Why Regulation And Free Speech Don’t Mix

Robert Caro’s latest installment of his five-volume biography of Lyndon Johnson spells out how the president used the FCC to cajole and control TV and radio station owners, a tactic later adopted by Richard Nixon to try to control the Watergate scandal. Heed the words of the late judge David Bazelon: “Under the First Amendment, the licensor's motivation should be irrelevant: the exercise of power over speech leads the government knee-deep into regulation of expression. And that, we have always assumed, is forbidden by the First Amendment."

My unreconstructed leftist friends from college can’t quite understand why I insist that the regulation of broadcasters is an infringement of their First Amendment rights to freely say what they want to say.

Because broadcasters are licensed by the government, they are subject to intimidation by the government, I ably argue. They are under constant threat of having their license taken away or simply tied up the red tape. Each and every rule is a chain that government officials can use to jerk them around and discourage them from doing or saying the “wrong” thing.

The next time I get into this with my friends I will have fresh evidence.

The fourth installment of Robert Caro’s prodigious five-part biography of Lyndon Johnson, The Passage of Power, is as much a dissertation on the practice of politics as it is a story of the man who might be the greatest American political practitioner of the 20th century.

If you really want to know how things happen in Washington, this is the book for you. But before you click over to Amazon, you have to ask yourself whether you really want to know. It isn’t all pretty.

In the weeks immediately following Kennedy’s assassination and LBJ’s sudden elevation to the presidency, Johnson moved swiftly to consolidate and assert his power. Getting the media on board and in line was high on the agenda.


For most, this meant heavy doses of Texan charm and BBQ at the Johnson Ranch outside Austin. But for some, it meant being on the receiving end of Johnson’s bullying.

According to Caro, Johnson was worried about a 41-year-old reporter for the Dallas Times-Herald. Margaret Mayer had begun investigating Johnson’s Austin TV station KTBC and its companion AM. The stations were suspected of being a conduit for payments (bribes may not be too harsh a word) in the form of advertising buys to Johnson and his campaigns.

Johnson called the paper’s managing editor, a Johnson partisan named Albert Jackson, and insisted that Mayer and her investigation be shut down. Jackson immediately caved, but that didn’t stop Johnson from going on about all the misfortunes that might befall the owners of the paper and its Dallas broadcast stations, KLRD-AM and KLRD-TV.

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At  that time, stations had to report the ratio of commercial to non-revenue producing content so that FCC regulators could judge whether the station was devoting sufficient time to public service. Then as now, the FCC couldn’t get its head around the idea that you could make money and serve the public interest at the same time.

“Get this goddamned Margaret Mayer satisfied … because I’ll ask Clyde Rembert [the stations’ GM] how much commercial he is,” Johnson barked at Jackson. “I remember he was 98% when I was helping him.”

For good measure, Johnson also threatened to go after the corporate and tax records of the owners. “A President oughtn’t be calling about chickenshit stuff like this,” Johnson said.

That was the end of Ms. Mayer’s investigation into Johnson’s affairs.

No one knows how many time Johnson used the FCC to twist the arms of broadcasters. As a station owner himself, he certainly knew what the rules were and he was not a man to leave leverage unused.

Johnson’s successor, Richard Nixon, also used the FCC’s power over stations to control broadcasters. Nixon was relentless in his campaign to soften the networks’ coverage of his administration, harassing CBS especially. The late Nixon hatchet man Charles Colson was the go-between.

Nixon was at this worst when Watergate started to close in on him. In a White House meeting a few months after the break-in, John Dean brought up the Washington Post’s dogged investigation of the scandal.

“The main thing is the Post is going to have damnable, damnable problems out of this one,” Nixon said on one of the famous tapes. “They have a television station…and they’re going to have to get it renewed.”

Soon after, Nixon business associates did challenge the renewal of WJXT Jacksonville, Fla. The challenge failed. As Emily Barr will tell you, the station remains in the Washington Post Co. portfolio.

(The thing you’ve got to grudgingly admire about Johnson is that he seemed to do his own dirty work. From what I’ve read, Nixon left it to others, a practice that ultimately led to his downfall.)

These are the egregious examples. In the normal course of events, it doesn’t work this way.

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Broadcasters are so wary of running afoul of FCC rules and somehow impairing their licenses or getting their various applications through the agency that it doesn’t take much to keep them in line.

Government’s usual method is the “raised eyebrow” or as the Latin-loving lawyers might say, sub silentio.

If President Obama or FCC Chairman Julius Genachowski wanted to do something about TV violence, they would only have to give a few speeches about how it would be nice if broadcasters did something about TV violence. Broadcasters would immediately start jumping up and down looking for ways to appease them.

In 1975, when broadcasting was at its zenith, David Bazelon, chief judge for the U.S. Court of Appeals in Washington, wrote an article for the Duke Law Journal that eloquently made the case for why licensed media and the First Amendment were incompatible.

Sometimes the motive of the government is “laudable,” perhaps to improve the quality of programming or to mitigate racial discrimination, he wrote. “But under the First Amendment, the licensor’s motivation should be irrelevant: the exercise of power over speech leads the government knee-deep into regulation of expression. And that, we have always assumed, is forbidden by the First Amendment.”

Bazelon recognized that the temptation to regulate the press is always present. “Somehow we do not really think that the press should be free; they are too powerful, they are arbitrary, they are self serving….,” he wrote. “I have said before and I repeat now that the press has abused its tremendous power, particularly the power of TV, largely for its own private profit, at the expense of the public interest.

“But I do not personally believe in the efficacy of, nor do I think the First Amendment permits, government intervention to cure those abuses.”

I would add only that the ability of the government to intervene brings with it the potential for other kinds of abuse.

We can thank Robert Caro for the latest lesson.

Harry A. Jessell is editor of TVNewsCheck. He can be contacted at 973-701-1067 or [email protected]. You can read earlier columns here.

Comments (1)

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Ellen Samrock says:

December 28, 2012 at 9:17 pm

Well, that explains why the media has been so busy fawning over Obama. So far, that tactic hasn’t yielded anything for broadcasters.

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