Jun 10, 2008
Two weeks ago, the Blue America PAC submitted ads to numerous cable television stations, newspapers and radio stations criticizing Blue Dog Rep. Chris Carney (D-Pa) for his support of a bill to expand dramatically the President's warrantless eavesdropping powers and to immunize telecoms (such as Comcast) which broke the law in enabling the Bush administration to spy on their customers with no warrants. The ads also documented that several of the lawbreaking telecoms which would benefit most from the amnesty Carney advocates donated substantial sums to his campaign (with Comast being the largest such contributor to Carney).
The ads that were submitted were accepted by numerous newspapers and radio stations in Carney's district, as well as one television station operator (one much smaller than Comcast). None of the companies which own those media outlets were involved in the President's spying program nor were they criticized by the ad, and they have been running the ads for many days now.
By stark contrast, Comcast -- from the moment the ad was submitted -- was blatantly reluctant to broadcast the ad, insisting that numerous, extremely cumbersome "conditions" be met before they would consider accepting the ad. But even once those conditions were repeatedly met -- in the form of ample "substantiation" documenting the claims made in the ad -- Comcast continued to concoct additional barriers. When it was conveyed last week to Comcast's representative that it was becoming increasingly clear that they were refusing to broadcast the ad because it was critical of the role it played in the Bush administration's illegal spying program, and because the ad targeted a Congressman to whom Comcast representatives have contributed generously (and who is working hard to secure amnesty for Comcast), Comcast advised Blue America that it was retaining outside legal counsel to advise it on whether it should accept the ad.
Quite predictably, Comcast's legal counsel, David Silverman of Davis Wright Tremaine LLP in Washington DC, wrote an email late last week (here) claiming -- laughably -- that Comcast has decided to reject the ad because it "would face potential liability for any defamation contained in the spot." Silverman identified one line in the ad during which the logos of the lawbreaking telecoms (including Comcast) are displayed -- "[Carney] wants to pardon phone companies who broke the law and gave thousands to his campaign" -- and claimed that this statement "is factually incorrect and potentially defamatory against the entities shown."
The very suggestion that Comcast is rejecting this ad due to fear of defamation lawsuits -- rather than because the ad brings to light Comcast's own lawbreaking and criticizes one of its favored Congressman -- is just preposterous. As indicated, multiple newspapers, television and radio stations vetted the same ad and accepted it and have been broadcasting it. The only difference is that, unlike Comcast, they and their favored Congressman aren't criticized in the ad.
Moreover, the fact that these telcoms broke the law in allowing warrantless spying is an argument that lies at the heart of the debate over telecom amnesty and FISA. It is a claim that -- as the mountains of substantiation submitted to Comcast demonstrates -- is made continuously in all sorts of venues and by multiple political and media figures, without any of them ever being sued for "defamation."
Just as a few examples, when Chris Dodd announced that he would do everything in his power to prevent amnesty for telecoms such as Comcast, he said that the telecoms "enabled the President's assault on the Constitution by illegally providing personal information on their customers without judicial authorization." In November, 2007, Sen. Russ Feingold wrote in The New York Times that "if we want companies and the government to follow the law in the future, retroactive immunity sets a terrible precedent." The New York Times Editorial Board argued against immunity "for telecommunications companies that cooperated with the illegal spying" and argued that "the real aim is to make sure the full story of the illegal wiretapping never comes out in court." I wonder why Comcast, AT&T and friends didn't sue Chris Dodd, Russ Feingold and The New York Times for defamation.
Beyond that, the mere suggestion that telecoms might bring a lawsuit claiming defamation due to an ad that states that they broke the law is self-evidently absurd. If telecoms were to bring such a lawsuit, then "truth" would be raised as a defense, and these telecoms would then be subjected to a discovery process which would reveal exactly what they did when participating in the Bush spying program. It is precisely the fear of having those activities revealed that has made them so desperate to have Congress immunize them from the pending lawsuits in the first place. As Comcast's counsel, Silverman obviously knows that the last thing that would ever happen is that telecoms would commence a defamation claim against those stating -- as I have done repeatedly here -- that they broke the law when participating in these illegal spying programs (Comcast had already been advised that the logo for "NCTA" would be removed from the ad).
There are countless other legal reasons why this supposed fear is patently fictitious, including the fact that, as a matter of public interest, there is broad flexibility under the law to make statements about the telecom amnesty debate. Manifestly, Comcast is refusing to broadcast these ads for one simple reason: because they want to suppress any viewpoints critical of their behavior in this matter. For that reason, Comast has refused to answer the following inquiry I sent to Comcast's representative who originally created all the barriers, Kathryn Koles (Kathryn_Koles@cable.comcast.com):
Ms. Koles - I received the letter from your counsel rejecting Blue America's ad. I am working on a piece about Comcast's behavior for Salon. Please let me know whether Comcast has ever accepted any ads for broadcast which are critical of Comcast specifically and the telecom or cable industries generally and, if so, which ones.
I'm not holding my breath waiting for a reply to that.
Comcast has no legal obligation, at least that I'm aware of, to broadcast particular ads. But the danger of allowing corporations like Comcast to control the content of vital political debates by refusing to broadcast ads that are critical of them or their Congressmen is manifest, and that's particularly true where -- as is the case for Rep. Carney's district -- one company controls the bulk of the important television outlets. In an age where corporate consolidation of our most influential media outlets is increasing rapidly, companies such as Comcast can suppress the expression of political views it dislikes -- or conceal their own illegal behavior -- by censoring any political viewpoints that are contrary to their interests or to the interests of the political figures who receive substantial contributions from them and then serve them. Obviously, that is precisely what Comcast is doing here.
Just consider the ramifications of Comcast's behavior when engaged in more generally. The debate over whether to immunize telecoms is one of the most vigorously contested in Congress over the last several years. At the heart of that debate lies the illegal behavior of our nation's largest telecoms in allowing spying on their own customers in violation of the law (and reaping substantial profits from their burgeoning relationship with the Government). Yet these same telecoms can then use their control over vital media outlets to prevent citizens from learning about their behavior or having the Congressman who seek to protect them criticized in any way. The threats posed to free debate and an informed citizenry by such venal conduct is substantial and transparent.
Additionally, Chris Carney's constituents are being prevented from learning about what their Congressman has been doing, and the reasons why he is doing it, as a result of the censoring behavior of a cable operator which both contributes to Carney's campaign and receives substantial favors from him. In response to criticisms, media representatives and their defenders typically claim that they are motivated by commercial interests, not ideological or political considerations, in deciding what to broadcast.
Yet here is Comcast refusing a check for thousands and thousands of dollars for an ad that many other media outlets have run, all because they disapprove of the political content and want to suppress the information and ideas expressed in it, because it reflects poorly on them and the Congressman who is engaging in extraordinary efforts to serve their interests. Whatever one might think about the legal right of corporations to control our public debates by exercising power of this sort, it is impossible to deny how corrupt and damaging it is to have corporations be able to use their control over media outlets to limit and suppress the terms of our most important political debates in this manner.
UPDATE: Over at FAIR, long-time media critic Norman Solomon discusses Comcast's recent firing of a news anchor who criticized Bill O'Reilly and notes that "Comast, shall we say, has earned a reputation as a voracious media conglomerate with scant interest in the public interest" (h/t macgupta).On a related note, we have confirmation that representatives of Rep. Carney have been contacting media outlets inquiring about the ads placed by Blue America, asking for information about the quantity of the ads and any future ad plans. Comcast explicitly denied to me that they had been contacted in any way by Carney or representatives on his behalf. I'll post more details on that when I can.
Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book "How Would a Patriot Act?," a critique of the Bush administration's use of executive power, released in May 2006. His second book, "A Tragic Legacy", examines the Bush legacy.
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