“What part of 'no' do our judges not understand?” Justice Hugo Black, for whom I clerked, took the view that because the drafters knew how to use qualifiers, such as “unreasonable searches and seizures” in the Fourth Amendment, we should assume when they said “no law” they meant “no law.”

When the FCC exacts substantial fines for relatively trivial “indecency” (which, unlike “obscenity,” is constitutionally protected speech), when the post office sets postal rates for newspapers on the basis of the quantity of advertising they contain, when the airport security rules forbid humor near the metal detector machines, when corporations are required to put revelations in a stock prospectus they would rather keep to themselves, when the FTC finds advertising “false and misleading,” when cigarette makers are required to tell potential customers that their product will kill them – each constitutes an “abridgment” of speech the judges say is consistent with the “no law” prohibition.

Sometimes the judges just say the speech in question isn't “speech.” Obscenity, defamation (until the Sullivan case), “fighting words,” speech that might lead to “imminent lawless action,” commercial speech (for the first half of the 20th Century), military secrets in time of war, and child pornography are simply defined as “non-speech” outside of the First Amendment's protection.

(To remove any possible ambiguity, I am not voicing objection to the ultimate result in these cases. I'm certainly not making the case for the social benefits of child pornography or, as in the next paragraph, visual depictions of animal cruelty. All I'm saying is that coming to these results as an interpretation of a constitutional provision that there shall be “no law” abridging free speech really does require three years in a law school.)

On October 6th the Supreme Court will consider adding another category of speech to this long list of exemptions: dog fight videos (under a 1999 federal law that forbids trafficking in “depictions of animal cruelty”). Adam Liptak, “A Free Speech Battle Arises From Videos of Fighting Dogs,” New York Times, September 19, 2009, p. A1.

I recently came upon a letter from a citizen to Rupert Murdoch, owner of the Fox broadcasting enterprise, in which she expresses her concern about the impact of Fox's programming on our nation, including the potential physical risk to our President from those

    who actually believe President Obama is the equivalent of Adolph Hitler . . . someone to be feared. They get these ideas from your media organizations.

    And it makes them dangerous and sick . . ..

    [Y]ou are hurting people in our country, and I would like you and your stations to start showing some restraint before one of these individuals thinks they are doing the right thing by actually committing an act of violence.

For a more detailed documentation of similar serious concerns and their connection to the media, see Larry Keller, “The Second Wave; Evidence Grows of Far-Right Militia Resurgence,” Intellegence Report, Southern Poverty Law Center, Issue 135, Fall 2009, p. 30.

A part of what I omitted (the entire letter is reproduced below) is, “Maybe you have the right to do whatever you want . . ..”

And indeed Murdoch does. Because hate speech – especially political hate speech – including that which reflects inaccurate sources of information, is protected speech under our courts' interpretations of the First Amendment. The Court may find that “animal cruelty” is outside the protection of the First Amendment. But depictions of, and incitement to, human cruelty are protected. Unless the “lawless action” from speech is “imminent” it's OK.

It was not always thus. In 1932 a court upheld the old Radio Commission (predecessor to the FCC in 1934) in its denial of a license renewal to Reverend Dr. Shuler of the Trinty Church in Los Angeles, licensee of station KGEF. Based on the record in the case it would seem that his speech was no more inaccurate, mean spirited and hateful than what passes for talk shows on Fox. The court, while upholding Shuler's First Amendment rights to hold and speak his views elsewhere, drew a distinction in terms of his right to use a station licensed to serve “the public interest” for such purposes. Judge Groner wrote:

    [If broadcasters are permitted to] use these facilities, reaching out, as they do, from one corner of the country to the other, to obstruct the administration of justice, offend the religious susceptibilities of thousands, inspire political distrust and civic discord . . . and be answerable for slander only at the instance of the one offended, then this great science [of radio broadcasting], instead of a boon, will become a scourge, and the nation a theater for the display of individual passions and the collision of personal interests. This [restriction on a broadcaster's speech, in this case resulting in the Commission's refusal to renew Shuler's license] is neither censorship nor previous restraint, nor is it a whittling away of the rights guaranteed by the First Amendment, or an impairment of their free exercise.

    Appellant may continue to indulge his strictures upon the characters of men in public office. He may just as freely as ever criticize religious practices of which he does not approve [which were Roman Catholicism].

    He may even indulge private malice or personal slander – subject, of course, to be required to answer for the abuse thereof – but he may not, as we think, demand, of right, the continued use of an instrumentality of commerce for such purposes, or any other, except in subordination to all reasonable rules and regulations Congress, acting through the Commission, may prescribe.

Trinity Methodist Church, South v. Federal Radio Commission, 62 F.2d 850, 852-53 (C.A.D.C. 1932).

Suffice it to say, Trinity is no longer the law either at the FCC or among the judges of the U.S. Court of Appeals, D.C. Circuit.

Rupert Murdoch, this Australian-born, 78-year-old media mogul, and 132nd richest person in the world, controls the News Corporation, which owns Fox. And today, unlike 1932, he can legally use his media to spew forth hatred-for-ratings of a sort that would have resulted in the loss of his licenses in the Commission's early days.

When I was an FCC commissioner, major media operations were owned and controlled by, and identified with, individual human beings. Bill Paley was the one to give the credit, or blame, for CBS' programming; as was David Sarnoff for NBC. Today, all too often, media corporations are run by hired hands (albeit very well compensated hired hands) and controlled by Wall Street.

But in the case of Fox we still have a person, Rupert Murdoch.

So in the absence of any prospect for action from Congress, the FCC, or the courts, Ms. Trish Nelson wrote directly to Rupert Murdoch:

    Rupert Murdoch
    Chairman and Chief Executive
    News Corporation
    1211 Avenue of Americas
    8th Floor
    New York NY 10036-8701

    Dear Mr. Murdoch:

    I am writing to you because I understand you own and control a large number of newspapers, television stations and other kinds of media outlets.

    I have been sickened and saddened by the choices your news organizations have made to show, over and over, on TV, horrible, hate inspired images against President Obama, and people carrying signs with messages of violence.

    You are taking advantage of a few sad, ignorant people, who don't know any better, because they believe Fox and people like Glenn Beck and Bill O'Reilly care about them and are telling them the truth. They don't understand that these people are just doing what they do because they are TV and radio personalities. The people in those crowds don't understand that they are being used, and that the ideas they are supporting are actually harmful to them. This is not right.

    Do you do this for the money? How much money do you and yours need? Are you trying to start full-blown civil unrest so that you can make even more money?

    Do you have any idea what it is like out here, having to live and work alongside people who are so horribly misinformed about how the world works? Who actually believe Obama was not born in this country, who actually believe in death panels, who actually believe President Obama is the equivalent of Adolph Hitler, and is someone to be feared? They get these ideas from your media organizations.

    And it makes them dangerous and sick on an individual level.

    Maybe you have the right to do whatever you want, but you are hurting people in our country, and I would like you and your stations to start showing some restraint before one of these individuals thinks they are doing the right thing by actually committing an act of violence.

    Trish Nelson
    Iowa City, Iowa

Murdoch's address is at the top of the letter. You might want to consider writing him, as I will – making reference to Ms. Nelson's letter, or not, as you choose. Given our Constitution and courts – and corporate control of Congress – Murdoch is these days about the only power to which you can appeal.