Fuld transskription af Equal Time, Stephen Colbert, and the Future of Political Broadcasting | Eugene Volokh and Jane Bambauer | Hoover Institution

out only licenses to use spectrum. 42 00:02:02,940 --> 00:02:07,320 This was first discussed extensively in a case from 1943 NBC 43 00:02:07,320 --> 00:02:10,950 versus United States, in which the Supreme Court said 44 00:02:10,950 --> 00:02:13,710 that the spectrum is uniquely scarce. 45 00:02:13,710 --> 00:02:17,340 And so it requires that the government control the spectrum 46 00:02:18,210 --> 00:02:22,470 and, and thus that, thus the licensing regime makes sense. 47 00:02:22,470 --> 00:02:27,390 And then fast forward to 1969, there was a challenge 48 00:02:27,390 --> 00:02:30,570 to what is known as the fairness doctrine in the court. 49 00:02:30,570 --> 00:02:35,130 In Red Lion, again, relying on spectrum scarcity said 50 00:02:35,130 --> 00:02:40,130 that it is totally appropriate for 51 00:02:40,140 --> 00:02:43,110 and legal for the government to 52 00:02:43,110 --> 00:02:46,680 impose the fairness doctrine on broadcasters 53 00:02:46,680 --> 00:02:51,060 because in, in, in light of this scarcity, there won't, 54 00:02:51,060 --> 00:02:53,820 there has to be some rationing of voices. 55 00:02:53,820 --> 00:02:56,010 And this was also consistent with a, a view 56 00:02:56,010 --> 00:02:58,590 of the First Amendment as actually 57 00:02:58,590 --> 00:02:59,650 empowering the government. 58 00:02:59,650 --> 00:03:02,980 And so the government actually had an appropriate role in 59 00:03:02,980 --> 00:03:05,440 ensuring that we, the people were exposed 60 00:03:05,440 --> 00:03:07,780 to a wide range of voices. 61 00:03:07,780 --> 00:03:10,720 Now, at that point, there was no reason to think 62 00:03:10,720 --> 00:03:15,310 that there was anything unique about broadcast regulation. 63 00:03:15,310 --> 00:03:17,470 And so five years later, 64 00:03:17,470 --> 00:03:20,590 when the Supreme Court considers Miami Herald v Tornillo 65 00:03:20,590 --> 00:03:24,130 involving the exact same kind of rule as applied 66 00:03:24,130 --> 00:03:27,850 to newspapers, of course the briefs in, in support 67 00:03:27,850 --> 00:03:30,940 of Tornillo cited Red Lion pa, right? 68 00:03:30,940 --> 00:03:33,700 Red Lion is a good principle that applies across the board. 69 00:03:34,810 --> 00:03:39,760 And the, and the Supreme Court did not discuss Red Line 70 00:03:39,760 --> 00:03:43,000 and, and said that it was absolutely unconstitutional 71 00:03:43,000 --> 00:03:46,060 to have the exact same sort of re regime that applies 72 00:03:46,060 --> 00:03:48,760 to print, then broadcasting. 73 00:03:48,760 --> 00:03:50,770 So all of a sudden something that could have been a rule 74 00:03:50,770 --> 00:03:55,360 that applied across the board wasn't same kind 75 00:03:55,360 --> 00:03:57,970 of thing happened with respect to indecency. 76 00:03:57,970 --> 00:03:59,710 Some of the things just to get ahead of where we are 77 00:03:59,710 --> 00:04:03,040 with some of the, of the things that Brendan Carr has done, 78 00:04:03,040 --> 00:04:06,310 or he wants to prevent

certain kinds of harmful programming, 79 00:04:06,310 --> 00:04:07,510 which is separate from equal time. 80 00:04:07,510 --> 00:04:12,460 But in any event, that would rely on a case called 81 00:04:12,460 --> 00:04:17,350 Pacifica in involving the broadcasting of indecency, 82 00:04:17,350 --> 00:04:19,540 Supreme Court said, broadcast is unusually, 83 00:04:21,310 --> 00:04:23,260 is unusually pervasive. 84 00:04:23,260 --> 00:04:26,140 And, and so the government has a, 85 00:04:26,140 --> 00:04:28,060 an interest in regulating it. 86 00:04:28,060 --> 00:04:30,460 And then Congress and it's wisdom chose 87 00:04:30,460 --> 00:04:32,830 to regulate indecency on every other major means 88 00:04:32,830 --> 00:04:36,220 of communication, telephone, cable, 89 00:04:36,220 --> 00:04:37,750 television, the internet. 90 00:04:37,750 --> 00:04:42,130 In every one of those cases, Pacifica was pa in the, 91 00:04:42,130 --> 00:04:44,290 in the government's brief cited over and over again. 92 00:04:44,290 --> 00:04:46,780 And in every one of those cases, the court said, no, no, no, 93 00:04:46,780 --> 00:04:48,940 actually this is different. 94 00:04:48,940 --> 00:04:50,440 Broadcasting is special. 95 00:04:50,440 --> 00:04:54,340 So we have this regime of the specialness of broadcasting. 96 00:04:54,340 --> 00:04:55,810 And again, to be clear, 97 00:04:55,810 --> 00:04:58,420 red Line is more directly relevant to equal time. 98 00:04:58,420 --> 00:05:00,100 I'm just trying to give the big picture. 99 00:05:00,100 --> 00:05:03,940 We have a regime that is now broadcast specific. 100 00:05:03,940 --> 00:05:08,020 It wasn't designed necessarily as being broadcast specific. 101 00:05:08,020 --> 00:05:10,510 Many people after Red Line was decided, 102 00:05:10,510 --> 00:05:14,140 thought it would be a springboard to a very different vision 103 00:05:14,140 --> 00:05:16,510 of communications regulation 104 00:05:16,510 --> 00:05:19,900 that would empower the government to apply all sorts 105 00:05:19,900 --> 00:05:23,410 of things that would be like equal time rules. 106 00:05:23,410 --> 00:05:27,040 It's just not how the case law developed. 107 00:05:27,040 --> 00:05:29,170 Now, if I can just give one more minute. 108 00:05:29,170 --> 00:05:33,550 Now, on the statutory side, the equal time rule applies 109 00:05:33,550 --> 00:05:35,350 to broadcasters, 110 00:05:35,350 --> 00:05:38,800 but you could easily imagine that a later congress, 111 00:05:38,800 --> 00:05:41,830 if the case law had worked out differently, would've then 112 00:05:41,830 --> 00:05:43,840 extended that and applied that to cable again, 113 00:05:43,840 --> 00:05:45,490 to cable television, who knows what 114 00:05:45,490 --> 00:05:47,980 to the internet, et cetera. 115 00:05:47,980 --> 00:05:49,330 Given the way the case is developed 116 00:05:49,330 --> 00:05:54,045 and given, you know, various, various changes on the court 117 00:05:54,045 --> 00:05:56,110 and and off, I think that that

118 00:05:56,110 --> 00:05:57,470 that was never gonna go anywhere. 119 00:05:57,470 --> 00:05:59,450 And so it just never went anywhere. 120 00:05:59,450 --> 00:06:03,050 So we now have a, a constitutional regime 121 00:06:03,050 --> 00:06:04,490 that is broadcast specific 122 00:06:04,490 --> 00:06:07,940 and a statutory regime that is broadcast specific. 123 00:06:07,940 --> 00:06:09,920 - Well, great that you laid it out for us. 124 00:06:09,920 --> 00:06:12,320 Maybe not a great regime, by the way, I should say 125 00:06:12,320 --> 00:06:14,870 for the benefit of, of our listeners who, 126 00:06:15,740 --> 00:06:19,970 who don't speak Latin Stewart when he was saying cited pass 127 00:06:19,970 --> 00:06:22,400 or passives d pronounced different ways. 128 00:06:22,400 --> 00:06:27,170 It's the way we lawyers learn, learn this, 129 00:06:27,170 --> 00:06:28,610 this mixture of English and Latin. 130 00:06:28,610 --> 00:06:32,720 It basically means cited throughout, throughout a document. 131 00:06:32,720 --> 00:06:34,190 - The joke just for the benefit of listeners, 132 00:06:34,190 --> 00:06:36,470 the joke being in a brief, if you sign, 133 00:06:36,470 --> 00:06:38,540 if you cite something on eight different pages, 134 00:06:38,540 --> 00:06:39,890 you list the eight different pages. 135 00:06:39,890 --> 00:06:41,780 If you cite it on every other page, 136 00:06:41,780 --> 00:06:43,190 you don't even bother listing the pages. 137 00:06:43,190 --> 00:06:44,060 So you just, it's just 138 00:06:44,060 --> 00:06:45,950 understood. It's throughout your brief. 139 00:06:45,950 --> 00:06:47,360 - Exactly. But, 140 00:06:47,360 --> 00:06:52,360 but Stewart's point was that all of these 141 00:06:52,520 --> 00:06:56,600 broadcast precedents were cited throughout in all follow on 142 00:06:56,600 --> 00:07:00,410 cases where people tried to apply them to, to newspapers, 143 00:07:00,410 --> 00:07:01,460 to the internet and such. 144 00:07:01,460 --> 00:07:04,940 And the court said, ended up saying over time, Nope, nope, 145 00:07:04,940 --> 00:07:06,650 that's broadcast, that's different. 146 00:07:06,650 --> 00:07:08,810 So we do have this, this weird regime, 147 00:07:08,810 --> 00:07:12,560 and we do have the statute tell us specifically about the 148 00:07:12,560 --> 00:07:13,910 equal time rule. 149 00:07:13,910 --> 00:07:16,670 Because the broad, the, excuse me, the fairness doctrine 150 00:07:16,670 --> 00:07:18,470 of course was, 151 00:07:19,670 --> 00:07:22,370 was rejected even though it was upheld 152 00:07:22,370 --> 00:07:25,640 by the Supreme Court in 1969, in the 1980s. 153 00:07:25,640 --> 00:07:28,550 It was rejected by the Federal Communications Commission 154 00:07:29,510 --> 00:07:30,590 as in fact 155 00:07:30,590 --> 00:07:33,560 as being in fact unconstitutional even though the 156 00:07:33,560 --> 00:07:34,820 Supreme Court had upheld it. 157 00:07:34,820 --> 00:07:37,370 But in any event, the FCC was entitled to say, 158 00:07:37,370 --> 00:07:40,280 we no longer think this is called for here, 159 00:07:40,280 --> 00:07:44,270 but the equal time rule is a statute and it's still there. 160 00:07:44,270 --> 00:07:46,190 And it's different from the fairness doctrinal, 161 00:07:46,190 --> 00:07:48,800 though not completely unrelated. Tell us about the equal 162 00:07:48,800 --> 00:07:49,800 - Title. 163 00:07:49,800 --> 00:07:51,890 Sure. And let me also, and let me connect out the way it was 164 00:07:51,890 --> 00:07:54,830 interpreted on the fairness, doctrine, rejection point. 165 00:07:54,830 --> 00:07:58,580 So, so this is a statute, I mean, the first version 166 00:07:58,580 --> 00:08:01,040 of it was in the Federal Radio Act of 1927, 167 00:08:01,040 --> 00:08:04,160 but the version that we know was, 168 00:08:04,160 --> 00:08:09,160 was codified much later in 47 USE three 15 A. 169 00:08:09,470 --> 00:08:14,450 And it says that a broadcaster, if, 170 00:08:14,450 --> 00:08:16,970 if a broadcaster allows a political candidate 171 00:08:16,970 --> 00:08:19,760 to use its statement station, 172 00:08:19,760 --> 00:08:22,280 it shall afford equal opportunities 173 00:08:22,280 --> 00:08:25,610 to all the other candidates for that office. 174 00:08:25,610 --> 00:08:30,610 But importantly it has exemptions. 175 00:08:30,770 --> 00:08:35,300 And so that does not apply to bonafide 176 00:08:35,300 --> 00:08:39,530 newscast news interview, news documentary 177 00:08:39,530 --> 00:08:43,070 or on the spot coverage of bonafide news events. 178 00:08:43,070 --> 00:08:46,250 So there are these exemptions to the requirements. 179 00:08:46,250 --> 00:08:48,950 If you are not in one of those exemptions, 180 00:08:48,950 --> 00:08:51,560 so you have one candidate on, then you have 181 00:08:51,560 --> 00:08:54,110 to give equal airtime. 182 00:08:54,110 --> 00:08:56,490 So whatever it is, the the first candidate got, 183 00:08:56,490 --> 00:08:58,920 the other candidates have to get. 184 00:08:58,920 --> 00:09:01,500 So if you want to have a candidate on, 185 00:09:01,500 --> 00:09:04,020 and you don't wanna have all the candidates on, you want 186 00:09:04,020 --> 00:09:06,510 to fit into one of these exemptions. 187 00:09:06,510 --> 00:09:08,250 'cause just to be clear, if you don't fit into one 188 00:09:08,250 --> 00:09:10,890 of these exemptions, then you have to have the, you have 189 00:09:10,890 --> 00:09:14,430 to afford the candidate's opponents the same opportunities 190 00:09:14,430 --> 00:09:17,005 that you gave to the, to the candidate that you had on, 191 00:09:17,005 --> 00:09:18,870 on, on, on your show, 192 00:09:18,870 --> 00:09:19,870 - Right? 193 00:09:19,870 --> 00:09:22,290 So it's not a, the equal time rule is not a prohibition on 194 00:09:22,290 --> 00:09:23,610 having candidates on, 195 00:09:23,610 --> 00:09:27,510 but it's kind of a tax on having candidates on 196 00:09:27,510 --> 00:09:31,620 because if you have on a candidate whom you wanna

have on 197 00:09:31,620 --> 00:09:33,900 for various reasons you think their audience might like, 198 00:09:33,900 --> 00:09:37,950 or you just, you just want to support them, you then have 199 00:09:37,950 --> 00:09:40,500 to pay the tax in the form of having the rival 200 00:09:40,500 --> 00:09:45,500 or rival to the candidate on if they so ask. 201 00:09:45,840 --> 00:09:50,760 And so it's, it's a burden on, 202 00:09:50,760 --> 00:09:54,780 on the ability to put on, to put the 203 00:09:54,780 --> 00:09:55,980 candidate on your program. 204 00:09:55,980 --> 00:09:59,340 And probably all things being equal would tend to push 205 00:10:00,360 --> 00:10:02,910 broadcasters away from having candidates on 206 00:10:02,910 --> 00:10:05,190 because they don't wanna have, nobody likes to pay taxes, 207 00:10:05,190 --> 00:10:07,110 they wanna have to pay the tax. 208 00:10:08,040 --> 00:10:10,050 But of course there is this exception for, 209 00:10:10,050 --> 00:10:12,210 for bonafide in news. 210 00:10:12,210 --> 00:10:14,130 And the question is, what counts as bonafide in news? 211 00:10:14,130 --> 00:10:18,240 Tell us what has in the past counted as bonafide in news 212 00:10:18,240 --> 00:10:20,220 and what's going on with it. Now 213 00:10:20,220 --> 00:10:25,050 - The big change came in the Reagan administration under 214 00:10:28,200 --> 00:10:31,890 the FCC in the 1970s embraced the fairness doctrine, 215 00:10:31,890 --> 00:10:33,540 which again, plays out very similarly 216 00:10:33,540 --> 00:10:34,710 actually to equal time. 217 00:10:34,710 --> 00:10:37,240 It also in effect poses the tax then on, on, 218 00:10:37,240 --> 00:10:38,940 on carrying some things. 219 00:10:38,940 --> 00:10:40,650 And that was what was in, 220 00:10:40,650 --> 00:10:43,500 and it was that rationale that the court used in tornillo 221 00:10:43,500 --> 00:10:46,680 to invalidate a similar rule for new, for newspapers. 222 00:10:46,680 --> 00:10:49,110 So it was in the Reagan administration 223 00:10:49,110 --> 00:10:52,320 that they abandoned the fairness doctrine 224 00:10:52,320 --> 00:10:54,780 and that they broadened out these exemptions. 225 00:10:54,780 --> 00:10:56,220 And that is not a coincidence. 226 00:10:56,220 --> 00:10:58,830 I think that the Reagan administration probably thought 227 00:10:58,830 --> 00:11:00,510 that, I mean correctly, 228 00:11:00,510 --> 00:11:02,730 the equal time rule relies on exactly the same 229 00:11:02,730 --> 00:11:06,300 constitutional theory as the, as the fairness doctrine. 230 00:11:06,300 --> 00:11:08,370 And, but they couldn't repeal the equal time 231 00:11:08,370 --> 00:11:10,050 rule because it's in a statute. 232 00:11:10,050 --> 00:11:12,540 So what do they do? What do they have the authority to do? 233 00:11:12,540 --> 00:11:15,210 They have the authority to interpret the equal time rule 234 00:11:15,210 --> 00:11:16,585 as narrowly as possible. 235 00:11:16,585 --> 00:11:19,020 They, they can't get rid of

it. So what do they do? 236 00:11:19,020 --> 00:11:21,540 They start broadly interpreting it. 237 00:11:21,540 --> 00:11:25,080 So the first big broad interpretation involved a show 238 00:11:25,080 --> 00:11:28,470 involving someone named Phil Donahue, who, 239 00:11:28,470 --> 00:11:31,980 who had a daytime talk show where he would have guests 240 00:11:31,980 --> 00:11:33,480 and then he would go to the audience 241 00:11:33,480 --> 00:11:35,010 and he would talk to people in the audience. 242 00:11:35,010 --> 00:11:36,930 And sometimes he would have wanted 243 00:11:36,930 --> 00:11:38,130 to have political candidates on. 244 00:11:38,130 --> 00:11:41,610 And so, so they filed in, in, in the, in the FCC 245 00:11:41,610 --> 00:11:45,060 and the FCC initially said, no, you don't fall into any 246 00:11:45,060 --> 00:11:46,470 of these news exemptions. 247 00:11:46,470 --> 00:11:50,670 And then the FCC then versed itself, obviously under the, 248 00:11:50,670 --> 00:11:53,290 under the influence of the, of the Reagan chair 249 00:11:53,290 --> 00:11:57,520 and said, no, you actually fall under the news exemption, 250 00:11:57,520 --> 00:11:58,630 under equal time rules 251 00:11:58,630 --> 00:12:00,910 so you can have on a political candidate without having 252 00:12:00,910 --> 00:12:01,960 on their opponents. 253 00:12:03,490 --> 00:12:08,020 After that, there were a bunch of other cases involved. 254 00:12:09,880 --> 00:12:12,640 I don't know how many listeners will, will, 255 00:12:12,640 --> 00:12:17,080 will remember Jerry Springer, whose, 256 00:12:17,080 --> 00:12:21,280 whose programs generally tended toward titles like, 257 00:12:22,690 --> 00:12:23,920 am I really the father? 258 00:12:25,600 --> 00:12:28,690 And this was how, this was not news. 259 00:12:28,690 --> 00:12:31,120 Nobody, nope, nobody claimed this was news in any way, but 260 00:12:31,120 --> 00:12:33,550 nonetheless it it, it fell under the exemption 261 00:12:33,550 --> 00:12:36,340 for those unusual times when it might have a, 262 00:12:36,340 --> 00:12:38,050 a political, a political candidate. 263 00:12:39,670 --> 00:12:43,240 And then politically incorrect with Bill Maher, 264 00:12:43,240 --> 00:12:45,460 which was a discussion show was a politically 265 00:12:45,460 --> 00:12:46,840 inflicted, dis a discussion. 266 00:12:46,840 --> 00:12:49,990 But it talked about lots, lots of other things. 267 00:12:49,990 --> 00:12:53,380 The Tonight Show with Jay Leno and, 268 00:12:53,380 --> 00:12:56,920 and then perhaps the one that was the most hard to say, 269 00:12:56,920 --> 00:12:58,750 but this, this one might have been the most notorious, 270 00:12:58,750 --> 00:13:01,570 it certainly produced the most laughter was the Howard Stern 271 00:13:01,570 --> 00:13:05,530 Show when one of the great repost to that from, 272 00:13:06,400 --> 00:13:10,330 from somebody who was, who was critical of this, said, I'm, 273 00:13:10,330 --> 00:13:14,320 I'm quoting here when guests are selected by the size 274 00:13:14,320 --> 00:13:16,930 of their bust, it is not bonafide and news programming. 275 00:13:18,400 --> 00:13:22,120 And so after that series of cases, 276 00:13:22,120 --> 00:13:24,460 and this is the, so these I've, I've just run through cases 277 00:13:24,460 --> 00:13:27,940 that, that started in 1984 and, 278 00:13:27,940 --> 00:13:32,320 and Howard Stern was in 2003, it was quite clear to everyone 279 00:13:32,320 --> 00:13:35,350 that they were interpreting this news exemption very 280 00:13:35,350 --> 00:13:37,930 broadly, very caly 281 00:13:37,930 --> 00:13:42,100 and effectively were meaning that it would, 282 00:13:42,100 --> 00:13:43,930 it would rarely apply. 283 00:13:43,930 --> 00:13:46,330 And again, I think it was, it was a sense 284 00:13:46,330 --> 00:13:48,400 of the FCC wanting to constraint itself. 285 00:13:48,400 --> 00:13:49,870 It wanted to constrain itself in the context 286 00:13:49,870 --> 00:13:51,220 of the fairness doctrine, and it wanted 287 00:13:51,220 --> 00:13:54,310 to constrain itself in times of the, of the equal time rule. 288 00:13:54,310 --> 00:13:56,680 And this was a way of exercising that constraint. 289 00:13:56,680 --> 00:14:01,680 And the really interesting thing is that constraint held 290 00:14:02,050 --> 00:14:06,550 from Reagan through Trump won through Biden 291 00:14:06,550 --> 00:14:10,390 until, until January 20th, 2025. 292 00:14:10,390 --> 00:14:14,290 You know, this, this was a, this was a long consensus 293 00:14:14,290 --> 00:14:19,270 about in general constraining FCC broadcast regulation. 294 00:14:19,270 --> 00:14:21,550 I have, I have an article forthcoming in Eugene's journal on 295 00:14:21,550 --> 00:14:26,110 this very issue that was a longstanding consensus that 296 00:14:26,110 --> 00:14:28,360 that is now, that has now been disrupted. 297 00:14:28,360 --> 00:14:32,200 And let me turn now to the fccs implementation 298 00:14:33,340 --> 00:14:35,110 that it developed over the course 299 00:14:35,110 --> 00:14:37,750 of these various proceedings involving Donahue, 300 00:14:37,750 --> 00:14:39,490 Jerry Springer, et cetera. 301 00:14:39,490 --> 00:14:43,510 There were three and only three stated standards. 302 00:14:43,510 --> 00:14:46,990 One is that it's a regularly scheduled program, okay, 303 00:14:46,990 --> 00:14:48,640 that's not a very high bar. 304 00:14:48,640 --> 00:14:52,970 The second is that the producers of the program 305 00:14:52,970 --> 00:14:54,500 control the program. 306 00:14:54,500 --> 00:14:56,540 They mean producers as opposed to the broadcaster. 307 00:14:56,540 --> 00:14:59,210 So it doesn't look like, like the broadcaster is pulling the 308 00:14:59,210 --> 00:15:00,500 strings behind the scene. 309 00:15:00,500 --> 00:15:02,690 Again, that's a low bar for all of these programs. 310 00:15:02,690 --> 00:15:04,760 The producer controls the program. 311 00:15:04,760 --> 00:15:06,890 The third is 312 00:15:06,890

--> 00:15:10,070 that the producer's decision on format content 313 00:15:10,070 --> 00:15:13,130 and participants are based on newsworthiness 314 00:15:13,130 --> 00:15:14,780 and not an intention to advance 315 00:15:14,780 --> 00:15:17,000 or harm an individual's candidacy. 316 00:15:17,000 --> 00:15:21,260 Now that third element you could imagine having some bite. 317 00:15:21,260 --> 00:15:23,090 And what's interesting is 318 00:15:23,090 --> 00:15:25,820 nonetheless, when Arnold Schwarzenegger wanted 319 00:15:25,820 --> 00:15:27,770 to be on the Tonight Show, they said, oh yeah, 320 00:15:27,770 --> 00:15:30,170 this is clearly not about Arnold Schwarzenegger. 321 00:15:30,170 --> 00:15:32,150 It's, you know, it's fact that Arnold Schwarzenegger is a, 322 00:15:32,150 --> 00:15:33,680 is a prominent person. 323 00:15:33,680 --> 00:15:36,620 And when Howard Stern wanted to have various candidates on, 324 00:15:36,620 --> 00:15:39,320 it was, oh, Howard Stern, Howard Stern wants ratings, he's, 325 00:15:39,320 --> 00:15:41,780 you know, et cetera. 326 00:15:41,780 --> 00:15:45,530 And so again, you could imagine that somebody might look at 327 00:15:45,530 --> 00:15:46,760 what some of these shows did 328 00:15:46,760 --> 00:15:48,170 and said, no, I think the reason you're having this 329 00:15:48,170 --> 00:15:50,660 politician on is to help their candidacy. 330 00:15:50,660 --> 00:15:55,130 And the FCC consistently resolved that in favor 331 00:15:55,130 --> 00:15:59,330 of a broad exemption in favor of the broadcaster and 332 00:15:59,330 --> 00:16:01,880 therefore in, in favor of the broadcaster not having 333 00:16:01,880 --> 00:16:03,530 to comply with the equal time rule. 334 00:16:03,530 --> 00:16:08,530 - So that's very helpful summary, summary of the, 335 00:16:08,540 --> 00:16:11,510 the law and how, how things have traveled in some measure up 336 00:16:11,510 --> 00:16:15,260 until the most recent recent steps. 337 00:16:15,260 --> 00:16:16,460 So let's turn to them. 338 00:16:16,460 --> 00:16:18,260 So right now, this is all in the news 339 00:16:18,260 --> 00:16:23,180 because of the controversies involving both involving 340 00:16:23,180 --> 00:16:27,110 representative tele Rico who is running 341 00:16:27,110 --> 00:16:30,320 for the Texas Senate seat on, on the democratic side, 342 00:16:30,320 --> 00:16:33,020 but in the primary right now against a representative, 343 00:16:33,020 --> 00:16:35,990 Jasmine Crockett is his main main adversary, 344 00:16:35,990 --> 00:16:39,380 although there's, there's another third, 345 00:16:39,380 --> 00:16:41,210 third candidate in the primary as well. 346 00:16:41,210 --> 00:16:44,090 And he was on the view 347 00:16:44,090 --> 00:16:46,520 and that drew a reaction from the FCC. 348 00:16:46,520 --> 00:16:50,420 There was talk of him being on Colbert 349 00:16:50,420 --> 00:16:53,060 and then, then he wasn't. 350 00:16:53,060 --> 00:16:55,940 And an interesting question is who's behest

exactly, 351 00:16:56,780 --> 00:16:58,490 but tell us, tell us about that 352 00:16:58,490 --> 00:17:00,980 and how it fits within that legal framework. 353 00:17:00,980 --> 00:17:03,800 - When he was on the view at that time, 354 00:17:03,800 --> 00:17:05,420 Brendan Carr had some rumblings 355 00:17:05,420 --> 00:17:09,860 that maybe this was not consistent with the equal time rule. 356 00:17:09,860 --> 00:17:11,960 Nothing at least that we know of. 357 00:17:11,960 --> 00:17:14,540 Nothing particularly came of that. 358 00:17:14,540 --> 00:17:19,540 And then more recently you had the Colbert incident where, 359 00:17:19,850 --> 00:17:23,450 just to be clear, what Colbert said, I have no reason not 360 00:17:23,450 --> 00:17:27,350 to believe him, was that if he had tall Rico 361 00:17:27,350 --> 00:17:30,290 and he would have to have on the two people 362 00:17:30,290 --> 00:17:32,180 who were running against him. 363 00:17:32,180 --> 00:17:35,540 And, and the answer is, so it, it was not 364 00:17:36,620 --> 00:17:41,300 that CBS said you can't have Al Rico on period. 365 00:17:41,300 --> 00:17:43,430 It was your point about attacks. 366 00:17:43,430 --> 00:17:47,090 If you, if you, if you wanna have Al Rico on you, you, 367 00:17:47,090 --> 00:17:49,800 you're now gonna have to devote three times as many minutes 368 00:17:49,800 --> 00:17:51,840 to this sex to, to this Texas race 369 00:17:51,840 --> 00:17:55,680 as you had planned on, on devoting to it. 370 00:17:55,680 --> 00:17:58,620 And you know that just, just for somebody who has a show 371 00:17:58,620 --> 00:18:00,270 that's obviously they're gonna gonna 372 00:18:00,270 --> 00:18:01,620 gonna change the calculus. 373 00:18:01,620 --> 00:18:06,620 And then more recently the 374 00:18:07,050 --> 00:18:08,460 Brendan Carr has announced 375 00:18:08,460 --> 00:18:13,380 that they are in fact investigating the view, suggesting 376 00:18:13,380 --> 00:18:16,890 that maybe the view has not complied 377 00:18:16,890 --> 00:18:21,570 with the equal time rule by having on er Rico now 378 00:18:21,570 --> 00:18:25,350 to a point that you were implicitly getting at earlier, 379 00:18:25,350 --> 00:18:26,640 there's only technically a violation 380 00:18:26,640 --> 00:18:29,430 of equal time rule if somebody asks you for equal time 381 00:18:29,430 --> 00:18:30,570 and you deny it to them. 382 00:18:31,440 --> 00:18:33,270 But, so why would car be doing this? 383 00:18:33,270 --> 00:18:36,450 I think he would, he, he would in fact be saying 384 00:18:36,450 --> 00:18:38,070 we want someone to ask them for time. 385 00:18:38,070 --> 00:18:40,470 We, we will look favorably on someone who asks 386 00:18:40,470 --> 00:18:44,490 for equal time if their opponent has been on one 387 00:18:44,490 --> 00:18:48,180 of these programs of you, Colbert, et cetera. 388 00:18:48,180 --> 00:18:49,800 So there's not a technical violation. 389 00:18:50,670 --> 00:18:53,910 But the irony of this is the person who

has most conflated 390 00:18:53,910 --> 00:18:57,390 that in the recent past is Brendan Carr himself, who 391 00:18:57,390 --> 00:19:01,890 after Kamala Harris was on Saturday Night Live said 392 00:19:01,890 --> 00:19:05,850 this violates the equal time rule when the answer is no, 393 00:19:05,850 --> 00:19:07,200 it doesn't violate equal time rule 394 00:19:07,200 --> 00:19:09,180 unless she was running against Donald Trump at that point, 395 00:19:09,180 --> 00:19:11,040 unless Donald Trump asked for for equal time 396 00:19:11,040 --> 00:19:13,260 and his and has denied it. 397 00:19:13,260 --> 00:19:16,440 But you, you can understand colloquially why this, 398 00:19:16,440 --> 00:19:18,630 it is treated as a violate should equal time if you have 399 00:19:18,630 --> 00:19:20,160 only the one person on, 400 00:19:20,160 --> 00:19:24,390 because the, the assumption is you wouldn't, 401 00:19:24,390 --> 00:19:27,660 you wouldn't allow their opponent to go to go on. 402 00:19:27,660 --> 00:19:29,400 So that's at least the, the background 403 00:19:29,400 --> 00:19:31,860 of why some people conflate or 404 00:19:31,860 --> 00:19:34,890 or confuse what is the actual violation of the rule. 405 00:19:34,890 --> 00:19:38,250 Because just to be clear, nobody wants to have 406 00:19:38,250 --> 00:19:42,420 to devote three times as much airtime to a, to a race 407 00:19:42,420 --> 00:19:44,220 as they had, as they had planned to. 408 00:19:44,220 --> 00:19:46,770 And so that then just changes the calculus of 409 00:19:46,770 --> 00:19:47,970 what you're willing to have on your show. 410 00:19:48,900 --> 00:19:49,950 - Alright, so, 411 00:19:49,950 --> 00:19:52,470 so now I think we have the big picture laid out. 412 00:19:52,470 --> 00:19:55,050 It took a while because there's a lot to lay out. 413 00:19:55,050 --> 00:19:58,920 So from a first Amendment perspective there, 414 00:19:59,880 --> 00:20:03,720 the law does indeed give the government more authority to, 415 00:20:03,720 --> 00:20:06,030 to regulate broadcast radio and television. 416 00:20:06,030 --> 00:20:09,240 Maybe if the issue comes up to the court again, 417 00:20:09,240 --> 00:20:11,340 maybe the Supreme Court will say that was all a mistake. 418 00:20:11,340 --> 00:20:13,380 Certainly some justices have argued 419 00:20:13,380 --> 00:20:14,820 that Justice Thomas had argued 420 00:20:14,820 --> 00:20:16,740 that Justice Ginsburg had argued that it 421 00:20:16,740 --> 00:20:17,970 with regard to indecency. 422 00:20:19,320 --> 00:20:21,420 But right now that seems to be the rule. 423 00:20:21,420 --> 00:20:26,420 There's also the a statute that is, that 424 00:20:26,760 --> 00:20:28,380 does indeed mandate provision 425 00:20:28,380 --> 00:20:30,810 of equal title Congress did say so, 426 00:20:30,810 --> 00:20:32,370 but the statute has this exemption 427 00:20:32,370 --> 00:20:34,950 that the FCC has at times read 428 00:20:36,660 --> 00:20:39,300 more narrowly way back when then started 429 00:20:39,300 --> 00:20:42,540 to read very broadly and, 430 00:20:42,540 --> 00:20:45,120 and now is is reading narrowly again. 431 00:20:46,020 --> 00:20:48,220 So, so that's, so that's the issue. 432 00:20:48,220 --> 00:20:51,310 So on the one, so on one hand, 433 00:20:51,310 --> 00:20:53,680 you know the statute is out there. 434 00:20:53,680 --> 00:20:56,860 On the other hand, you know, the FCC has read it narrowly 435 00:20:56,860 --> 00:20:58,810 before, maybe it should keep reading it narrowly 436 00:20:58,810 --> 00:21:00,340 or maybe that was a mistake. 437 00:21:00,340 --> 00:21:02,290 So tho those are some of the questions I wanted 438 00:21:02,290 --> 00:21:04,510 to ask a bigger picture issue. 439 00:21:06,010 --> 00:21:07,240 I'd love to hear your thoughts, Stuart. 440 00:21:07,240 --> 00:21:09,550 I think I know your thoughts, but the audience doesn't know 441 00:21:09,550 --> 00:21:11,200 your thoughts and I'd love 442 00:21:11,200 --> 00:21:13,120 to hear Jane's views on this as well. 443 00:21:13,120 --> 00:21:18,040 So, so the equal time rule has one 444 00:21:18,040 --> 00:21:20,050 advantage over the old fairness doctrine. 445 00:21:20,050 --> 00:21:21,100 It is pretty clear. 446 00:21:22,060 --> 00:21:25,060 It doesn't just does maybe except 447 00:21:25,060 --> 00:21:28,360 for the the bonafide news exception, it doesn't say, well, 448 00:21:28,360 --> 00:21:30,490 for any kind of controversial issue you have 449 00:21:30,490 --> 00:21:33,010 to have responsible alternative views. 450 00:21:33,010 --> 00:21:35,500 And then whose alternative view do you present when there 451 00:21:35,500 --> 00:21:36,640 are so many different ones? 452 00:21:38,350 --> 00:21:41,110 If there's a race, there are usually particular candidates 453 00:21:41,110 --> 00:21:42,430 on the other side, although maybe in a 454 00:21:42,430 --> 00:21:43,510 primary it could be a lot. 455 00:21:43,510 --> 00:21:44,590 In this case there are three. 456 00:21:45,610 --> 00:21:48,010 So, so it's, it's relatively clear, 457 00:21:48,010 --> 00:21:50,800 and I take it, this would be the strongest argument I think 458 00:21:50,800 --> 00:21:53,020 for this, which is that when it comes 459 00:21:53,020 --> 00:21:55,120 to broadcasting regulations, there are actually two kinds 460 00:21:55,120 --> 00:21:56,500 of broadcasting regulations. 461 00:21:56,500 --> 00:21:58,390 One is the ones we've been talking about, 462 00:21:58,390 --> 00:22:00,670 like the old fairness doctrine, like the equal time rule. 463 00:22:00,670 --> 00:22:02,290 And those are the regulations 464 00:22:02,290 --> 00:22:04,960 that impose a modest burden on a tiny 465 00:22:04,960 --> 00:22:06,100 fraction of the population. 466 00:22:06,970 --> 00:22:09,460 Those people who have broadcast licenses. 467 00:22:09,460 --> 00:22:11,380 And there's a second kind of regulation, which is, 468 00:22:11,380 --> 00:22:15,070 it is illegal to broadcast without a broadcast license 469

00:22:15,070 --> 00:22:18,340 that imposes a massive burden on the overwhelming, 470 00:22:18,340 --> 00:22:20,440 overwhelming majority of population. 471 00:22:20,440 --> 00:22:25,090 So if I am, god forbid, running for office against, 472 00:22:25,090 --> 00:22:29,200 say Jane and I happen 473 00:22:29,200 --> 00:22:33,070 to have the ear of some talk show host 474 00:22:33,070 --> 00:22:36,280 or something like that, then 475 00:22:36,280 --> 00:22:40,240 the talk show host could have me on and then, but could, 476 00:22:40,240 --> 00:22:42,070 but if he could say no to Jane 477 00:22:42,070 --> 00:22:44,560 and Jane would have no, no alternative, 478 00:22:44,560 --> 00:22:47,830 unless she also has some friends who are talk show hosts. 479 00:22:47,830 --> 00:22:50,470 And if she just decides, oh, I'm just gonna go out there 480 00:22:50,470 --> 00:22:53,020 and broadcast myself the way, if it's a newspaper, 481 00:22:53,020 --> 00:22:55,300 you could maybe print up leaflets, 482 00:22:55,300 --> 00:22:56,530 hand them out on the street corner 483 00:22:56,530 --> 00:22:58,690 or whatever else it would be illegal for her 484 00:22:58,690 --> 00:23:00,520 to broadcast herself. 485 00:23:00,520 --> 00:23:04,090 So the argument would be that when it gets to 486 00:23:04,960 --> 00:23:07,570 elections, which are competitive things, where the, 487 00:23:07,570 --> 00:23:11,350 where the point is to have some relative equality 488 00:23:11,350 --> 00:23:13,150 between the candidates, at least when it comes 489 00:23:13,150 --> 00:23:16,630 to governmentally kind of supplied 490 00:23:16,630 --> 00:23:18,520 or supported resources, 491 00:23:19,630 --> 00:23:23,020 that when you've got this kind of, this kind 492 00:23:23,020 --> 00:23:26,200 of competitive process, it should be, 493 00:23:26,200 --> 00:23:27,340 it should be made fair. 494 00:23:27,340 --> 00:23:30,070 And once the government says, look, 495 00:23:30,070 --> 00:23:33,100 most people can't broadcast, you get the special, 496 00:23:33,100 --> 00:23:34,810 only people with a special government 497 00:23:34,810 --> 00:23:36,730 provided license can broadcast. 498 00:23:36,730 --> 00:23:40,270 The government ought to be able to say, well, 499 00:23:40,270 --> 00:23:42,010 if you do get the special government 500 00:23:42,010 --> 00:23:43,630 provided license, you've gotta be 501 00:23:43,630 --> 00:23:45,050 even handed in your treatment. 502 00:23:45,050 --> 00:23:47,120 The candidates. That strikes me 503 00:23:47,120 --> 00:23:50,330 as perhaps the stronger argument I could imagine making 504 00:23:50,330 --> 00:23:52,310 for the equal time rule. 505 00:23:52,310 --> 00:23:53,510 What do you think about that? 506 00:23:53,510 --> 00:23:55,940 - So a few things. So first I do think, 507 00:23:55,940 --> 00:23:58,190 and many other people think, I mean 508 00:23:58,190 --> 00:24:01,790 in some ways the key move here was the government's. 509 00:24:01,790 --> 00:24:05,180 If say, Dixie, we're gonna license, 510 00:24:05,180 --> 00:24:07,255 we're gonna license spectrum as opposed to, 511 00:24:07,255 --> 00:24:09,710 - And if say Dixon is Latin four more or less, just 512 00:24:09,710 --> 00:24:11,095 because we'd said so. 513 00:24:11,095 --> 00:24:12,320 - I I I will try to, I'll try 514 00:24:12,320 --> 00:24:15,950 to use less la la less Latin. It's 515 00:24:15,950 --> 00:24:17,555 - Okay, it's okay. 516 00:24:17,555 --> 00:24:19,310 - I - I just need to be there to interpret 517 00:24:19,310 --> 00:24:20,780 - And I'm - Bilingual. 518 00:24:23,135 --> 00:24:26,750 - So, so the, so the first thing is I, I do think a lot 519 00:24:26,750 --> 00:24:30,320 of this depends on the government's decision to license. 520 00:24:30,320 --> 00:24:31,820 And by the way that goes back, part 521 00:24:31,820 --> 00:24:33,530 of the reason I was emphasizing this NBC versus the 522 00:24:33,530 --> 00:24:36,080 United States case, which is why in the world does the 523 00:24:36,080 --> 00:24:39,140 government treat this differently from, from land? 524 00:24:39,140 --> 00:24:42,470 So, you know, economists find that ridiculous. 525 00:24:43,820 --> 00:24:48,170 So fine spectrum is scarce, everything that has more demand 526 00:24:48,170 --> 00:24:50,870 for supply than there is supply is scarce. 527 00:24:50,870 --> 00:24:52,550 And so there's nothing special about 528 00:24:52,550 --> 00:24:54,200 about spectrum in that point. 529 00:24:54,200 --> 00:24:58,460 So, so the first thing is to say yes in some ways the, 530 00:24:58,460 --> 00:25:01,430 the licenses are, are, are doing a fair amount of work. 531 00:25:02,570 --> 00:25:05,695 Having said that, I think there's two problems with the, 532 00:25:05,695 --> 00:25:08,870 the, the argu, the how much we can prove 533 00:25:08,870 --> 00:25:10,040 by the, the license argument. 534 00:25:10,040 --> 00:25:11,060 One of theoretical one 535 00:25:11,060 --> 00:25:14,810 and then one more practical one, the theoretical one is, 536 00:25:14,810 --> 00:25:17,660 okay, so what if the government says we're really worried 537 00:25:17,660 --> 00:25:20,570 about about steel 538 00:25:20,570 --> 00:25:22,940 and so we are gonna claim ownership 539 00:25:22,940 --> 00:25:25,160 of all steel in this country and, 540 00:25:26,540 --> 00:25:29,060 and we're not gonna let any imports in of steel. 541 00:25:29,060 --> 00:25:31,430 And by the way, that means then anybody 542 00:25:31,430 --> 00:25:33,680 who wants a printing press, it was made outta steel. 543 00:25:33,680 --> 00:25:36,200 So you'll have to come to us to get a license for the steel 544 00:25:36,200 --> 00:25:39,320 and we'll give out licenses on some 545 00:25:39,320 --> 00:25:41,750 reasonable rational basis. 546 00:25:41,750 --> 00:25:42,950 I don't have the slightest doubt 547 00:25:42,950 --> 00:25:47,630 that the Supreme Court would say, no, sorry, you may be able 548 00:25:47,630 --> 00:25:49,840 to license steel, but you

don't, that you, 549 00:25:49,840 --> 00:25:54,020 you can't leverage that into control over over newspapers. 550 00:25:54,020 --> 00:25:56,780 So I I don't think that the mere fact 551 00:25:56,780 --> 00:25:58,610 of the license ultimately really answers 552 00:25:58,610 --> 00:25:59,960 the, the theoretical question. 553 00:25:59,960 --> 00:26:02,720 And then there's the practical point, again, something 554 00:26:02,720 --> 00:26:06,230 that will be, that will be news probably to most 555 00:26:06,230 --> 00:26:07,880 of the listeners of this program. 556 00:26:07,880 --> 00:26:09,740 But in the 1970s, 557 00:26:09,740 --> 00:26:14,330 the three major television broadcast networks had a market 558 00:26:14,330 --> 00:26:16,400 share of more than 90%. 559 00:26:16,400 --> 00:26:19,250 So it really was the case 560 00:26:19,250 --> 00:26:23,030 that if your political opponent was on 561 00:26:23,030 --> 00:26:24,560 the local television station 562 00:26:24,560 --> 00:26:29,180 and you were not, this was a really serious problem 563 00:26:29,180 --> 00:26:31,580 for your political campaign. 564 00:26:31,580 --> 00:26:35,780 It's just not the world that we, that we live in anymore. 565 00:26:35,780 --> 00:26:40,040 Where for the vast majority of Americans, 566 00:26:40,040 --> 00:26:42,990 a broadcast station is just another, 567 00:26:42,990 --> 00:26:44,070 sorry to say another channel actually. 568 00:26:44,070 --> 00:26:47,640 It's just another stream that that, that they have, 569 00:26:47,640 --> 00:26:49,290 that they have access to. 570 00:26:49,290 --> 00:26:52,830 And so it just seems to me it's really hard now 571 00:26:52,830 --> 00:26:55,950 to make an argument that there's anything, 572 00:26:55,950 --> 00:26:59,460 there's anything particularly special about the, 573 00:26:59,460 --> 00:27:01,440 about the role of, of broadcasting. 574 00:27:01,440 --> 00:27:05,520 And if I could just add in that regard, note that 575 00:27:07,170 --> 00:27:09,870 Brendan Carr has never, has never suggested, oh, 576 00:27:09,870 --> 00:27:12,180 by the way congress, I think you should also extend these 577 00:27:12,180 --> 00:27:15,300 rules to cable television, for instance. 578 00:27:15,300 --> 00:27:20,250 So one way in which viewers I hope realize, so Fox News is, 579 00:27:20,250 --> 00:27:21,570 is a cable television program. 580 00:27:21,570 --> 00:27:25,500 So it is not subject, nothing on Fox News or 581 00:27:25,500 --> 00:27:27,240 otherwise could ever be subject to the equal time rules 582 00:27:27,240 --> 00:27:29,100 because it's not a, it's not a broadcaster. 583 00:27:29,100 --> 00:27:31,290 But if we think this is a great set of, a great set 584 00:27:31,290 --> 00:27:33,540 of rules, okay, why don't we go ahead 585 00:27:33,540 --> 00:27:38,310 and license the, the cable television stations as well and 586 00:27:38,310 --> 00:27:40,800 and then leverage that, leverage that. 587 00:27:40,800 --> 00:27:43,680 Similarly, I just think it, it, it, it, it again, 588 00:27:43,680 --> 00:27:48,210 just the practical point is it's just, it's it's hard for me 589 00:27:48,210 --> 00:27:50,580 to see, to use a technical term. 590 00:27:50,580 --> 00:27:53,790 I don't think this was Latin much oomph in an ar In an 591 00:27:53,790 --> 00:27:55,290 ar Not Latin. 592 00:27:55,290 --> 00:27:56,730 Not Latin. Oh, I thought it was Latin. 593 00:27:56,730 --> 00:28:00,360 Maybe it's pig Latin much oomph today. 594 00:28:00,360 --> 00:28:04,890 In in in in the argument that, that you, 595 00:28:04,890 --> 00:28:06,300 you Eugene are articulating. 596 00:28:07,380 --> 00:28:10,680 - Yeah, I mean, I was gonna say in our hypothetical campaign 597 00:28:10,680 --> 00:28:13,470 against each other, Eugene Yeah, you can go 598 00:28:13,470 --> 00:28:17,070 to a broadcast show on a, B, C, 599 00:28:17,070 --> 00:28:19,620 but luckily I know Joe Rogan, so 600 00:28:19,620 --> 00:28:20,970 - Oh well, better yet. 601 00:28:24,060 --> 00:28:25,110 - Yeah, so, so actually that 602 00:28:25,110 --> 00:28:28,260 that I I wanna ask another question about the pragmatics 603 00:28:28,260 --> 00:28:31,260 before turning you back to the First Amendment question. 604 00:28:31,260 --> 00:28:35,550 Stuart Eugene referenced the broadcast 605 00:28:35,550 --> 00:28:39,840 license as something that's valuable, as if it's a, 606 00:28:39,840 --> 00:28:41,730 you know, so it's a massive burden that 607 00:28:42,960 --> 00:28:46,410 another show wouldn't be able to broadcast. 608 00:28:46,410 --> 00:28:48,030 Why is, and I, 609 00:28:48,030 --> 00:28:50,280 and so I get the sense that one reason we have this fight is 610 00:28:50,280 --> 00:28:53,340 that all of these shows, even though they can be streamed, 611 00:28:54,240 --> 00:28:56,070 even though they can be on cable or 612 00:28:56,070 --> 00:28:58,020 or you know, could, could potentially be on cable 613 00:28:58,020 --> 00:29:00,210 and could certainly be streamed over the internet, 614 00:29:00,210 --> 00:29:02,070 the license is still valuable. 615 00:29:02,070 --> 00:29:06,810 So can you, can you just explain why broadcast is still 616 00:29:06,810 --> 00:29:08,825 so such a valuable technology? 617 00:29:08,825 --> 00:29:09,825 So it, 618 00:29:10,805 --> 00:29:12,450 - It's a great question. 619 00:29:12,450 --> 00:29:16,590 So first things first, it turns out that broadcast stations, 620 00:29:16,590 --> 00:29:18,330 which again once had 90% 621 00:29:18,330 --> 00:29:19,800 and just three networks had 90% 622 00:29:19,800 --> 00:29:23,460 of the audience still has about 20% of the, of, 623 00:29:23,460 --> 00:29:24,870 of the market share. 624 00:29:24,870 --> 00:29:27,840 Which, which, which may or may not surprise you. 625 00:29:28,695 --> 00:29:32,190 And, and there are some populations whom broadcast is a, 626 00:29:32,190 --> 00:29:33,390 is is a bigger deal. 627 00:29:33,390 --> 00:29:36,480 So broadcast watching tends to skew older 628

00:29:36,480 --> 00:29:39,180 - And they won't go like the, they wouldn't travel 629 00:29:39,180 --> 00:29:42,850 with their show to a different transmission. 630 00:29:42,850 --> 00:29:44,410 Well, they might, I mean they, they might, 631 00:29:44,410 --> 00:29:46,300 - But I mean, you know, for some people this is just, 632 00:29:46,300 --> 00:29:48,460 this is, this is, they have got, 633 00:29:48,460 --> 00:29:50,320 they have grown up watching their, 634 00:29:50,320 --> 00:29:52,780 their their local television news and that's the, 635 00:29:52,780 --> 00:29:54,010 and that's the show they're gonna, 636 00:29:54,010 --> 00:29:55,510 they're they're gonna keep on watching 637 00:29:55,510 --> 00:29:57,610 and then, you know, the idea would be, 638 00:29:57,610 --> 00:29:58,990 and then they leave it on during the day 639 00:29:58,990 --> 00:30:01,060 and that's how they catch the view and that's how they, 640 00:30:01,060 --> 00:30:03,735 and that's how they see the, you know, the Tonight Show 641 00:30:03,735 --> 00:30:04,750 or, or anything else. 642 00:30:05,800 --> 00:30:08,110 So look, I, I do think that there is, 643 00:30:08,110 --> 00:30:11,110 there is still some power to, you know, to 644 00:30:11,110 --> 00:30:12,910 to, to broadcasting. 645 00:30:12,910 --> 00:30:15,100 I just, let me put it to you this way. 646 00:30:15,100 --> 00:30:18,910 I, I mean this is yet a different level of the pragmatics. 647 00:30:19,840 --> 00:30:23,440 If I am the campaign advisor 648 00:30:23,440 --> 00:30:28,440 to Jasmine Crockett, do I actually push for the, 649 00:30:28,660 --> 00:30:31,150 the equal time opportunity? 650 00:30:31,150 --> 00:30:32,350 I might not, this is part 651 00:30:32,350 --> 00:30:33,910 of the reason why Brendan car might one or two, 652 00:30:33,910 --> 00:30:35,650 but it doesn't mean she's actually, I might not, 653 00:30:35,650 --> 00:30:39,550 because I might say I don't think there's that many viewers 654 00:30:39,550 --> 00:30:43,270 and I think I will, I might come off as kind of the, 655 00:30:43,270 --> 00:30:45,550 the sore loser, you know, malcontent. 656 00:30:45,550 --> 00:30:47,950 And so I actually don't, 657 00:30:47,950 --> 00:30:51,460 I actually think I'm just better off not even not even 658 00:30:51,460 --> 00:30:52,630 pushing this in the first place 659 00:30:52,630 --> 00:30:54,760 because it just isn't 660 00:30:54,760 --> 00:30:57,940 that many voters at the, at the end of the day. 661 00:30:57,940 --> 00:31:00,190 - Let's go back to the First Amendment question though, in 662 00:31:00,190 --> 00:31:04,870 that context where the licenses might be 663 00:31:04,870 --> 00:31:07,330 of waning value, though not valueless 664 00:31:07,330 --> 00:31:09,070 for the reasons you say, 665 00:31:09,070 --> 00:31:12,850 and there are so many other options, cable, 666 00:31:12,850 --> 00:31:13,870 internet, et cetera. 667 00:31:15,610 --> 00:31:19,330 Do you think that the Supreme Court, even, 668 00:31:19,330 --> 00:31:21,040 even on the same facts 669 00:31:21,040 --> 00:31:22,990 and assessing the same rules that they've looked at 670 00:31:22,990 --> 00:31:24,490 before in Pacifica or 671 00:31:24,490 --> 00:31:28,690 or in the Red Lion would come 672 00:31:28,690 --> 00:31:32,140 to the same conclusion today? 673 00:31:32,140 --> 00:31:33,850 - I do not. I should, I should say 674 00:31:34,690 --> 00:31:37,036 when I was just starting out as an academic back in the, 675 00:31:37,036 --> 00:31:40,405 in the dark ages, I made a bet with Larry Lessig about the, 676 00:31:40,405 --> 00:31:43,240 the, the Supreme Court overruling red line. 677 00:31:43,240 --> 00:31:45,100 We both thought they would overrule it. 678 00:31:45,100 --> 00:31:47,050 The question was whether they have an opportunity to, 679 00:31:48,190 --> 00:31:49,900 and they haven't 680 00:31:49,900 --> 00:31:52,210 and they haven't had an opportunity to overrule Pacifica. 681 00:31:52,210 --> 00:31:54,130 And there's a reason for that, which is 682 00:31:54,130 --> 00:31:56,980 that the FCC has done so little, right, again, 683 00:31:56,980 --> 00:31:58,750 it's pulled back so much 684 00:31:58,750 --> 00:32:02,590 - Right, - That there isn't much to sue the FCC over to, 685 00:32:02,590 --> 00:32:07,450 to either challenge redline or, or or Pacifica. 686 00:32:07,450 --> 00:32:11,270 I will note that this did come up, there was a, a a, 687 00:32:11,270 --> 00:32:15,160 a brief rise in FCC enforcement on indecency. 688 00:32:16,240 --> 00:32:20,750 And so this involved Cher a a 689 00:32:20,750 --> 00:32:22,870 and on the Golden Globe and, and, 690 00:32:22,870 --> 00:32:24,430 and Denise on the Golden Globes 691 00:32:24,430 --> 00:32:25,480 as made it to the Supreme Court. 692 00:32:25,480 --> 00:32:28,090 They ended up not deciding this case on First Amendment 693 00:32:28,090 --> 00:32:32,650 grounds, but at the oral argument, justice Alito said 694 00:32:33,580 --> 00:32:34,630 in, it's an argument 695 00:32:34,630 --> 00:32:37,900 for why they shouldn't get into the First Amendment issue. 696 00:32:37,900 --> 00:32:41,240 He said, you know, isn't broadcast gonna go the way 697 00:32:41,240 --> 00:32:44,030 of the eight track tape tape player anyway? 698 00:32:44,030 --> 00:32:45,620 And so why would we even need 699 00:32:45,620 --> 00:32:48,080 to get into this First Amendment issue since it's dying? 700 00:32:48,080 --> 00:32:50,660 I have to imagine that the broadcasters in the audience at 701 00:32:50,660 --> 00:32:52,160 the Supreme Court, were not amused by 702 00:32:52,160 --> 00:32:54,470 that question from, from Justice Alito. 703 00:32:54,470 --> 00:32:57,170 But yeah, I think that most people think if they actually 704 00:32:57,170 --> 00:33:00,200 had a chance to squarely to, 705 00:33:00,200 --> 00:33:03,500 to squarely reconsider Red Lion Pacifica, they would, they, 706 00:33:03,500 --> 00:33:05,570 I I think most people think it would overrule

Pacifica. 707 00:33:05,570 --> 00:33:07,610 And I think most people also think they probably 708 00:33:07,610 --> 00:33:09,350 overrule Red Lion. 709 00:33:09,350 --> 00:33:11,660 And so one way of thinking about the fccs 710 00:33:12,650 --> 00:33:15,740 constraining itself is, I I I think it was originally done 711 00:33:15,740 --> 00:33:19,280 'cause Reagan, the Reagan FCC really did think 712 00:33:19,280 --> 00:33:22,430 this was just an intrusion on, on, on the First Amendment. 713 00:33:22,430 --> 00:33:25,580 But an additional reason as the years have gone on might be, 714 00:33:25,580 --> 00:33:28,400 and we're gonna, and we, the FCC are gonna lose if we, 715 00:33:28,400 --> 00:33:30,020 if we try to get more aggressive. 716 00:33:30,020 --> 00:33:31,520 - Do you think even that the, 717 00:33:33,890 --> 00:33:36,260 the fleeting expletive, like the fleeting, 718 00:33:36,260 --> 00:33:40,040 fleeting expletive case was the most recent of these kind 719 00:33:40,040 --> 00:33:41,960 of very content oriented 720 00:33:41,960 --> 00:33:43,370 cases that the Supreme Court decided? 721 00:33:43,370 --> 00:33:45,050 Is that right? Am I right about that? 722 00:33:45,050 --> 00:33:47,600 - Okay. Yes. And that's, that's where Alito said that 723 00:33:47,600 --> 00:33:48,500 or argument, but they didn't 724 00:33:48,500 --> 00:33:49,760 get to the First Amendment issue. 725 00:33:49,760 --> 00:33:52,070 - Oh, that's the one. Okay. So and so. Oh, okay. Got it. 726 00:33:52,070 --> 00:33:53,540 Okay. Yeah, 'cause that was in the co 727 00:33:53,540 --> 00:33:55,460 that was in the internet era 728 00:33:55,460 --> 00:33:57,740 and yet it's okay. So they avoided the right, 729 00:33:57,740 --> 00:33:59,840 - They decided, decided to do process grounds. 730 00:33:59,840 --> 00:34:00,800 They had, they had another constitutional 731 00:34:00,800 --> 00:34:02,300 provision they could throw in there. 732 00:34:02,300 --> 00:34:05,900 - Okay. I was just gonna say, this has been very interesting 733 00:34:05,900 --> 00:34:07,430 and I hope enlightening. 734 00:34:07,430 --> 00:34:09,650 It's been enlightening to me. I hope it's been 735 00:34:09,650 --> 00:34:11,390 even more enlightening to the audience. 736 00:34:11,390 --> 00:34:14,570 And I wanted to thank Stuart very much for, 737 00:34:14,570 --> 00:34:16,220 for coming on our program. 738 00:34:16,220 --> 00:34:18,680 - Sure. Happy to do it, - Jane, thank you 739 00:34:18,680 --> 00:34:20,570 as well as always. 740 00:34:20,570 --> 00:34:24,140 And thanks to our, our listeners for listening 741 00:34:24,140 --> 00:34:28,820 and we'll be having more in the weeks to come. 742 00:34:28,820 --> 00:34:33,410 - Thank you all. This 743 00:34:33,410 --> 00:34:36,440 podcast is a production of the Hoover Institution, 744 00:34:36,440 --> 00:34:40,220 where we generate and promote ideas advancing freedom. 745 00:34:40,220 --> 00:34:42,620 For more information about our work, to hear more 746 00:34:42,620 --> 00:34:43,910 of our podcasts 747 00:34:43,910 --> 00:34:47,390 or view our video content, please visit hoover.org.