Local TV News Fix: Full Free Speech Rights

Remember Steve Waldman. He’s the former reporter and editor and pal of FCC Chairman Julius Genachowski whom Genachowski hired in November 2009 to lead a task force to figure out what if anything could be done to bolster local journalism, particularly as it is practiced by newspapers and TV stations.

We did a story about him at the time of his hiring, in which he said all the right things. But he has been quiet ever since, although I know that his agents have been out there asking questions.

Well, the cone of silence may be lifting. Tomorrow, he is slated to give a speech in Washington before the Media Institute, an outfit that promotes First Amendment rights. I presume that after 16 months of researching and noodling he is ready to share some of his findings and perhaps make a policy recommendation or two.

I don’t know what he is going to say (he doesn’t return our phone calls anymore), but he could start by condemning the FCC’s fining of two TV stations $4,000 each a couple of weeks ago for violating rules governing the use of video news releases, or VNRs, which at their worst are infomercials made to look like news reports that companies distribute and lazy stations sometimes slip into newscasts.

The rules are not onerous. They don’t prohibit the use of VNRs, only that the stations fully disclose their source and whether they are paid to air them. But they are an affront to the free speech rights of broadcasters — yet another reminder of their second-class First Amendment status.

The targets of the fines are WMGM, an NBC affiliate owned by Access.1 Communications and licensed to Wildwood, N.J., in the shadow of WCAU Philadelphia, and KMSP, the Fox O&O serving Minneapolis.

KMSP aired a VNR from General Motors in 2006 suggesting that the auto giant was making a comeback based in part on its jazzy new convertibles, which, GM claimed, were selling faster than Florida condos. As you may recall, the comeback fell a little short.

WMGM’s infraction was even more egregious. It aired a sales pitch for a patent medicine, an elixir for knocking out symptoms of the common cold.

On journalistic grounds, neither incident can be defended. The stations broadcast junk, no doubt misleading many viewers who had put their trust in the stations.

Part of the stations’ defense has been that they received no direct compensation from the companies that produced the VNRs. If so, their airing can’t be defended on commercial grounds either. The stations essentially gave away air time. That doesn’t sound like a formula for success. Is anybody managing these stations?

But the broadcasts can be defended on First Amendment grounds.

The FCC — the government, that is — has no right to regulate what a TV station can or cannot air any more than it can regulate what a newspaper can print or website can post.

No matter how well intentioned, the government should not be anywhere near producers as they decide what will constitute the evening news, be it the finest investigative reporting or an assemblage of the cheesiest VNRs.

Oh, I know the government thinks it has the right to muddle in broadcast programming and it has history and court cases to back up the claim. But I also have no doubt that one day the courts will reject the idea of bureaucrats in newsroom. They just need the right case.

That case could be WMGM or KMSP. Either could refuse to pay on constitutional grounds and force the issue into the courts. KMSP actually made the First Amendment argument when it was first notified by the FCC that it might be fined.

But such a challenge would cost a lot of money. In fact, tiny WMGM has already decided to pay the $4,000. “We are a little station,” GM Ron Smith told me. “We have spent a lot on legal bills already.”

Fox, too, will be inclined to pay the fine rather than plunge into years of costly litigation. But as a leading purveyor of news with a thriving string of TV stations and a popular 24/7 cable news network, it has some responsibility to fight the First Amendment fights as they come up. A Fox attorney said that no decision has yet been made.

Here’s hoping that KMSP goes for it.

If it were to win, it might secure for broadcasting the same liberties as other media. You won’t have to worry about how you use VNRs — there are journalistically sound ways — and other third-party materials. If the ruling is broad enough, you won’t have to worry about letting a bad word slip or scheduling unprofitable “public interest” programming. You will be free of all the chains that government can use to jerk you around.

There is an alternative to legal recourse. Congress mandated the disclosure rules. Congress can eliminate or at least amend them to exempt newscasts. Of course, getting Congress to act would take a good deal of persuasion.

This brings us back to Steve Waldman and his speech tomorrow. For the sake of better local TV news, he should do more than condemn the FCC fines. He should call on Congress to recognize that broadcasters in the multimedia world of the 21^st century deserve full First Amendment freedom and to rescind the disclosure law and any other that limits that freedom in any way.

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