Five thoughts about a conservative court

The President’s selection of Brett Kavanaugh to replace retiring Supreme Court Justice Anthony Kennedy is getting the expected party line reactions this morning. Conservatives think it’s great. Liberals think it sucks, and so it goes. As one of the insiders who helped Pat Robertson shape his presentation of right wing news, I know well not only the religious zeal behind the conservative perspective but also what will come next. As usual, I have a few opinions.

One, the conservative majority that a Kavanaugh approval will make is built on an immoral and unethical foundation, and it will have consequences. Life will tolerate cultural manipulation only so long. This is not the will of the people, although that’s how it’s going to be presented. It’s the will of those who blocked the nomination of Merrick Garland by Barack Obama in 2016, those who also represent the 1%. Christian conservatives think it’s all about moral issues like abortion, the Ten Commandments, and school prayer, but a conservative court is more so a pro-corporation court. Folks, it’s always and always about the money.

Two, as a consequence of number one above, the kerfuffle about possibly overturning Roe v Wade is a productive sideshow for those occupying 1% status. Everything that the World War II generation and before fought to accomplish in the work force and socially will be shoved aside, in effect, granting license to corporations to do as they please in the generation of profit. How easily people forget, for example, that the entitlement of weekends is a gift of U.S. labor efforts in Congress and the White House. “Oh, Terry, they’ll never do away with weekends.” Really? Where’s the governor that will prevent it?

Three, assuming the sideshow produces fruit for Christian conservatives, Roe v Wade is only the beginning. There’s also pornography, school prayer and display of the Ten Commandments that need, um, “correcting” in the establishment of a Christian nation. And, let’s not be fools. Abortion isn’t about innocent babies losing their lives anyway; it’s about the act that created the unwanted baby in the first place. In this area, there is no end to the mischief that can be generated by a 5-4 or 6-3 conservative court.

Four, as a consequence to numbers two and three, the court will have to invade the institution of MEDICINE in order to make illegal what is at core a MEDICAL decision between doctor and patient. This precedent would have profound implications for the future, especially in the area of genetics and even its study. Think it can’t happen? We’ve already had the government take pain relief out of the hands of doctors and put it into the law and order category. A conservative court would also most certainly put caps on lawsuits against doctors were it not for the fact that our legislative branch is filled with trial lawyers.

Five, conservatives are all about order and the ability to manage it. It’s the top personality trait of conservatives, so look for a series of cases that present opposition as chaotic or without order. The arts, for example, will always lose out to law enforcement or the military in a zero sum, order-dominant atmosphere.

As I wrote earlier, the fascinating thing about this to me is the misuse of the “strict Constitutionalist” litmus test for conservative nominees, which is based on the view that the Constitution never considered laws being created by Supreme Court rulings. This is the judicial branch’s method of creating law, which according to the Constitution, is reserved for the legislative branch. It’s the result of judicial precedent, something we hear about all the time in our crime dramas on TV. In the conservative legal hierarchy, judges are supposed to decide the merits of individual cases, not actually make law that will impact decisions in subsequent cases. Pat Robertson hammered this concept home in program after program in attempts to help God fix what was wrong with the Supreme Court. However, this, it turns out, is not the case when it comes to decisions that leave conservative results, for then it’s all right for judges to “legislate from the bench.” Who knew?

If all this continues, one day we’re going to have to look at how the Supreme Court is formed. If it is the political instrument that both sides seem to think it is, that’s going to have to be changed. Perhaps we should elect four liberals, four conservatives, and one swing vote. That would require a Constitutional Amendment, so the likelihood is not good.

Sigh.

What the white Evangelicals really want

U.S. News & World Report photo

It’s all about abortion. Everything we’re witnessing with the Presidency of Donald Trump and his fervent – almost fanatical – support from white Evangelicals is, in the end, about abortion. You can add prayer in schools and display of the Ten Commandments, but the biggie is abortion. These issues have in common one thing – they became issues due to Supreme Court rulings – and the possibility of “fixing” these decisions through a more conservative Supreme Court is what allows certain Christians to look the other way through everything else about Trump, his character, and his dictatorial management of the government.

The “think” is that God put Trump in office, so that decades of cultural shifting to the left can be corrected. It’s a trap, an illusion seized by perhaps well-intended and exasperated people who long for what they think were better days. In their zeal to this end, they’ve become pawns in a bait and switch effort by the haves to seize the moment for themselves.

Here’s a simple description of what the (mostly white) Evangelicals want from a very good BBC report on the matter:

For decades the US Supreme Court – America’s highest legal authority – has been finely politically balanced. “The Nine” include four liberal voices, four conservatives, and one swing vote.

The idea, of course, is that changing the ideology of the high court will change the culture for at least a generation, but this is a very deceptive perspective. That’s because the underlying issue is the concept of case law, where legal precedents established through court decisions actually become law. Conservatives like to use the phrase “strict Constitutionalist” as a litmus test for court appointees. It’s a euphemism for “legislators make laws, not judges,” and while an argument can be made that case law isn’t in the U.S. Constitution, it doesn’t follow that our judicial system will ever rule against the idea that precedent is a factor in the judging of cases. And as long as our legislative bodies are dominated by lawyers, it’s nearly impossible to achieve any change through legislation. A conservative lawyer, after all, is still a lawyer. Never forget that.

Another phrase that conservatives use is “legislating from the bench,” which is just another way of saying the judicial system should not be “making” law. Wash. Rinse. Repeat.

So, if judges shouldn’t be making law through precedent, what is their alternative? I got a deep education on this from Pat Robertson and the faculty of CBN University’s law school during my time as producer of The 700 Club in the 1980s. The alternative is that courts only make rulings on the individual cases before them and that no precedent ruling can be considered. Verdicts are decided on the merits of the case, period. If the issue is so important as to require the creation of law, then that is a matter for our legislative bodies, for they are our elected representatives, according to the Constitution.

However – and here’s where it gets a little nuts – if this is the basis for their argument, then why the need to shift the ideology of the court? After all, if rulings are limited only to the cases before them, then why worry about their ideological make-up influencing culture? Could it be that abortion is merely an emotional appeal for conservatives who wish really to influence culture on behalf of their true beneficiaries, the haves who control everything in the first place? Donald Trump has not influenced the outcomes of the high court, but he certainly has done well for the billionaires who dwell in the high places.

Nathaniel Rachman of the Oxford student paper, OxStu, published an insightful piece with the headline “The spectre of a conservative Supreme Court is a fantasy,” in which he notes that the ideology of the court has had little to do with the important issues that conservatives want fixed anyway:

Even if the court’s judges remain solidly conservative however, they can still produce the occasional surprising decision. Clarence Thomas, the court’s most fanatical conservative, recently helped strike down an attempt to suppress black voters in North Carolina, while Neil Gorsuch is now facing Trump’s criticism after rescuing the liberal justices in their attempts to strike down a vague immigration law. Sometimes such defections can be transformative; when Obamacare, the central prop to the US healthcare system seemed fatally threatened, the Chief Justice John Roberts saved it, and when the court found a fundamental right to same-sex marriage, it was Anthony Kennedy who authored the 5-4 opinion. Roberts’ court is concerned with how the world looks upon it, and the chief justice is keenly aware of the shadow of history looming over him. The reputation of his bench is vital to him. Even if Trump appoints a consistent hardliner, he has no guarantee that the rest of the court would not shift in response, fearing a legacy that will go down in infamy.

This is the problem when ideology attempts to shift the culture through managing it from the top. The culture isn’t shifted by ideology; it’s shifted by people and the energy of their social movements. Therefore, issues eventually finding their way to the high court isn’t by chance, and it’s nowhere near as simple as the right wants to make it sound.

Besides, as I’ve written before, abortion is really about sex and the Biblical position that fornication is sin. We have to be honest about this, for we always have to “play the tape to its end” when considering issues such as abortion. What would be the Evangelicals’ view of how people “should” behave in a world without legal abortion? I think we all know the answer to that. Moreover, anti-abortion law becomes harder and harder as the evidence mounts about how birth control reduces the abortion rate. Our current rate is now BELOW what it was in 1973, when it was made legal by the high court.

My daughter is about to pop with baby number three, and we’re all pretty excited about it. This is especially so after her experience with baby number two, who died of severe birth defects six hours after birth. She learned of the birth defects at 20 weeks and went through this despite the knowledge that she “could have” gotten an abortion. She made the decision – the choice – for herself not to do so, and it was remarkable to witness. For her, it was a moral issue, not a legal one, and she could not have made such a decision for herself, had abortion been illegal. This experience has firmed my resolve that the Supreme Court got it right with Roe v Wade.

EDITOR’S NOTE: I strongly recommend you read the linked materials.

This could be a lethal blow

I’ve been telling you for years about the cracking foundation of the world of local broadcasting. Well, new FCC Chairman Tom Wheeler is asking his fellow Commissioners to vote March 31st on a proposal from him that would stick a rather large knife in the side of broadcast companies. TVNewsCheck describes it this way:

FCC Chairman Tom Wheeler will ask his fellow commissioner to vote March 31 on a proposal that will ban joint sales agreements and joint TV station retransmission consent negotiations, a senior FCC official told reporters Thursday.

The JSA and retransmission consent bans will become effective immediately, assuming a majority of the agency’s commissioners vote in support of the regulations, an FCC source says.

A senior FCC official also says the JSA crackdown will apply to pending station transactions at the FCC, and provide up to two years for existing JSAs to unwind.

The official also says Wheeler is proposing to adopt an expedited waiver review process under which broadcasters will be able to seek waivers for JSAs.

If a broadcaster can show that a particular JSA serves the public interest, it may be able to get a waiver to continue a joint sales sharing deal, the FCC said.

You need to go read the link, because the reaction in the comments and at the end of the article are worth much.

Here’s my take. Between Joint Service Agreements, Local Marketing Agreements, Shared Service Agreements, Transitional Service Agreements, shadow corporations and probably a host of others I can’t recall, it’s really hard to tell who owns the network affiliate down the street. These things have  so changed the face of broadcasting — by reducing the number of faces on the air in many, many markets — that the real losers have been the same public that broadcast spectrum is given to these people in the first place to serve. It’s all corporate doings nowadays, which makes the whole industry seem like greedy Wall Street monsters. Many more people will lose jobs, because these corporations exist to line the pockets of those who run them. Nothing wrong with that, of course, but it’s not, I suspect, what that spectrum was originally intended to create.

The upside is that this move will put pressure on broadcasters to participate in spectrum auctions, which will grow the mobile Web, while will continue to advance what Jay Rosen calls “The Great Horizontal.” One to one communications, without middlemen, is one of the beauties of the network, and broadcasters’ one-to-many model is increasingly archaic. Ahead lies a reworking of everything, including many laws that were created for the days of one-to-many, and frankly, I can’t wait. Broadcasting will continue, at the very least as cable channels, but this proposal, if approved on March 31st, means a major blow to certain groups of people who thought their money tree had permanent roots.

And think about it, one potential end to this is the irrelevance of Aereo, which requires broadcast signals in order to justify its business model.

The Obama Administration supports broadcasters against Aereo and then turns around and says, “We’ll eliminate your ownership loopholes and end consolidated retransmission negotiations.” Frankly, broadcasters would have preferred it to be the other way around.

Honestly, let the future in, people. Let the future in.

New York Press Club responds to police rule change

The New York Press Club has fired off a letter to police commissioner Raymond Kelly (I thought it was Tom Selleck) demanding an explanation among other things for a rather striking rule change impacting the press. Reporters used to be able to obtain police reports at the precincts they were covering, but they must now go to a central office. Here’s the letter:

December 9, 2013

Commissioner Raymond W. Kelly
New York City Police Department
One Police Plaza
New York, NY 10038

Dear Commissioner Kelly:

On behalf of the New York Press Club, I strongly protest NYPD’s latest decision to cut-off a long-standing source of information, vital to New Yorkers.

The policy change to deny media access to complaint reports at the precinct level is, to us, another example of blatant hostility by NYPD toward locally-based media outlets that disseminate information about neighborhood occurrences to residents of those neighborhoods. We are stumped by the question of why NYPD now requires community reporters to scurry down to the notoriously uncommunicative and uncooperative DCPI office to examine incident reports that originate locally. One inescapable conclusion about the new policy is that NYPD wishes to “edit” or otherwise obfuscate the information in question. At the very least, the policy unnecessarily complicates public access to information and data that should instead be freely available.

This new restriction on openness and accessibility is, in our opinion, another disturbing example of the department’s recent, relentless slide towards non-accountability. We therefore request restoration of the previous, long-standing policy and its expansion to all precincts. We also request, for publication, an explanation of the reasoning behind NYPD’s latest decision to constrict access.

Thank you,

Sincerely,

Larry Seary
President

CC: Mayor Michael Bloomberg, Mayor-elect William de Blasio, William J. Bratton, John McCarthy, Donna Lieberman, Esq.

This is a big deal, folks, and I’m surprised I haven’t seen it elsewhere. It’s a big deal, because it signals a reaction to the concept of “everybody’s a reporter.” It’s the kind of thing we’re going to see repeated as the institutions of Western culture are challenged by weakening silos and authority that’s spread horizontally across a world that used to be entirely top-down. The press has always been defined by its access, but as Mr. Seary notes above, even press club members themselves face a form editing in the oldest information gathering process on the planet – the police beat.

While nothing about this is good for the First Amendment, it does point out the absurdity of trying to govern a horizontal culture with top-down rules.

Stay tuned. This one is going to get interesting.

Of vinyl records and 8-track tapes

U.S. Supreme Court Justice Samuel AlitoEvery once in awhile a quote comes a long that’s bound to stick around for awhile, one you’ll likely see many times downstream. This one is from U.S. Supreme Court Justice Samuel Alito (a George W. Bush nominee) during yesterday’s hearing on cursing and nudity over broadcasting’s airwaves. Suggesting that the market itself should be allowed to deal with the issue without regulatory interference, Justice Alito made this remarkable statement:

Broadcast TV is living on borrowed time. It is not going to be long before it goes the way of vinyl records and eight-track tapes.

What’s most remarkable here is its source, the mind of a U.S. Supreme Court Justice. If this is the way a member of the final court in the land views things, broadcasting has no hope of ever finding relief in the courts against market forces that threaten its existence. The spectrum that the government licenses to broadcast companies is eventually going to wireless broadband, and that will doubtless end up in the courts. Alito is not alone in this belief, but he’s the highest ranking government official that I’ve ever heard say it.

My friend Ethan Beute asked via Twitter “how long?” I think this is going to come upon the industry much sooner than later. It will appear like a thief in the night, although it has been visible and approaching for many years. Broadcasters have been playing defense all this time, while intruders from Silicon Valley and elsewhere have been staging guerrilla and flanking attacks with armies funded by venture capital. Lobbyists representing the NAB and local interests are at war with those representing the Telcos and others, and it will likely be bloody. In the end, though, it’s pretty hard to deny the interests of the public in the matter, and that is strongly tilted to the wireless broadband side.

My advice to broadcasters has always been to move forward strategically on two separate paths. Get as much as we can out of the mass media market available to us via those airwaves and at the same time develop new ways to make money. Mass is shrinking and fragmenting. We can’t “fix” that, but we can find new ways to replace the revenue. We must look outside our comfort zone, but we CAN drive the car and fix it at the same time.

Vinyl records and 8-track tapes evolved, and so can we.

CJR story brought to you by the FCC

Columbia Journalism Review logoThe Columbia Journalism Review has presented — as a news commentary — a piece indirectly written by the FCC that favors the commission’s position in a key legislative issue involving broadcasters. The piece hypocritically trashes broadcasters for the same kind of behavior it represents, and it does so using the popular buzz term “transparency.” This is a smokescreen for what’s really being conveyed.

First, a little background.

Long ago, our government decided that “the airwaves” belong to the public and, therefore, should be regulated by the public’s representatives in Washington. Licenses to “use” the public’s airwaves were granted and maintained by the Federal Communications Commission (FCC), and so was born an antagonistic relationship between the licensor and the licensees. Broadcasters have long held the upper hand in this antipathy. They are a powerful group with the ability to easily reach the public “back home,” where legislators raise money and votes. The National Association of Broadcasters was and is a powerful lobbying organization.

However, there’s been a recent shifting of that power, and things are a little different today. Armed with knowledge of a real demand for wireless broadband — which would use that same spectrum owned by the public — the FCC is turning up the heat on broadcasters. This will evolve to an all-out war that threatens the core value of all of broadcasting, and as the number of people receiving TV via those airwaves alone dwindles, the case of the whole industry weakens. We’re in a season when broadcasters can extract value two ways: through subscriber revenues from cable providers and via advertising based on reach, at least some of which is over-the-air. As a group, therefore, broadcasters must promote both, and that hands the FCC an industry with a split focus to regulate. The FCC, however, cares mostly about that spectrum.

We can argue that cord-cutting raises the value of that over-the-air signal — especially in high-definition — but the longer technicians are able to innovate and resolve compression and other hi-def delivery problems, the more viable TV over IP becomes, and so we must admit that broadcasting’s “cake and eat it too” has a limited window. Broadcasters are well aware of this “problem,” and are working on so-called solutions that limit broadcast signals over IP to those geographic regions determined by broadcast licenses, thereby maintaining the old status quo. The weakness of one solution supported by the NAB and big broadcast companies (Syncbak) is that it requires the broadcast signal to verify geographic position within the market. This will be a hard proposition to sell Congress or the FCC as pressure mounts for broadband spectrum.

It’s into this scenario that an advisor to the FCC Chairman was begun writing what I would call “attack pieces” published in the Columbia Journalism Review. What or who is being attacked? Broadcasting, specifically television. It would be untoward for me to suggest that this is a deliberate effort to cloud the picture of the FCC versus broadcasting, but it does strike me as odd that such vertically-slanted stories would be published in the high church of the Columbia Journalism Review.

Steve Waldman is the writer/advisor, and his latest (This News Story Is Brought to You By…) is about how some television stations “allow sponsors to dictate content” within or close to newscasts. Mr. Waldman was the lead author of the FCC’s Information Needs of Communities study, which challenged broadcasters and helped lay the groundwork for the above arguments about the best use of spectrum.

One of Mr. Waldman’s major concerns in the CJR article is the use by certain television stations of video news releases disguised as news stories or other methods that those with a position employ to escape the wall of separation between news and advertising via the public’s airwaves. In making this charge in the Columbia Journalism Review, however, Mr. Waldman is guilty of the exact crime of which he accuses broadcasters, namely the presentation of a government position paper as news or commentary. I find it astonishing that the CJR would permit this, and yet, there it is.

That said, Mr. Waldman’s point is well-taken and broadcasters most certainly should be following the law and clearly labeling such as sponsored. But so should the Columbia Journalism Review, for this piece was surely presented — however indirectly — by the FCC.