Sunstein: Force broadcasters to air 'diversity' ads

Cass Sunstein

JERUSALEM – The U.S. government should have the right to force broadcast media companies to air commercials that foster a "diversity" of views, argued President Obama's newly confirmed regulatory czar, Cass Sunstein.

"If it were necessary to bring about diversity and attention to public matters, a private right of access to the media might even be constitutionally compelled. The notion that access will be a product of the marketplace might well be constitutionally troublesome," wrote Sunstein in his 1993 book "The Partial Constitution."

In the book – obtained and reviewed by WND – Sunstein cites hypothetical examples of private groups or individuals attempting to buy advertising time in the broadcast media to promote a certain view only to have their ads rejected by a private media company.

"It is fully plausible that the refusal (of the media company), backed up by the law, violates the First Amendment, at least if other outlets are unavailable or far less effective," Sunstein posits in a radical interpretation of the Constitution.

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Sunstein wrote that the judicial system should interfere by creating a right to ensure private media companies do not have the final say in rejecting "diversity" commercials. But he lamented that due to judicial limitations, the courts likely won't act.

"If a right of access is to be denied, it should be done because of the courts' appropriate institutional modesty," he wrote.

He lamented: "The creation of such a right ... might also strain judicial competence in light of the courts' limited fact-finding and policymaking capacities."

Sunstein concluded by quoting from an author who argued the legislative branch should act instead of the courts in an analogous situation.

'New Deal Fairness Doctrine'

In his book, Sunstein outlines his positions regarding the regulation of broadcasting.

WND reported earlier this month that Sunstein used the book to draw up a "First Amendment New Deal" – a new "Fairness Doctrine" that would include the establishment of a panel of "nonpartisan experts" to ensure "diversity of view" on the airwaves.

Sunstein compared the need for the government to regulate broadcasting to the moral obligation of the U.S. to impose new rules that outlawed segregation.

In the book, Sunstein outwardly favors and promotes the "fairness doctrine," the abolished FCC policy that required holders of broadcast licenses to present controversial issues of public importance in a manner the government deemed was "equitable and balanced."

Sunstein introduces what he terms his "First Amendment New Deal" to regulate broadcasting in the U.S.

His proposal, which focuses largely on television, includes a government requirement that "purely commercial stations provide financial subsidies to public television or to commercial stations that agree to provide less profitable but high-quality programming."

Sunstein wrote it is "worthwhile to consider more dramatic approaches as well."

He proposes "compulsory public-affairs programming, right of reply, content review by nonpartisan experts or guidelines to encourage attention to public issues and diversity of view."

The Obama czar argues his regulation proposals for broadcasting are actually presented within the spirit of the Constitution.

"It seems quite possible that a law that contained regulatory remedies would promote rather than undermine the 'freedom of speech,'" he writes.

Sunstein compares the need for the government to regulate broadcasting to the moral obligation of the government stepping in to end segregation.

Writes Sunstein: "The idea that government should be neutral among all forms of speech seems right in the abstract, but as frequently applied it is no more plausible than the idea that it should be neutral between the associational interests of blacks and those of whites under conditions of segregation."

Sunstein contends the landmark case that brought about the fairness doctrine, Red Lion Broadcasting Co. v. Federal Communications Commission, "stresses not the autonomy of broadcasters (made possible only by current ownership rights), but instead the need to promote democratic self-government by ensuring that people are presented with a broad range of views about public issues."

He continues: "In a market system, this goal may be compromised. It is hardly clear that 'the freedom of speech' is promoted by a regime in which people are permitted to speak only if other people are willing to pay enough to allow them to be heard."

In his book, Sunstein slams the U.S. courts' unwillingness to "require something like a Fairness Doctrine" to be a result of "the judiciary's lack of democratic pedigree, lack of fact-finding powers and limited remedial authority."

He clarifies he is not arguing the government should be free to regulate broadcasting however it chooses.

"Regulation designed to eliminate a particular viewpoint would of course be out of bounds. All viewpoint discrimination would be banned," Sunstein writes.

But, he says, "at the very least, regulative 'fairness doctrines' would raise no real doubts" constitutionally.

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