Tuesday, August 16, 2011

Reading the ACLU Policy Guide (Pt. 2)

Series explanation and overview here.

Note: These are my summaries of the 1995 version of the guide, not the policies themselves.

The Mass Media

Policy 12 —Access to the Media

"The ultimate purpose of the freedom of speech provision of the First Amendment is to promote the public circulation of diverse thought on political and social causes." From this reasoning, the ACLU asserts that freedom of speech can require positive action to ensure its "ultimate purpose." In a time before ubiquitous Internet, "street corner" and "pamphlet" promotion of unpopular ideas seemed hopeless compared to the power of mass media, so the ACLU here supports various ways of making sure such views are present in mass media formats.

Newspapers, magazines, and similar print media should not be able to turn down non-commercial advertising (of ideas) which are in a similar category of non-commercial advertising that's already accepted. We've seen a recent example of what's at stake with the difficulty Atheist groups have had in keeping up billboards in cities Christian groups have not.

Newspaper opinion pages are recommended. (Those weren't a given a couple of decades ago?)

The previous items concerning print media were apparently just strong recommendations, because this policy contrasts the "unenforceable right of access" to print with an "enforceable right of access" to broadcast media. The justification is public ownership of the airwaves.

Policy 13 — Newsperson's and Researcher's Privilege

The ACLU believes the First Amendment protects reporters and other researchers from being compelled to provide their confidential sources, with the sole exception of such material being essential to a defendant in criminal court.

Policy 14 — Government Pressures on Newspapers

Investigation of newspaper funding for anti-trust reasons is allowed, but investigation of "political and social opinions" is forbidden by the First Amendment.

Laws forbidding political opinions in newspaper editorials on election days are unjustified abridgements of the freedom of speech.

Policy 15 — Communications Monopolies

Monopolies aren't necessarily a threat to diversity of opinion; it depends on the specifics of how news organizations operate. Nor does such a threat necessarily correlate to the size of monopoly, as "local monopolies are often more harmful to diversity than nation-wide combinations." The emphasis here is on whether the form of ownership is actually a problem in a given case, not just potentially a problem.

Policy 16 — Commercial Advertising

The ACLU does not claim advertisers should be allowed to say whatever they want, as public health and anti-fraud concerns are valid reasons to restrict advertising speech. However, advertisements may contain protected forms of speech. (An advertisement for birth control in a strongly Catholic community might be at risk of unjustified suppression, for example.)

The government may not require advertisers to disclose their identities, but the advertising medium may set requirements.

Policy 17 — Film Classification

Nothing here not already covered in earlier policies. The ACLU expects parents to make their own decisions about which films their children see, and suggests they consult "various experts" ...just not the government.

Policy 18 — Rating Systems Sponsored by the Communications Industries

Though not government entities, film and music industry rating systems significantly constrain free speech and expression. Besides, the private nature of such system is questionable because, historically, they were put in place to avoid a perceived threat of the government doing so.

To be clear, the ACLU does support non-industry groups who take it upon themselves to provide information — even ratings — of music and films. (A good current example is http://www.kids-in-mind.com.) The difference is that people can make their own informed choices about what they and their kids watch, without industry powers imposing their often arbitrary rules on artists.

Policy 20 — Governmental Regulations of Broadcasting

The ACLU believes that technological limitations on the number of broadcast channels has resulted in a "government-created First Amendment preferred position" for those in control of these channels, compared to those without such control. Furthermore, the government's involvement has imposed content restrictions on broadcast channels. The ACLU opposes content restrictions and wants to ensure some use of broadcast channels for non-owners.

Policy 20a — Civil Liberties Principles and Requirements for the Communications Media Infrastructure

Written just before the first graphical web browser was created, this policy concerns the "diversity of networks that will permit citizens to communicate with each other via multiple, interactive communications paths by voice, data, image, video, and other communications means." Today we'd probably just say, "the Internet." (I should point out that this policy was strictly written about "public switch telephone lines" with other media infrastructure under investigation. Perhaps they had things like Bulletin Board Systems in mind.)

The vision for "an electronic public forum" is one to which "all citizens and locales have reasonable, equitable, nondiscriminatory, and affordable access [....]" Services should be "offered by a diversity of sources." Also, Common Carrier regulation should ensure that content providers on the network have equal access "at non-discriminatory rates and terms," are not bound by contract to only use one carrier, are not subject to content filtering by carriers, are considered exclusively responsible for their content (as opposed to holding the carriers responsible), are given a reasonable share of traffic capacity, are free to use their own endpoint equipment (not dictated by carriers), and have their privacy and their subscribers' privacy protected.

This is all quite similar to Network Neutrality policies.

Policy 21 —Diversity, Censorship, and FCC Regulation

This policy echoes Policy 20 in asserting an "affirmative obligation" for the government to ensure diversity on limited broadcast channels, but then weakens this claim considerably by saying: "The [FCC] has a duty to encourage a multitude of voices, but only in a limited way, viz: by preventing monopolistic practices and by promoting technological developments that will open up new channels. But censorship or editing or the screening by government of what licensees may broadcast goes against the grain of the First Amendment." Especially read in light of Policy 15's attitude that monopolies aren't necessarily bad, all of this strikes me as muddled to the point it doesn't seem possible to follow all of these guidelines at once.

Policy 4's position on obscenity for print media is extended to broadcast media, which would be no restrictions based on obscenity.

Policy 22 — Curbs on Network Control of Programming

The ACLU supports compelling networks to offer blocks of broadcast time on a "first come, first served" paid basis to the public. In particular, this should include prime time blocks.

Policy 23 — Subscription TV and Theater TV

Since this policy was written toward the end of public broadcast channel dominance, the promise of a greatly increased number of channels supported by subscriber fees rather than advertising was welcomed as a great stride forward for diversity of speech. The ACLU had in mind what we would now call "à la carte television", where viewers subscribe on the level of specific channels or programs which today is really only offered as a premium service after paying for huge blocks of cable channels. The thought was that by relying on subscriber fees rather than trying to please the largest possible audience for the sake of advertisements, content could cater to more specific interests.

There was apparently a contemporary complaint from broadcast networks about the FCC promoting subscription TV, so this policy also spends time justifying the FCC's role in this and addresses fears that subscription TV would eliminate the older networks.

Theater TV just means showing TV content to a large audience and charging for it. The ACLU was positive about this as well, since it only adds to sources of information.

Policy 24 — Cable Television

Amusingly, this policy from the mid-70s presents a much less rosy view of subscription TV than the previous policy from the mid-60s. By this point, the harsh reality of local cable monopolies selling block of channels according to their own tastes had dampened the earlier hopes of open and diverse consumer choice.

Much of this policy is a rehash of Policy 20's remedies for broadcast channels. However, because of the cost of cable, the ACLU asks that fees be set by "an independent and politically insulated regulatory board" to avoid creating "information poor" segments of society left without cable access.

Another difference with cable television is the ease of gathering information about viewing habits. The ACLU is fine with aggregate data but against unnecessary record keeping on individual subscribers.

Policy 25 — Fairness Doctrine

Anyone can produce print media, but technical limits on the number of broadcast stations create a scarcity of opportunity to broadcast information over the air. Because of this unique situation for the medium, the ACLU believes there is ample justification for regulation which ensures broadcast channels are serving the overall public interest, in a way that is unnecessary for print media.

"As a policy, the general Fairness Doctrine expresses two duties: 1) licensees have an affirmative obligation to devote a 'reasonable amount' of air-tme to the discussion of 'controversial issues of public importance'; and 2) once broadcasters cover one side of a controversial issue, they must also afford a 'reasonable opportunity' for contrasting viewpoints to be heard."

In addition, when a person or group is attacked on the air, there is a duty to notify the attacked of the details and offer a chance to respond on the air. And when a station endorses a political candidate — or a political issue "closely associated with a particular candidate or candidates" — that station must also provide an opportunity to respond.

The ACLU supports the Fairness Doctrine because of its positive duty interpretation of the First Amendment in combination with the situation of broadcast scarcity. One specific recommendation is that any time the President speaks, "contrasting viewpoints should be presented immediately."

Policy 26 — Equal Time in Broadcasting of Political Campaigns

All "legally qualified candidates" must be provided equal time to speak to the public on broadcast and cable channels. News programs which happen to cover candidates do not count against their share of the time.

Policy 27 — Broadcast Editorializing

Earlier on, the ACLU was opposed to broadcast editorializing. This policy (dated April 13, 1959) reverses position, so long as editorializing is clearly identified and broadcasters also ensure advocates for the other side of the issue are invited (at least) to speak their minds.

Policy 28 — Reallocation of the TV Spectrum

This late 70's policy supported the gradual move of all broadcast television to UHF stations, which would have allowed for a greater number of channels. Obviously, this didn't happen, probably due to UHF having significant downsides.

Policy 29 — Religious Broadcasting

This policy implies there was a perception that the FCC considered religious programming as a factor in licensing. The ACLU supported including minority/non-organized religious views as well as irreligious views in that definition, and asked the FCC to state that having religious programming is not a positive or negative factor in licensing.

Policy 30 — Public Broadcasting

The ACLU supports public broadcasting (now known as PBS and NPR for television and radio format respectively). In addition to the regulation of privately owned channels as addressed above, these would be publicly owned channels which allow for full time focus on the positive duty to the First Amendment, i.e. a diversity of speech on topics of public interest.

Policy 31 — Broadcasting Employees' Political Activities

The ACLU opposes firing radio or television employees for outside political associations or activities, though doesn't object to reassignment if that person is in news reporting (but not for other positions). And if this is to be done, it must be a stated policy ahead of time.

Policy 32 — Loyalty Oaths, Investigations, and Blacklisting

Blacklisting workers known to have unpopular political associations, or requiring workers to swear they won't take up such associations are strongly opposed practices. Obviously, company investigators of employee associations are out of the question as well.

There is an allowable exception for when writers use their jobs to promote ideas employers are against. Not sure on the details here, but I think this refers to employers being able to control content put out by their own company.

Policy 33 — On-the-Air Treatment of Political and Social Dissidents

"Any legally qualified candidate is entitled to reach the electorate" through broadcast stations, even if that candidate shares views which overlap with disliked groups or individuals.

Policy 34 — Political Criteria for Licenses

Since a broadcaster may be both a station owner and a content producer on a station, the ACLU wants to make it clear that it doesn't demand such a person present balanced views as a content producer, so long as the station as a whole adheres to diversity guidelines above. Individuals are not expected to embody diversity; stations are.

Policy 34a — Exit Polling

The ACLU opposes restrictions on exit poll reporting, except as necessary "for an orderly election process."

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