Elena Kagan's first amendment moment of truth

[alp227]

Dan Kennedy, The Guardian (UK)

Now we may get to find out what Elena Kagan really thinks about free speech.

On Tuesday, a federal appeals court in New York struck down a rule prohibiting broadcasters from allowing "fleeting expletives" to go out over the air. The rule, put in effect by the Federal Communications Commission in 2004 following live, televised F-bombs by the likes of Bono and Cher, is "unconstitutionally vague", the court found.

If the FCC appeals the decision to the supreme court, we may see the end of a regulatory regime extending back to the dawn of commercial radio in the 1920s. And assuming Kagan is confirmed as the court's newest member, she will be forced to choose between freedom of speech, on the one hand, and her expansive view of executive power, on the other.

Radio and television have always been print's poor step-cousins when it comes to the first amendment's guarantee of free speech. The power of the Federal Radio Commission, formed in 1926, and its successor agency, the FCC, was based on the notion that the airwaves were a scarce, publicly-owned resource that must be regulated for the public good. This notion was affirmed in the 1969 supreme court case Red Lion v FCC, which held that a radio station had to allow a politician to respond after he had been criticised during a broadcast.

In the intervening years, the FCC all but abandoned its attempts to regulate political speech, thus giving rise to rightwing talk radio. But the same conservative forces that freed Rush Limbaugh and his ilk were becoming increasingly distressed over "indecency", which, in FCC-speak, refers to content that may be banned from radio or television, or restricted to hours when children aren't tuned in (generally thought to be between 10pm and 6am), even though it is fully protected by the first amendment.

Full article: http://www.guardian.co.uk/commentisfree/cifamerica/2010/jul/14/fcc-first-amendment-kagan

WARNING: AN UNCENSORED IMAGE OF Janet Jackson's wardrobe malfunction from 2004 is the lead image of this article! Viewer discretion is advised.

[Ozymanithrax]

1. I for one am glad to see the one fuck you rule tossed out...

I hope Kagen will vote for the right of corporations to say fuck you as often as they want.

[SusanaMontana41]

2. If corporations have the right to free speech, so should we. n/t

[SusanaMontana41]

3. That was my 1,000th post on DU!

Thanks to Skinner and the DU community for giving liberals a safe port. I'll be here for the long haul.

DU ROCKS!

[Ozymanithrax]

4. Free speech, under the new rules, is equal to money.

In theory, you are equal to any American corporation. In practice, you have the right to whisper in a locked sound proof closet. They have the right to scream as loud as they want while using a megaphone and an amplifier on coast to coast television.

You must be an American Citizen. A corporation only must be chartered in the U.S. Its owners, can be British, Saudi Arabian, or anyone. As long as the corporate entity is chartered here, it can spend an unlimited amount of money to influence a political contest.

Free speech doesn't mean equal speech or equal rights.