Commentary

First Amendment on Sinclair’s Side

This article originally appeared on Foxnews.com, October 16, 2004.

Someone always has a reason to suppress freedom of speech. The latest evidence for that grim truth can be found in the controversy over the Sinclair Broadcasting Group’s plan to air a program criticizing Sen. John Kerry’s anti-war activities in the 1970s.

First, some facts. A journalist named Carlton Sherwood is producing a film entitled “Stolen Honor: Wounds that Never Heal.” In the program, some former prisoners of war in Vietnam say that Sen. Kerry’s antiwar activities after he returned home emboldened their Vietnamese captors and lengthened their ordeal.

The Sinclair Group has decided to run “Stolen Honor” next week on its 62 stations which together potentially can reach about 24 percent of the national television audience. Sinclair executives have decided the film will be offered as news programming in the context of the upcoming election.

The response to Sinclair’s plans has been heavy-handed threats. Seventeen Democratic U.S. senators have written a letter to the Federal Communications Commission asking for an investigation of Sinclair’s plan to air the film. They allege that broadcasting the film violates the letter and spirit of current laws.

The senators’ letter is pure intimidation of the media. No television station may operate without a license from the federal government. Indeed, those licenses are the most important asset of a station or network. The FCC awards licenses under the supervision of Congress. The meaning of the senators’ letter is clear: if the Sinclair runs “Stolen Honor,” their applications to renew their station licenses may be in doubt, especially if Democrats have a working majority in Congress.

Democrats also attacked on the campaign finance front. Party leaders plan to complain to the Federal Election Commission that broadcasting “Stolen Honor” constitutes an in-kind contribution to President Bush’s campaign. The Democrats say the film is a long, “attack ad” aimed at their presidential candidate and not news programming. By going to the FEC, the Democrats hope to force Sinclair to choose between not running the film and going to jail.

Federal campaign finance law now prohibits advertising that mentions a federal candidate for 60 days prior to a general election if the ad is funded by a corporation. The law does grant an exemption from this prohibition for news programming. If the FEC concludes that running “Stolen Honor” is not news, the Sinclair Group will have to decide to not run the film or to continue with their plans and risk fines or imprisonment. Democratic Party leaders are betting the broadcasters will choose the former, thereby suppressing criticism of Sen. Kerry in battleground states.

Let’s be honest. Sinclair is in hot water with Democrats because of the content of the speech they plan to broadcast. Democratic leaders and the 17 Democratic senators do not like what “Stolen Honor” says about Sen. Kerry. They are afraid it will cost him the presidency. Consequently, they are threatening the Sinclair group with fines and jail to prevent the film being shown.

Republicans, however, will have a hard time taking the moral high ground on this issue. Republicans disliked the content of Michael Moore’s film “Fahrenheit 9/11,” and at the time of the film’s release, many argued that the film constituted illegal political advertising. If a network had decided to show Moore’s film just before the election, some Republican senators might have asked the FCC and FEC to investigate the network. The GOP would have asked the FEC to define Moore’s film as a corporate-sponsored ad and hence, illegal. Certainly the Republicans tried hard to get the FEC to criminalize the electoral activities of certain 527 groups affiliated with the Democratic Party.

Free speech is in the public interest. Voters benefit from having more information rather than less in the weeks prior to an election. Candidates and political parties see free speech in a more self-interested light. Free speech can cost them the presidency or control of Congress. Everyone—Democrats, Republicans, and third parties—striving for power at one time or another wants to suppress free speech.

Recognizing this conflict of interest between the voters and politicians, the American founders adopted the First Amendment to protect freedom of speech. The Constitution thus assures that the public interest in the free flow of information trumps the lust for power of candidates and political parties.

This election has stirred deep passions among some Americans. So strong are those passions that everyone is in danger of forgetting a larger truth. The American republic will survive a Kerry or Bush victory this November. It will not survive government control over political speech.

John Samples is director of the Center for Representative Government at the Cato Institute.