BOB GARFIELD From WNYC in New York, this is On the Media. This week, we debate the pros and cons of deplatforming, FOX News.

 

ROD SMOLLA What Fox did would probably fall on the abstract advocacy side of the line and not on that immediate incitement to violence side that is required under Brandenburg.

 

JASON HIRSCHHORN  The one area I refused to work on and I made a deal with Rupert was Fox News. And back in 2009, I even thought they were spinning off the planet then and I wish they were like that now -- compared to what they are now,.

 

[CLIP] 

 

TUCKER CARLSON Tens of millions of Americans have no chance. They're about to be crushed by the ascendant left. [END CLIP]

 

NICOLE HEMMER The Fairness Doctrine that comes out of this moment after World War Two, when Americans are pretty worried about propaganda.

 

NANDINI JAMMI You have to participate in society even when it's uncomfortable for your brand. I believe this is an inflection point.

 

BOB GARFIELD It's all coming up after this.

 

[BREAK]

 

BOB GARFIELD From WNYC in New York, this is On the Media, Brooke Gladstone is out this week. I'm Bob Garfield.

 

[CLIP] 

 

SEAN HANNITY We're going to cancel anybody we disagree with. Cancel culture now has permeated every single part of our society. Sadly, I predict it's only going to get worse. [END CLIP]

 

BOB GARFIELD Silence more dangerous voices?You know, Sean Hannity, maybe you're on to something. In advance of an impeachment trial of the ex-president on the grounds of inciting insurrection, there is growing sentiment for the cable channel that most amplified Donald Trump's ravings to be held accountable as well. In the past week, The New York Times, Washington Post, Mother Jones, Variety and CNN have all entertained musings about Fox one way or another being shunned from polite society. Washington Post media columnist Margaret Sullivan declared, quote: "Corporations that advertise on Fox News should walk away and citizens who care about the truth should demand that they do." Such is the post insurrection comeuppance zeitgeist.

 

[CLIP] 

 

NEWS REPORT After the January 6th riots, mainstream social media rid itself of Donald Trump and thousands of other conspiracy theorists. Twitter dropped more than 70,000 accounts devoted to QAnon in a single day. [END CLIP]

 

BOB GARFIELD Likewise, Parler the extremist-heavy Twitter clone lost its Internet host. Republican members of Congress suddenly lost sources of campaign funds, and Donald Trump himself lost crucial business relationships. Cancel culture, Sean? Well, yeah, more or less. And so in this hour, we address two questions. First, what if Fox News were to be neutralized or at least radically ostracized? And secondly, in a democratic society in which free speech is foundational, is that an outcome we really want? Both questions are premised on the belief that whatever Fox has been since its 1996 launch: a megaphone for wedge issues, fear mongering lies, conspiracy theories, culture wars, has poisonously mutated. It's no longer just an argument with the left, it's explicitly a safe space for insurrectionists and all those who imagine themselves under the heel of tyranny.

 

[CLIP] 

 

TUCKER CARLSON Tens of millions of Americans have no chance. They're about to be crushed by the ascendant left. These people need a defender. You need a defender. Why is no one defending them? [END CLIP]

 

BOB GARFIELD That was Tucker Carlson one day after the storming of the Capitol. Which, according to Angelo Carusone, president and CEO of the left leaning advocacy group Media Matters for America, exemplifies the channel's dark and treacherous turn.

 

ANGELO CARUSONE They know that a deep part of their audience, especially Tucker's, aligns with this idea of white genocide. That white culture is in some way being replaced and decayed, and they are trying to appeal to that, and they're warning them that they're coming for them.

 

[CLIP] 

 

HANNITY It's a political persecution, plain and simple. It's now standard operating procedure in the Democratic Party. Are you or have you ever been a supporter of Donald Trump? Why not put a scarlet letter "T" on supporters?

 

[CLIP] 

 

JEANINE This is a slippery slope. Are people going to say, "well, we're not going to sell you a car, republicans," "we're not going to say we're not going to issue you a mortgage, conservatives." I mean, how far does this go?

 

[CLIP] 

 

TUCKER CARLSON Listen as the geniuses, explain how the single biggest threat to this country isn't Chinese hegemony or even the coming hyperinflation, pretty much a certainty now, which was one hundred percent caused by elite mismanagement of our economy. But no, let's not talk about that. The real threat is a forbidden idea. It's something called QAnon. [END CLIP]

 

BOB GARFIELD That's Carlson dismissing worries about QAnon, a cult dedicated to dismantling a government filled with pedophiles and cannibals. Which is something of a departure from historical conservative values of states rights, fiscal responsibility, a strong military and self-reliance because, you know – cannibals.

 

ANGELO CARUSONE The last year in particular is when it certainly seemed as though the cauldron of extremism and lies that Fox News had been boiling, boiled over. And I think it affected everybody's lives. First with COVID, and all the misinformation and how they influence the public health response and then in the aftermath of the election and how they kind of built the framework that really helped undermine the results in the minds of so many of our fellow citizens.

 

BOB GARFIELD And after the rage it had helped fuel finally materialized into violence, did Fox pull back, humbled and chastened over its own dark power? No. Just last week, here was Fox News founder Rupert Murdoch in Australia denouncing not insurrection, but cancel culture.

 

[CLIP] 

 

RUPERT MURDOCH It's rigidly enforced conformity. Aided and abetted by so-called social media. It's a straitjacket on sensibility. Too many people have fought too hard in too many places for freedom of speech to be suppressed for this awful woke orthodoxy. [END CLIP]

 

BOB GARFIELD Murdoch's denunciation of political correctness was widely interpreted as a vow not to cave, either to the bleeding hearts, or to the even fringier conservative channels like Newsmax and One America News, where many MAGA faithful fled on election night when Fox was the first to call Arizona for Joe Biden. In the aftermath, the perennial ratings leader skittered at least temporarily, to third place in cable news. And for now, Murdoch is steering into the skid. As NPR's David Folkenflik reports, by taking even more news out of Fox News.

 

[CLIP] 

 

DAVID FOLKENFLIK One of their top news anchors, Martha MacCallum, she was shifted from seven pm, a prime evening slot to three p.m. in the afternoon, and that is a major opinion hour. And let's be clear, conservative opinion hour. Among those auditioning is Maria Bartiromo, an anchor who has made a lot of unfounded and unhinged claims. Here's one from her... [END CLIP]

 

BOB GARFIELD So let's just, for the sake of argument, accept that Fox News Channel has not only crossed a line, but defiantly stayed there, and thus the chorus of calls for boycotts by its advertisers and of its advertisers in order to starve the beast. In the interest of full disclosure, in other spaces, I myself have called for that very thing. This happens to be the work Carusone's Media Matters has been undertaking for years with mixed success.

 

ANGELO CARUSONE One of the big efforts was a campaign to get either Glenn Beck to be less destructive or ultimately fired, and that's exactly what happened. On the other hand, more recently, advertisers have fled Tucker and Laura Ingraham. They have lost about half of their paid commercials. I mean, they used to have more than 30 commercials a show. Now they averaged between 14 and 16. And even though they've lost money, obviously they're still on the network and they continue to thrive.

 

BOB GARFIELD This has just entirely bewildered me for decades because I know consumer brands are highly sensitive to their reputations and they are historically especially allergic to politics because they are always at risk of offending half of their customers by advertising to the other half, yet they've stuck around. Why are Procter and Gamble and Progressive Insurance sponsoring disinformation and hate speech?

 

ANGELO CARUSONE In the case of Progressive, which advertise across the network, they make the argument that we put so much money into this base across the board. We just don't make these decisions. And I don't think the general public was giving them enough backlash for that and holding them accountable because their ads were everywhere, and I think they felt like they were so saturated that the risks were very, very low of being singled out.

 

BOB GARFIELD Now, you would think that 25 million COVID infections, 400,000 plus deaths and one insurrection would, you know, at long last tip the scales for the likes of Progressive Insurance. Do you have any indication that these holdouts are finally prepared to put their money elsewhere?

 

ANGELO CARUSONE I think the most likely companies that we're starting to see get a little shaky are the pharmaceutical companies that remain. Because it's become increasingly difficult to continue to advertise on Fox News when Fox News is pushing anti-vax content and vaccine skepticism. And just last night, Sean Hannity said that he's been having his doubts about getting the vaccine.

 

BOB GARFIELD As we discussed in a recent show, boycotts are difficult to sustain. Consumers are loath to give up value and convenience for a grievance that can be tweeted about at no personal sacrifice. And businesses are loath to surrender access to an important market niche. So how to get advertisers to stop underwriting hate speech without shaming them? Nandini Jammi is co-founder of Check My Ads, a for profit company that she created in the image of her nonprofit Sleeping Giants. Her first target four years ago was Steve Bannon's Breitbart.com.

 

NANDINI JAMMI We started Sleeping Giants in the weeks after the 2016 US elections to let brands know that their ads were appearing on Breitbart.com, so we decided to start this campaign to let them know and give them a chance to block it from their media buy.

 

BOB GARFIELD And the reason they might not know it themselves is because so much digital advertising was purchased an automated way that you are targeting your ads at certain IP addresses at certain times with certain offers, not necessarily knowing which website it will appear on.

 

NANDINI JAMMI That's exactly right. This is happening at such scale that the average advertiser could be appearing on hundreds of thousands of websites, and, you know, no one really goes in and checks to see where their ads are actually ending up. What we did was we would contact companies in good faith and we want to give them a chance to do the right thing. We didn't need to boycott because all we had to do was show companies their own values statements, their own mission statements, how they talk about themselves and juxtapose that with their advertising buy. And when you kind of put those two things together, the decision is sort of made for them.

 

BOB GARFIELD However helpful the process was to the advertisers, your goal was to starve the likes of Breitbart News, was it not?

 

NANDINI JAMMI Oh, yeah, absolutely. Our campaign was so successful that we ended up losing Breitbart 90 percent of their ad revenues within the first three months of our campaign.

 

BOB GARFIELD How confident are you of those numbers? I mean, for one thing, they're still around. How do you know, 90 percent of revenue vanished?

 

NANDINI JAMMI Because Steve Bannon said so himself on video. There was a filmmaker following him around a couple of years ago for a documentary called Brink, and one of the scenes that didn't make it into the final cut was Bannon having dinner with a bunch of his pals in London.

 

[CLIP] 

 

BANNON This group called Sleeping Giant, they literally stripped out. They went to 35 exchanges that sell the ads, 31 went away. So the ad revenues dropped like 90 percent. [END CLIP]

 

BOB GARFIELD And so was this your biggest cultural war trophy?

 

NANDINI JAMMI Actually, it's it's not. Almost about 6 months after we had gotten successful with Breitbart. The news of Bill O'Reilly's sexual harassment allegations came out in April 2017.

 

[CLIP] 

 

NEWS REPORT On a recent investigation by The New York Times found that O'Reilly and Fox News have paid out a total of 13 million dollars to settle, with 5 different women who alleged O'Reilly had sexually harassed them, or engaged in inappropriate behavior. [END CLIP]

 

NANDINI JAMMI I think he lost about 50 or 60 advertisers at the point at which he went on vacation, so to speak, and never came back.

 

BOB GARFIELD Fox News Channel has lost a lot of its advertisers over the years, but nonetheless, as a bunch of big names still there, including Amazon, Procter and Gamble, Progressive Insurance, Liberty Mutual, a whole mess of other familiar brand names. Why are they still there?

 

NANDINI JAMMI When we launch a boycott against, say, Tucker Carlson or even with Bill O'Reilly, what the advertisers do is realize that they can't justify advertising alongside the rhetoric that is on that part of the channel. So what they end up doing is moving their ads to the news part of the channel. So Fox News ends up keeping the revenues, they just move the ads around.

 

BOB GARFIELD To Media Matters, Angelo Carusone, this wink, wink, nudge, nudge distinction without a difference is one of two major obstacles to boycotting Fox into submission.

 

ANGELO CARUSONE There is this impression that somehow Fox News has a news division and that it is distinct from their opinion commentary, and oftentimes that's how Fox News responds to critics. And the problem with that is that it just the data doesn't bear it out. So in the first 2 weeks after the election was called, for example, Fox News undermined the results. Actually either made accusations of fraud that were baseless or said there was cheating or just basically said the results were inaccurate, 774 separate times. And it was evenly split between their so-called news division and their opinion side.

 

NANDINI JAMMI And I guess that's where folks like me come in and say, you know, you're not going to be able to continue holding this position of neutrality anymore. You're going to have to get comfortable with taking a side. You have to participate in society and in our world, even when it's uncomfortable for your brand. I believe this is an inflection point.

 

BOB GARFIELD Maybe, but there is also to be reckoned with Carusone's other concern. Namely that even a successful advertising boycott of Fox News...is weak tea.

 

ANGELO CARUSONE The dirty secret about Fox News is that they don't need commercials. They don't make their money from commercials.

 

BOB GARFIELD As it turns out, and as we shall see in the next segment, advertising is not crucial to the Fox News business model. Guess who is?

 

This is On the Media.

 

[BREAK]

 

BOB GARFIELD This is On the Media, I'm Bob Garfield. To recap, we're discussing how the marketplace might force Fox News Channel into responsible behavior or even into financial catastrophe. Most of that discussion tends to focus on advertiser boycotts, but Media Matters Angelo Carusone has just redirected our attention to Fox's real cash cow. Say Moo, it's you.

 

ANGELO CARUSONE They can have zero commercials and still have a 90 percent profit margin because they are the second most expensive channel on everybody's cable box, and Fox is in the process right now of renegotiating 40 to 50 percent of all of their contracts.

 

BOB GARFIELD Fox commands about twenty dollars per cable subscriber per year, not per viewer per subscriber. As long as your cable system embraces Fox to deliver its steady, loyal audience – you, basic cable subscriber – are underwriting Fox and Friends. So if this is truly an inflection point, it may be that we can't depend on advertisers to inflect, but instead the cable companies themselves. Comcast, Charter, Cox, Verizon and so forth. Yes, imagine your cable company, which you almost certainly hate for reasons that have nothing to do with politics, as a savior of American democracy like King Kong versus Godzilla, only Godzilla, is late for your service window.

 

ANGELO CARUSONE That's a good way to put it, yes! It is a weird case where you don't know who to root for, but you know, the fight needs to happen. If they are able to successfully complete these renegotiations over the next year and get more money out of it. There's nothing they can do or say that will get them any meaningful consequences and force them to change. This is really the last opportunity that we have to address the role and the destructive influence that Fox News played, currently plays and will play in our society. I don't think we need to censor them, but I do think that there needs to be a recalibration and some meaningful accountability for all the damage that they've created.

 

BOB GARFIELD Neither urgency or hopefulness, however, make it so.

 

JASON HIRSCHHORN I've spoken to a couple of people at the cable companies, not all. I haven't heard one that is seriously thought about it, nor gone back to Fox to talk about content.

 

BOB GARFIELD Jason Hirschhorn was formerly chief digital officer of MTV Networks, president of Sling Media and recently co president of MySpace, where he worked for Rupert Murdoch. Now as founder and curator of the newsletter Media Redef, he's in regular touch with top executives throughout the multichannel universe.

 

JASON HIRSCHHORN There has been no sign to me that they're going to stop and no sign that any cable company will take them off.

 

BOB GARFIELD Nobody was asking for de platforming when Fox was talking about tax and spend Democrats and the war on Christmas, but things have changed pretty markedly of late. I mean, we're in clear and present danger territory, are we not?

 

JASON HIRSCHHORN When I worked at News Corp years ago and I was chief product officer of News Corp at the same time, I was head of MySpace. The one area I refused to work on and I made a deal with Rupert was Fox News. And back in 2009, I even thought they were spinning off the planet then. And I wish they were like that now compared to what they are now.

 

BOB GARFIELD So much of its revenue comes from the carriage fees, so what kind of leverage would someone have to have with the cable providers to make them act?

 

JASON HIRSCHHORN When you sign a cable deal, you're signing a cable deal and you're telling the cable company exactly what you're going to provide, and that's part of the deal. And if you don't provide them that, if you in some way substantially change what you're programing is, then they have the right to drop. And this is as simple as if you rename a network and rebrand it or you actually change what you put on the network. And I would love to see the description of Fox News as it stands in a Comcast agreement or an AT&T agreement, DirecTV agreement and see if they've changed.

 

BOB GARFIELD If the contract says Fox will provide news and information, Hirschhorn speculates, by spewing lies and disinformation, Murdoch may be violating the contract terms. We contacted the five top cable providers for comment. Only one responded, off the record, pointing to the legal challenges that would accompany any such move. Surely there would be more screams of censorship and cancel culture. There could be an antitrust complaint, alleging, for example, that Comcast was ditching Fox to favor its own NBC brands of news, or programming extortion.

 

JASON HIRSCHHORN That's their trump card there: their sports rights, their broadcast channel. If you tried to deplatform them, Fox would say, we're going to pull the Fox Network or we're going to pull Fox Sports or we're going to pull regional sports outlets. This is how the cable business works. It works with leverage.

 

BOB GARFIELD And part of that leverage, Hirschhorn says, is a loyal, stable audience in a cable marketplace that is otherwise not only very volatile, but in its final stage of prosperity. Cord cutting is increasing each month, and the business imperative for the moment is to milk the aging cash cow while it can. Nor does he expect an industry that has forever refused to deliver programming a la carte to unbundle Fox from basic cable and shift it into a costly premium tier, no matter how many howls from Fox hating subscribers.

 

JASON HIRSCHHORN Fox News is a non-droppable channel as they see it today. It's something that they have to have and their argument would be that their audience calls for it.

 

BOB GARFIELD There is, however, one circumstance Hirschhorn can imagine, prompting cable providers to act contrary to their short term business interests, namely their long term business interests. The potential harm they may face from government regulators if they continue to platform Fox extremism.

 

JASON HIRSCHHORN Any threat of regulation on those businesses worries them because they want to do more deals. There's going to be more consolidation, there's going to be more growth. Whether they want to expand their broadband businesses, whether they want to buy another carrier, whether they want to buy another streaming service. All that stuff would come under regulatory review, and obviously this would play a role. For this precise scenario, there is, in fact, a recent precedent. In the U.K. where quasi governmental regulator Ofcom had Fox in its sights. Steven Barnett, professor of communications at the University of Westminster, says Fox was alleged to have violated British broadcast standards demanding accuracy and political neutrality.

 

STEVEN BARNETT There was an incident during 2015-2016 when one of the Fox News guests talked about the Birmingham UK, not Birmingham, Alabama, second city in the UK being a no go area because of the rise in Muslims and Muslim activity, which was complete nonsense and potentially quite dangerous. And then there were issues around Brexit where there were very one-sided and partisan comments in favor of Brexit, which were being discussed even before voting in the UK had finished, which is against the rules in Britain. And then following that around the arrival of Trump and the 2016 presidential election, there were again very partisan comments, pro-Trump and anti-Clinton comments which had no balance whatsoever.

 

BOB GARFIELD Before the regulators even got a chance to rule though, Murdoch himself pulled Fox Channel out of the UK.

 

STEVEN BARNETT They gave the reason for taking it off air as being low ratings, but it had been on air for years and the ratings had more or less stabilized. The real reason was because at that time they were in a battle with the UK regulator and government to be able to take full control of the Sky platform. The Sky Operation.

 

BOB GARFIELD This is the satellite TV operation Rupert Murdoch coveted full ownership of for a couple of decades.

 

STEVEN BARNETT Exactly right. And it was a very profitable operation. And because of Sky News being part of the package, there were real plurality and competition concerns which had been sent off to Ofcom for consideration by the relevant cabinet minister in the UK, and they were in the middle of looking at whether that deal should be referred to the competition authorities and pulling Fox News from the UK platform was one way of signaling we’re, OK, you can let us through.

 

BOB GARFIELD In the end, Murdoch was turned down on his Holy Grail deal anyway, but sacrificing his sickly Fox baby on the altar of Sky TV does demonstrate that in the end, money talks. Consumer pressure, competitive pressure, advertising pressure and not incidentally, legal pressure put money at stake. You may have noticed that Rudy Giuliani and fellow conspiracy peddling lawyer Sydney Powell have recently piped down about voting machine fraud since being sued for a billion dollars plus on defamation grounds by Dominion voting systems. That litigation may also explain a bizarre episode this week on Newsmax. Trump supporter Mike Lyndell, CEO of MyPillow.com, was booked ostensibly for his views on cancel culture, but when he went off on an election fraud tangent, the host freaked.

 

[CLIP] 

 

MIKE LYNDELL Well, first mine was taken down because we have all the election fraud with these Dominion machines. We have a 100 percent proof. And then I – when they took it down,.

 

HOST Mike! Mike, you're talking about machines that we at Newsmax have not been able to verify any of those kinds of allegations.

 

[MIKE LYNDELL SPEAKING UNINTELLIGIBLY UNDER HOST]

 

HOST There's nothing substantive that we've seen. Let me read you something there. While there were some clear evidence of some cases of vote fraud and election irregularities, the election results in every state were certified, and Newsmax accepts the results as legal and final. The courts have also supported that view. [END CLIP]

 

BOB GARFIELD They were right to be nervous. On Thursday, the company Smartmatic, developer of the software on Dominion voting machines, sued Fox News and its host for 2.7 Billion dollars on grounds of defamation. Who didn't see that coming?

 

Rupert Murdoch's plaintive condemnation of "woke" culture was universally seen as defiant, doubling down, but to my ear anyway, there was also a note of resignation or pragmatism or cynicism by any name. Self-preservation may be the greatest muzzle of all.

 

In reporting this episode, we sought comment from Fox, Comcast, Charter, AT&T, Verizon, Procter & Gamble, Amazon, Liberty Mutual, Progressive, the Association of National Advertisers and the Interactive Advertising Bureau. Not one would talk to us.

 

Coming up, want to suppress dangerous speech? Think carefully. This is On the Media.

 

[BREAK]

 

BOB GARFIELD This is On the Media, I'm Bob Garfield. We know that freedom of speech in the United States, though fundamental, is not an inviolable right. Libel, defamation and conspiracy are all punishable, and so, too, is incitement.

 

[CLIP] 

 

TRUMP If the liberal Democrats take the Senate and the White House and they're not taking this White House, we're going to fight like hell. I'll tell you right now. [AUDIENCE CHEERS] [END CLIP]

 

BOB GARFIELD Donald Trump faces an impeachment trial for allegedly inciting the invasion of the Capitol on January 6th. Could Fox News be held responsible too? The answer, explains Rod Smolla, dean and professor of law at the Delaware Law School of Widener University. All comes down to Brandenburg.

 

ROD SMOLLA Brandenburg versus Ohio is one of the classic First Amendment cases to come out of the 1960s. It involved a coup Klux Klan rally outside of Cincinnati in which there was incendiary racist speech with the Klan marching in regalia and burning a cross and making all sorts of racist statements, but there was nobody else there other than Klan members. The Supreme Court held that the Klan could not be criminally prosecuted and convicted for their racist speech because it was abstract advocacy, but it was not an actual legal attempt to incite violence. And the famous test that arose from that case was that the speech must be directed to the incitement of imminent lawless action and likely to produce such action. What Fox did would probably fall on the abstract advocacy side of the line and not on that immediate incitement to violence side that is required under Brandenberg.

 

BOB GARFIELD I want to call your attention to two cases, counselor. One is called Paladin, which may be of some interest to you because I believe you litigated it.

 

ROD SMOLLA I was the lead lawyer there, right.

 

BOB GARFIELD Tell me about Paladin.

 

ROD SMOLLA Paladin involved a how to murder manual. And so this was a manual produced by a publishing company to instruct people on how to go into business as an assassin. And I was the lead counsel in the case arguing that that book was not protected under the First Amendment. Fox was truly engaged in advocacy. It was perhaps engaged in the big lie about who won the November 3 election, but it wasn't providing detailed how to behind the scenes information, break into the capital, defeat security services and that sort of thing.

 

BOB GARFIELD I want to ask you about one other case, a much more extreme case and one obviously of a vastly more horrific scale than what took place at the Capitol, but nonetheless, in its way, reminiscent. In the 1994 Rwanda genocide, the broadcaster Hutu Power Radio Station not only spent months and years vilifying Tutsi tribesmen, but told its audience to, quote, cut down the tall trees, which was deemed eventually by the International Criminal Tribunal to constitute a crime against humanity. Again, not to in any way equate the scale of the events. But can right-wing media, which so built up rage against supposed immoral and corrupt and tyrannical enemies and incited protests based on a big lie? Can they under U.S. law not be held responsible for anything?

 

ROD SMOLLA Your question is terrific, and it may well be that in the Rwanda example, there was enough specificity, enough exhortation, enough immediacy to put the provokers in Rwanda in a position where even under American law, they would have crossed the line. And I think there are probably speakers who were engaged in extremist exhortations in social media who crossed the line legally leading to the events at the capital. I am doubtful that the broadcasts of Lou Dobbs or others on Fox, though they contributed generally to the atmosphere, had enough pointedness, enough immediacy, enough clarity of intent to cross the line. That's the American commitment to free speech. The First Amendment is not absolute. You lose free speech protection if you intentionally defame someone. You lose free speech protection when you engage in a deliberate fraud. You lose it when you threaten someone with violence. You lose it when you intend to incite immediate violence. We have all of these lines that we have drawn and I think the lines are drawn thoughtfully. So I'm all in favor of holding those accountable when you've got the evidence of accountability there. I think it would become a dangerous business to start down the line and start saying that people that generally create the atmosphere could be subject to criminal sanctions, given our traditional American views on the First Amendment.

 

BOB GARFIELD I guess it's worth observing that we are a liberal democracy and there are dozens of other liberal democracies over in Europe which have a very different approach, which don't even require a connection between incitement and violence, but the very expression of fascistic ideas is enough to get you prosecuted.

 

ROD SMOLLA The fact is that what you've called the European position was once the American position. As late as 1952, it was the American position that involved a case in which persons passing out racist leaflets in my hometown, Chicago, were prosecuted. And the Supreme Court said that prosecution did not violate the First Amendment because racist speech has a tendency to cause social unrest. And in that famous case, the Supreme Court alluded to the Third Reich and where racist speech took Germany because of the propaganda of Hitler, so that was not that long ago. That was the American rule. It is still the American rule in many settings. That's the rule we follow in the workplace, in our schools. That's the rule most corporate employers follow. That's basically the rule that Facebook and Twitter and other social media platforms follow. So we have this kind of double system in the open general marketplace, we let the really evil bad speech go. Government can't prosecute it unless it meets these high standards. But in all of these other settings, in American culture, we don't follow that. We follow the older American rule and the current European rule. And I tend to think that that's probably the healthiest overall for democracy.

 

BOB GARFIELD Which leads me finally to this. We have spent most of this hour discussing various kinds of deplatforming and boycotting that might be brought to bear in order to chasten, moderate, or simply kill Fox News Channel. In the case of a cable company that distributes Fox News Channel to its viewers, in its region or nationally, is that a setting in which someone could decide to deplatform this channel on the basis of all that we have discussed in the last few minutes?

 

ROD SMOLLA The answer is yes. The cable companies are private actors that can make their own decisions. They could decide that the hew and cry against Fox News is enough for them to distance themselves. And of course, we've already seen the deplatforming of many speakers, including the former president, from platforms such as Twitter. But here's my cautionary note - that speech is not going to go away, it's just going to be driven to other platforms. And that's the risk you have. At least when it's on Fox, those who oppose it can rail against it. And there's some degree left of the marketplace of ideas and a back and forth. You have to remember, not everybody that appeared on Fox was part of this program. There were legitimate journalistic statements. People like Chris Wallace, even Tucker Carlson at one point called to account Sydney Powell's theories about the election, and so it may be that we're a bit safer being able to listen and have some dialog than having it all driven underground. And that could be one of those situations where be careful what you wish for, because it may be you end up in a more dangerous place.

 

BOB GARFIELD Rod, thank you so much.

 

ROD SMOLLA My pleasure, Bob. Take care.

 

BOB GARFIELD Rod Smolla is Dean and professor of law at the Delaware Law School of Widener University.

 

If criminal law isn't the solution., How else to enforce moderation on dangerously immoderate media channels? Once upon a time in the world of broadcast, there was just such a legal mechanism, the Fairness Doctrine, which governed broadcasters in the United States for about four decades. It existed for the very purpose of de-platforming demagoguery and propaganda. Earlier, we heard from University of Westminster Professor Steven Barnett, who thinks a retooled Fairness Doctrine or its British regulator equivalent called Ofcom, might be just the ticket.

 

STEVEN BARNETT It certainly works in terms of the levels of trust in broadcast journalism in the UK. If you look at the data that is produced by Ofcom and from other regular surveys of whether British citizens, British voters trust their journalists, the impartiality regime has meant that broadcast journalism, by and large, commands very high levels of trust in the UK. 70 to 75 percent, which is not true of other sources of news.

 

BOB GARFIELD Enticing, but perhaps not the panacea it may at first glance suggest. Nicole Hemmer is a research scholar at Columbia University and author of Messengers of the Right: Conservative Media and the Transformation of American Politics. She says that, for starters, the Fairness Doctrine was meant to cure the ills of a vastly different media ecosystem.

 

NICOLE HEMMER So the Fairness Doctrine, it comes out of this moment immediately after World War II, when Americans are pretty worried about radio propaganda. They had just watched the rise of fascism in Europe, they had seen proto fascist movements in the U.S. using radio as propaganda tools. And there was a real concern that that was going to happen in the United States as well. So in 1941, the FCC issued something called the Mayflower Doctrine, which says that there can be no editorializing on radio, there can be no opinion. After the war has passed, there's kind of a reflection that maybe that's gone too far, and so they come up with the Fairness Doctrine as a way of saying, OK, we can debate politics, we can share opinions on the radio, but we are really worried about totalitarianism and propaganda. So we have to have some rules that make sure that controversial issues are covered fairly.

 

BOB GARFIELD Didn't that do the trick?

 

NICOLE HEMMER Well, it sometimes did the trick a little, which is as resounding an endorsement as I can give it. It was put in place in order to prevent radio stations in particular and later television stations from becoming propaganda outlets, and to a certain extent, that worked. Whenever a news program or program in general reflected just one side of a controversial issue, people who represented the other side could complain to the FCC and demand to have their point of view represented.

 

BOB GARFIELD You say that with a number of caveats. There's a but, in fact, there's a number of buts.

 

NICOLE HEMMER First and foremost, for people who are thinking about the media environment today is that it only applies to broadcast media. Today, there just isn't a lot of our media that's carried on broadcasts. It's carried on cable and podcasts and the Internet. It never applied to print. So it was a pretty narrow doctrine.

 

BOB GARFIELD And it was enforceable because broadcasters were using public broadcast spectrum to deliver their product.

 

NICOLE HEMMER And they were able to profit off of using what were essentially public airwaves. And the FCC could conceivably come in and take away that license if a broadcaster was not covering issues fairly. If it was actually using its bandwidth for propaganda. You know, the FCC didn't actually intervene all that often, and some people worried that it had a kind of chilling effect on political speech. That instead of covering controversial issues and covering them fairly, a lot of stations just didn't touch controversial political issues at all because they didn't want to have to deal with finding these contrary voices and giving over their airtime to this kind of programming.

 

BOB GARFIELD It went away in the 80s during the Reagan administration. It's not that Ronald Reagan axed the Fairness Doctrine, he just let it expire?

 

NICOLE HEMMER So actually, he had appointed FCC commissioners to look at ways of getting rid of the Fairness Doctrine. So it would remain on the books after the 1980s. But as of 1987, the FCC had voted that they were no longer going to enforce this. So even though it's still technically existed like some of those old laws about where you can ride your horse, it no longer was really enforced anymore. And so by 1987, the Fairness Doctrine is dead letter as far as a regulation.

 

BOB GARFIELD Understanding that Reaganism was all about deregulation. Still, the Fairness Doctrine had been employed by conservatives as a line of defense against what they considered to be an overwhelmingly liberal media.

 

NICOLE HEMMER This was a big change in the conservative movement in the 1970s. In the 1950s and 60s, conservatives hated the Fairness Doctrine. They felt like it was being used to silence their voices, but in the 1960s and 70s, Richard Nixon and some other conservatives thought, you know, if we control the federal government, then we can actually use the FCC to promote conservative ideas. So conservatives, particularly through something called Accuracy and Media, which was a media watchdog group, would file Fairness Doctrine complaints rapidly throughout the 1970s in concert with the Nixon administration to try to get administration views and conservative views on more television stations and radio stations.

 

BOB GARFIELD There is one character in the Nixon administration drama. A guy named Charles Colson, one of the Watergate coconspirators – spent a fair amount of time in prison, who was right in the thick of a kind of shadow campaign.

 

NICOLE HEMMER Oh, yes, Chuck Colson, who never met a dirty trick that he wasn't willing to go all in on, was really the main person in the Nixon administration who was pushing for weaponizing the Fairness Doctrine in order to damage independent media outlets. And so he teams up with Reed Irvine of Accuracy and Media, this conservative watchdog group, and looks for documentaries to attack, looks for ways to file Fairness Doctrine complaints against PBS, which the Nixon administration wanted to begin to defund. He's really in there getting his hands dirty when it comes to using the Fairness Doctrine as part of a bigger project to discredit American media so that the Nixon administration can get on about its business with little journalistic oversight. So in 1971, CBS released a documentary called "Selling the Pentagon."

 

[CLIP] 

 

NARRATOR It maintains a public relations division to inform people of its activities. In December, Congress cut the appropriations for this division, but according to the Pentagon, it will still spend thirty million dollars this year on public affairs. There have been recent charges in the press and in Congress that the department is using these public relations funds not merely to inform, but to convince and persuade the public on vital issues of war and peace. [END CLIP]

 

NICOLE HEMMER The Nixon administration lobbied CBS. They filed Fairness Doctrine complaints so that they could get administration officials pushing back against it, and CBS gave them that airtime. They brought on Spiro Agnew, they brought on Secretary of Defense Melvin Laird. They really did change in response to these Fairness Doctrine complaints. And then you would get these segments on 60 Minutes, the CBS News magazine show called Point / Counterpoint, where James J. Kilpatrick, who was an arch conservative, would face off against a liberal host and the two of them would debate.

 

[CLIP] 

 

KILPATRICK This president is the only president we have. And apart from his lamentable blindness as to Watergate, I happen to think he's done a good job. I haven't lost confidence in him.

 

VON HOFFMAN I'm surprised that such a strong law and order capital punishment guy like you, Jack, would draw back at the prospect of a good old fashioned public hanging. [END CLIP]

 

NICOLE HEMMER That debate style show, which was at first very anodyne, would lay the groundwork for in the 1980s shows like The McLaughlin Group on PBS or Crossfire on CNN, which were much more combative.

 

BOB GARFIELD We began talking about the Fairness Doctrine evolving out of a reaction to fascist propaganda in Europe. And here, I mean, it might have been called the Father Coughlin regulation because we had demagogic radio programs that won a large audience here in advance of World War 2. But, you know, lo and behold, nearly a century later, here we are again. I don't know if Tucker Carlson is Father Coughlin, but he ain't Mister Rogers.

 

NICOLE HEMMER No, he's not. And he's much, much closer to Coughlin. You know, the difference between then and now, there's a few things flying back in the 1930s and 1940s, you only had a handful of radio stations. If one of your local radio stations was a propaganda station, you might not have anything else to listen to. The danger of propaganda was that it was inescapable and that people didn't have other options in the 1930s and 40s. The difference now is that we have a profusion of platforms and we have all sorts of places that people can tune into. And it's not that they're forced to watch propaganda, it's that they seek it out. That's a very different dynamic and one that requires different kinds of responses, including looking more closely at why it is there is such a hunger for, frankly, being lied to in American politics.

 

BOB GARFIELD Nicole, thank you very much.

 

NICOLE HEMMER Thank you.

 

BOB GARFIELD Nicole Hemer is a research scholar at Columbia University and author of The Messengers of the Right: Conservative Media and the Transformation of American Politics.

 

Why imagine the deplatforming of a major American media organization? To be clear, it's not about silencing ideological adversaries. As public broadcasters, we are only too keenly aware that even the perception of political bias can pose an existential threat to the kind of reporting that makes some citizens uncomfortable. And no, this is also not about censoring media hyper partisanship, which for about two centuries was the American standard. No, this meditation is simply about the right to choose. The right of customers, advertisers and distributors to choose whom they wish to do business with. And as earlier noted, where markets are concerned, money talks – and we're listening. It all reminds me of something someone said back in 2016, right after the election. That someone was Bill O'Reilly. The platform was Fox News.

 

[CLIP] 

 

O'REILLY If you hurt someone, destroy something or promote anarchy, you then become a danger to the republic. That kind of stuff needs to be punished and quickly. [END CLIP]

 

BOB GARFIELD That's it for this week's show on the media is produced by Alana Casanova Burgess, Micah Loewinger, Leah Feder, Jon Hanrahan, Eloise Blondiau and Rebecca Clark-Callender with help from Alex Hanesworth. Xandra Ellin writes our newsletter, our technical director is Jennifer Munson.

 

Katya Rogers is our executive producer. Bassist composer Ben Allison wrote our theme. On the Media is a production of WNYC Studios. Brooke Gladstone will be back next week. I'm Bob Garfield.

Copyright © 2021 New York Public Radio. All rights reserved. Visit our website terms of use at www.wnyc.org for further information.

 

New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of programming is the audio record.