"There are only two ways of telling the complete truth—anonymously and posthumously."Thomas Sowell

Friday, September 08, 2006


The Disney organization's production "The Path To 9/11" has prompted Senate Democrats to threaten to revoke ABC's broadcasting license unless the mini-series is revamped to conform to their specifications.

We have at last a genuine example of a threat of censorship: the use of State power to punish an organization for something it has said. Indeed, this goes further than that, in that those Democratic Senators are exercising their threat prior to the "statement" represented by the mini-series. That makes it a case of politically powered extortion, which would surely be adjudged a felony if any private party were to try it.

But wait! There is an exception to the First Amendment's protection of freedom of speech: the laws against slander and libel. Smith has slandered Jones if he has made defamatory oral statements about Jones that Smith cannot substantiate. Smith has libeled Jones if he has allowed such statements to be printed or broadcast.

Note the qualifying clause: " that Smith cannot substantiate." A defendant in a slander or libel action can escape unscathed by asserting and demonstrating the truth of his statements. So if ABC could produce evidence to support the statements made in "The Path To 9/11" to which those Senate Democrats object, the objectors would lose their case.

Does ABC have such evidence? Unclear, especially given the statement by the series's executive producer:

Executive Producer Marc Platt acknowledged that "there is dramatic license taken" in the docudrama to "render the program effective and accessible for viewers."

"But we do try within the boundaries of what is fair and reasonable to communicate the essence of what occurred (and) the intentions of those individuals involved," he told Reuters in a telephone interview from London. "We have no intention or desire to be political, to intentionally distort."

Since the series is being billed as a "docu-drama," the implication of dramatic license, to heighten the entertainment value of the series at some expense to its provability, should have gone without saying. But that opens a larger question: is it morally defensible to write fiction about the actions of persons who have occupied high office in the real past?

The BBC production "The Death Of A President," which chronicles events in the aftermath of the assassination of President George W. Bush, should be included in this sheaf of conundra, don't you think? And what about the many statements by Democratic partisans imputing felonious behavior to Vice-President Dick Cheney, to presidential advisor Karl Rove, and to others for political advantage -- imputations for which there was never any substantive backing, and all of which are now provably false?

Shouldn't all of these defamations be weighed for addressability under the slander and libel laws? Shouldn't those who made them have to rise to the same standard, at the minimum, that the Senate Democrats are demanding of ABC and Disney? After we've settled all that, perhaps we can make a group appointment to have our teeth filed down to points.


James Elliott said...

"We have at last a genuine example of a threat of censorship: the use of State power to punish an organization for something it has said."

Or, to put it another way, we have people saying a law that's been on the books for 72 years should be enforced. Golly.

Tom Van Dyke said...

The impossibly thorough and irrefutable Kathy Kutchins, just in case anyone missed it the first time:

"There is nothing in the 1934 Act that provides for any criminal or civil penalty for broadcast content other than indecency. The Fairness Doctrine was never legislated; it was a policy of the FCC begun in the 1940s, upheld as constitutional in Red Lion in the 60s, but rescinded in 1987, after the Supreme Court in Meredith declared that the FCC was not required to enforce it.

Holders of individual broadcast licenses do have to periodically reapply for those licenses, and at that time the public can present evidence to the FCC that the license should be withheld. There is a general "public interest" clause which can be brought up during reapplication. The appropriate petitioners are the members of the broadcast audience, not a bunch of powerful senators.

The proper remedy for Clinton, Albright, Berger, et al. who believe they have been harmed is to sue Disney for defamation and libel. Of course, since they are public figures they will have a very hard time meeting the standards of U.S. libel law. Liberals seemed to think that standard was very funny when it prevented Jerry Falwell from recovering against Larry Flynt.

If you think I'm wrong, cite the Act to prove it. Here's the complete text in PDF, just to get you started."

The links can be found in the comments section in the post before this one.