with people on a down-to-earth basis. That’s what businesspeople are like: able to make deals, but not able to understand people when divorced from the business aspect of it. He can’t be a good president if he’s only aware of the “business” part of his constituency.

But I’d also hate it if he sanitized himself to be a “good person”. Then he’d really be no different from any other politician, who pretty much submerges their real selves into the goo of “good PR”.

If anything, he’s probably the most self-transparent person in office yet, if unwittingly.

Still don’t like him as a person, either. But I’m willing to let that slide because there is no rule saying a person who’s “bad” can’t think of any good ideas. Again, whether he actually does do many good things is subjective, but we can’t blindly ignore somebody because they’re an asshole.

There’s no law against being an asshole. And if there’s something else he can be lawfully charged for to prove his incompetence, fine, get the evidence and convict him.

But I’ll listen to him until then, even if I don’t believe in him as a good president or in much that he says. (Not American, for the record.)

takitus (profile) says:

Twitter threats

This situation shows how important it is that the validity of Trump’s
Twitter statements be legally established. Threats like these might already have resulted in legal or congressional action had they been made in person, but seem to get brushed aside because “it’s just social media”.

If a joke made on Twitter can be a crime for an “ordinary” citizen,
perhaps it’s time that political elites be held to the same standard.

btr1701 (profile) says:

Two Courts Said the Exact Same Thing?

Masnick first quotes Posner’s ruling in the case, then later in the article he quotes from the Molinari case, and both quotes are word-for-word duplicates of each other.

Did both courts in different circuits not only reach the exact same conclusion, but also, against all odds, do so by writing the exact same opinion, verbatim?

Daniel Audy (profile) says:

Re: Two Courts Said the Exact Same Thing?

Not sure about this particular case but it is very, very common for courts to verbatim use the same language when ruling on similar issues. The main reason is that they are often referencing or directly quoting the prior decision (since while not bound by out of circuit decisions they offer significant deference to them) and because doing so prevents pedants from trying to argue that two extremely similar decisions are actually functionally different because they used marginally different verbiage.

Anonymous Coward says:

Another thing too, that yanking its license would only to broadcast TV. The only Trump could yank is its licenses to operate the over the air stations it owns.

NBC affiliates not owned by NBC would not be affected by this.

Also, since NBC owns Comcast, it could still transmit programming over its cable networks, which does not an FCC license.

Since MSNBC and CNBC are cable-only channels, they not need an FCC license to operate.

All that yanking their license will do is cause NBC to make all of its programs cable-only, where FCC licensing is not required.

Token Canadian says:

Free Speech vs. Defamation/Libel

Can one of you American free speech experts please explain to my Canadian ass the difference between legal free speech and illegal defamation/libel, in the context of the mainstream media spreading lies about public figures? The line is incredibly blurry to me from where I’m standing.

Token Canadian says:

Re: No Joke, Serious Question

I really do want to know where the line is drawn.

Considering there are very real consequences a person faces when being falsely and very publicly accused as a rapist/nazi/pedophile/whatever, such as job loss, public violence, personal costs involved with moving or increasing security, why shouldn’t there be consequences for when the media speaks these lies to pretty much every drooling idiot in the nation hanging onto their every word?

Sure, I don’t agree that a private citizen should have their speech limited in such a way, but perhaps this is evidence that we should stop with this "corporations as people" crap once and for all. Why are we allowing media organizations to claim that a chain of offices located all over the world has a collective "personhood", despite its immortality, its ability to exist in multiple nations at once, and its inability to fit comfortably within a jail cell without breaking the laws of physics? By comparison to people, including the most powerful people, multinationals are GODS. We need different rules for them than we have for ourselves.

They have so much money that fact-checking should be easier for them than any local police department, so why aren’t they being held to task? Trump doesn’t seem to be talking about taking away private citizens rights to speak freely, it seems to me he’s talking about taking away large corporations rights to speak irresponsibly, stupidly and incitefully.

Mike Masnick (profile) says:

Re: Free Speech vs. Defamation/Libel

Can one of you American free speech experts please explain to my Canadian ass the difference between legal free speech and illegal defamation/libel, in the context of the mainstream media spreading lies about public figures? The line is incredibly blurry to me from where I’m standing.

It’s not even remotely blurry. It’s quite clear and has been widely applied. The standard is clearly laid out in the key case NYT v. Sullivan:

Thad (user link) says:

Re: Free Speech vs. Defamation/Libel

Can one of you American free speech experts please explain to my Canadian ass the difference between legal free speech and illegal defamation/libel, in the context of the mainstream media spreading lies about public figures?

Well, thing one is, a true statement is never defamatory.

Thing two is, an opinion is also generally not defamatory, because it is neither true nor false.

An opinion can imply false facts, in which case it is defamatory. If you state an opinion and suggest that it’s based on some information you have that the public is not privy to, and you actually don’t, then the opinion can be defamatory.

If, on the other hand, you state an opinion and then a bunch of verifiable facts that you’ve based that opinion on, you’re in pretty good shape for a free speech defense.

So there’s the truth-versus-falsity standard. On top of that, harm has to occur. A false statement that doesn’t cause any harm is not defamatory.

So that’s the standard for defamation for a private person: a statement has to be false, and it has to cause harm.

For public figures, the standard is higher. To defame a public figure, stating false and harmful information is not enough; you have to either know that the information is false, or show disregard for whether it’s true or false.

If a news outlet cites sources for a story, then it’s generally in pretty good shape for showing that it did some research, and does not believe the things it’s saying are false — but allows viewers/readers to check those sources and make up their own mind.

While I am generally sympathetic to arguments against corporate personhood, I think you’re completely off-base in saying that freedom of the press should not apply to corporations. Corporations are the only entities with the wealth and the clout to cover some stories (war correspondence and investigative journalism are a couple of examples).

Harvey Weinstein’s been in the news recently. Among other things, he’s threatened both publishers and individual writers with defamation lawsuits. (So far, they have come to nothing, and his attorney, one Charles Harder, who you may have seen mentioned previously on this site, recently quit.)

I want to make something very clear to you: what you are suggesting, any sort of weakening of press protections, any broadening of the definition of defamation, helps people like Harvey Weinstein (and, not to put too fine a point on it, people like Donald Trump). You are suggesting that it should be harder for the press to report on misdeeds by the rich and powerful, and easier for the rich and powerful to retaliate against the press for doing so.

Shane (profile) says:

Liberal Lying Liars Lie

It’s not about printing whatever you want. It’s about a sustained effort to promote lies. And Trump is right. SOMETHING needs to be done about it.

The NFL promotes cop killers. NBC promotes cop killers. Mike Brown attempted to kill officer Wilson, and liberal media dishonestly promoted hands up don’t shoot for weeks, maybe months.

It never happened. Most of these so called bad shootings by police never happened.

Blacks kill twice as many whites a year as the reverse despite making up a paltry 13% of the population.

The legacy media and the NFL lie to promote murder, partly to hold on to their media monopolies. And TechDirt pretends to be against legacy media.

I guess you were against them before you were for them.

Shane (profile) says:

Re: Re: Liberal Lying Liars Lie

I hate to argue with you because fundamentally I agree. But blacks are bearing the brunt of the DNC’s reckless and self destructive attempt to promote change through panic and violence.

Poor people of no other race are anywhere near as self destructive. Other races that LOOK very different still do better, so it is obviously not about appearance.

It is about the DNC giving its wholehearted blessing through every media outlet to black self destruction for the sake of their political agenda.

And I will add that socialism just in general is stupid, which does not help matters. We need bank reform toward 100% reserve commodity money again, LLC reform to force labor representation in the boardroom, and something TechDirt USED TO TALK A LOT ABOUT – IP reform to free up competition among the common folk.

Anonymous Coward says:

Re: Re: Re: Liberal Lying Liars Lie

Well, when it comes to BLM, race riots, identity politics, etc., those participants have what’s coming for them and I’d personally love to see them all behind bars for being such a public nuisance. They lost my support the moment they started blocking highways just to make a point. I’d have hosed them all off the streets if it were up to me.

That aside, there still is a very real bias towards blacks among cops. I don’t even live in the United States and my city still has a huge problem of black youths being stopped and frisked without cause all the time. As a white guy who hung out in more than enough shady communities and currently still is living in one, I’ve still to this day never been randomly frisked and I’m pretty sure why. If they scrutinized me as much as they did blacks, I’d be up on all sorts of charges for carrying drugs and concealed weapons around with me, which I do on an almost regular basis.

Combine this with a pay-to-win legal system that overtly uses its discretion to go lenient on criminals if they “show promise” (read: economic and educational background) and yeah, there still are some real problems with racial inequity as a result of both poverty and racial bias on all levels of the justice system.

It’s just really sad that the alt-left extremists are making it hard to make a rational argument that might exist somewhere among all their crazy sabre-rattling. They’re sure doing a great job making their own supposed causes more impossible to achieve by actively ruining their own credibility through their actions.

tl;dr: where are we going and why are we in this handbasket

Shane (profile) says:

Re: Re: Re:2 Liberal Lying Liars Lie

It’s nothing to do with alt-anything. A big part of racism against blacks and other so called indigenous people stems from the backwards nature of their cultures when Europeans first discovered them, and it is not sensible to act like we do not understand this.

Black people are disliked because black people do things people dislike, and the moment they stop doing that sort of thing, people get past it.

There’s no group of people more bizarre looking on the face of the earth compared to everyone else than the far east Asians, and they suffer nothing like this kind of prejudice.

We have been driven to a point by the mainstream socialist movements that we are not allowed to point out that there are a lot of BAD THINGS about the non European cultures, still, to this day, that have nothing to do with Europeans. They were like this before we got there.

It’s not an excuse for taking advantage of them as we have done and SOMETIMES continue to do, but we cannot allow politicians with agendas mostly bound up in making themselves rich convince us to abandon common decency and common sense.

And the NFL and NBC are among the leading causes of our abandonment of common decency and common sense.

Anonymous Coward says:

Re: Re: Re: Liberal Lying Liars Lie

Regarding socialism: Yes, it’s stupid, as a system of government. So is everything else that ends in -ism, as a system of government, because it results in too much rigidity.

But as a philosophy that a flexible government can borrow bits and pieces from, there are ideas it brings to the table that do quite well in fighting all kinds of problems from poverty to disease to crime, when implemented correctly. Please note the bold words, I know corruption and bureaucracy can screw up any good political idea, I am Canadian after all :).

I see ideas such as guaranteed basic income as a good realistic long-term replacement to the concept of a minimum wage, as we face the increasing threat of automation replacing jobs. Universal health care can bring down rates of disease and improve the health of the workforce, because the citizens can engage in preventive health care, getting check-ups for free rather than letting their symptoms and contagiousness fester and worsen as they keep trying to figure it out for themselves on WebMD because a check-up would cost them over $100. Friggin’ homeless people can get check-ups. Homeless people! I don’t have to worry about homeless people coughing on me? Sign me up!

I also think we should tax the living hell out of big corporations to pay for these things because why the hell not, they have a lot more money than individual taxpayers do. But this is already becoming a tangent and I didn’t mean for this to get too preachy.

Socialism also has really glaring problems, like the lack of property ownership severely disincentivizing growth of business and pursuit of wealth, which is stupid if you want any stimulus to naturally occur in your economy.

All in all, this is why governments, as well as the people who vote for them, shouldn’t get caught up in the -isms, and instead involve themselves in ideas, objectively, regardless of what philosophy they may or may not belong to, without dismissing something simply because it’s "not they way we do things here."

Pick a few municipalities and do some pilot projects. Attack this scientifically, not ideologically. That’s how we should govern. That’s how we should vote.

But that’s just me.

Shane (profile) says:

“I see ideas such as guaranteed basic income as a good realistic long-term replacement to the concept of a minimum wage…”

We don’t even have a rational minimum wage. We do not need minimum wages or basic income. We need guaranteed access to land and information. What socialism says about that that makes sense is we currently have a monopoly on the means of production. Everything after that is nonsense. We need to break the monopolies on strategically important things like land and informaiton.

Which, again…. TechDirt USED to be useful for discussing that kind of thing. Just… not anymore. Because OMFG TRUMPTRUMPTRUUUUUUUMP!

“Universal health care”

Good luck forcing a tiny handful of professionals with the power of life and death, pain and pleasure in the plams of their hands while you forbid competition with socialistic reforms.

“Tax the living hell out of big corporations.”

Limited liability should not even exist. How do you let the people at the head of an organization be protected by law when they give orders that hurt employees or customers? LLC’s are a farce. Rational, reasonable judges are what we need, not blanket protection for leaders.

I will be more than happy to denounce capitalism, which is really nothing more fancy than the rule of the rich. Socialism is about expanding the rule of the rich, moving it into the government, and pretending elections that we can all see now are already rigged would somehow magically result in people controlling their own destiny.

You can’t be free unless you are FREE. Slavery is not freedom.

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