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Public broadcasting has been in critics' crosshairs since its creation in 1967. Assailed from all sides with allegations of bias, charges of political influence, and threats to defund their operations, public broadcasters have responded with everything from outright denial to personnel changes, but never have they squarely faced the fundamental problem: government-funded media companies are inherently problematic and impossible to reconcile with either the First Amendment or a government of constitutionally limited powers. The Constitution does not give Congress the power to create media companies, and we should heed the Founders' wisdom on this matter. In fact, consistent with that wisdom, before the Corporation for Public Broadcasting was created, nonprofit, noncommercial media stations enjoyed a vibrant existence, remaining free to criticize current policies and exhibit whatever bias they wished. Yet today the taxpayer contribution to public broadcasting, although relatively small, clearly influences the decisions of public broadcasting officials. In fact, public broadcasting suffers the main downside of public funding -- political influence and control -- yet enjoys little of the upside -- a significant taxpayer contribution that would relieve it of the need to seek corporate underwriting and listener donations. But the limited taxpayer funding also shows that defunding can be relatively painless. Public broadcasting not only can survive on its own, it can thrive -- and be free.
The First Amendment to the U.S. Constitution recognizes a laissez-faire policy toward speech and the press. The Framers of the Bill of Rights worried that the self-interest of politicians fostered suppression of speech. In contrast, some constitutional theorists have argued that the Constitution empowers, rather than restricts, the federal government to manage speech in order to attain the values implicit in the First Amendment. The government managed broadcast speech for some time, in part through the Fairness Doctrine, which was said to promote balanced public debate and "an uninhibited marketplace of ideas." The history of the Fairness Doctrine confirms the validity of the concerns of the Framers of the First Amendment, because federal officials and their agents used and sought to use the Fairness Doctrine to silence critics of three presidencies. Broadcasters adapted to the Fairness Doctrine by avoiding controversial speech, thereby chilling public debate on vital matters. The Federal Communications Commission is proposing to manage broadcast speech by imposing localism requirements, including content requirements and advisory boards to oversee managing stations. This proposal limits the editorial independence of license holders to serve the public interest. The history of the Fairness Doctrine suggests that federal officials who make and enforce such policies are more concerned with limiting political debate than they are with advancing local concerns or the public interest. Like the Fairness Doctrine, the FCC's localism initiative poses the risk of restricting speech. Our unhappy experience with the Fairness Doctrine suggests that imposing localism mandates on broadcasters is unlikely to serve the public interest in constitutional propriety and uninhibited political debate.
Since the passage of the Sarbanes-Oxley Act in 2002, the Financial Accounting Standards Board has passed rules that it promises will make corporate accounting more transparent. In fact, its revised Generally Accepted Accounting Principles have made it difficult for investors -- or even CEOs -- to understand a company's financial report. The first step in the wrong direction came when FASB mandated that companies list "intangibles" such as "goodwill" as corporate assets, artificially inflating balance sheets. After that, FASB meddled with the revenue recognition rules, in some cases not allowing companies to report revenue from cash payments received from a customer for a delivered product. Finally, and worst by far, FASB mandated punitive and nonsensical rules for so-called expensing of stock options. These accounting burdens, combined with the onerous yet ineffective mandates of the Sarbanes-Oxley Act, are starting to take a real toll on American businesses and markets. In 2007, only $8.5 billion or 7.7 percent of the total $109 billion in issuances of Initial Public Offerings were launched on U.S. stock exchanges, down from 60.8 percent a decade ago.
Under the legal doctrine of pervasiveness, media such as television and radio get much less protection from censorship than do print media. The Supreme Court should reject the pervasiveness doctrine as a dangerously broad and vague excuse for speech regulation. If the doctrine applies to any medium, it could arguably apply to all media. The pervasiveness doctrine thus threatens to curtail the First Amendment's protection of freedom of speech. The pervasiveness doctrine relies on a crabbed view of individual responsibility and property rights. We invite the broadcast media into our homes and alone bear the responsibility for controlling our children's access. The pervasiveness doctrine wrongly puts such choices in the hands of politicians and bureaucrats. Technological advances threaten to lead to wider applications of the pervasiveness doctrine. As the Internet expands into one-to-many voice or video communications, courts might decide to treat it as the legal equivalent of pervasive radio or TV broadcasts.
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