Which government owns my public library? Certainly not the feds. Chances are its the same county to which I pay my property taxes; though I suppose it’s possible it’s municipal (i.e. to where I pay most of my parking tickets) or even state-funded.
That bizarre multiplicity of levels of government for which the US is especially notable is just one good reason why it’s imprecise to hold that the “government” owns the airwaves. But, anyway, that’s a technicality introduced by an admittedly imperfect analogy to public libraries; whereas I think the real distinction I was after is precisely to do with the fact that there is no deed for the airwaves.
I’m almost positive that if you check the language of the public interest doctrine you’ll find that public ownership of the airwaves is explicitly what’s stated. We can quibble about whether that matters or not: but to me it does. The congress of that time was trying to show that this new technology that used the air belonged to the public. And while it’s true that the US government is supposed to be for the the people and by the people that’s still one semantic step removed from what the doctrine stipulates: which is that the people own the airwaves.
Upon re-reading led me rephrase. It was not so much that the new technology was seen to the belong to the public; but that the end effect of broadcasting itself–because of its dependence on the air–was perforce public and must be made to serve public interests and needs. I think it says an awful lot about this otherwise fairly conservative period that it was that conscious of American civic life, and that suspicious of letting commercial interests trench upon the latter.
First off, your Museum of TV quote - a mantra without meaning. Try to claim your portion of the airwaves as one of the “people” - you’ll end up fined or in jail.
To make this tangible, let analogize to a car. You are informed that you “own” the car, but you can’t drive it, hold the keys to it, or even hold the keys to the garage it is in. The title and registration of the car is not in your name. The only person who drives it or allows others to drive it, who holds the only set of keys to the car and the garage, is the “guardian,” Mr. Gov Mint.
One day, you show up at the garage, and discover the car is gone. Mr. Mint has given it away to someone else, to use for the next 10 years.
Do you actually own the car?
“Ownership” and “property” are both pretty fuzzy concepts in the law, even at this late date. The best definition of property we have to go on is that property is a bundle of rights associated with a thing, place or idea.
The people have none of the rights associated with the airwaves. Ergo, despite the opinion of the Museum of Television, the people do not own the airwaves.
Well, actually, both are subsidized by the government. The difference between the two is not whether there is a government subsidy, but instead whether the government chose to give said subsidy to a particular individual, or whether the government made the subsidy available to all.
No, I agree. Again, that is the difference between the government acting as a participant in the market and the government exercising its police powers.
But that hypothetical is inapt. A more appropriate hypothetical is one in which two people are standing on the street shouting their opinions. The government wishes to encourage the exchange of opinions, and therefore gives out bullhorns to people on the street. The problem here is that the government has only has one bullhorn left.
Who should get the bullhorn?
The one with the most money to pay for the bullhorn?
The one who is expressing opinions more in tune with governmental policy?
The one who offers to share the bullhorn?
I don’t think this thread is about whether the government can impose the Fairness Doctrine - the fact that the Fairness Doctrine used to be the law demonstrates that it can. The question is whether it should.
And there lies the Catch-22. The government cannot get away from the fact that it decides who gets to “speak” in this instance, because the government determines who gets licenses, and without a license you can’t broadcast.
If the government charges fair market price for a license, it eliminates voices based upon wealth - not a good thing.
If the government charges under the fair market, it is subsidizing a particular POV, that of the person the government chooses to grant the license to.
Of course, we now have the worst of both worlds. Wealthy entities have the licenses, and the government is still subsidizing their speech.
Mandelstam, the multiplicity of governments in the U.S. is irrelevant to telecommunications - Congress “occupies the field.” Regardless of who owns the airwaves - the people or the government - we can be damn sure that your municipal, county, or state government does not.
I agree with your first paragraph here, and am sympathetic to your car analogy. I believe this principle is a hot issue in recent years, as conservative legal scholars have tried to promote the notion that excessively restrictive government regulation amounts to a government “taking”, which would be unconstitutional. I don’t think it has gotten too far legally however.
Still, there is an important distinction between something that the government owns because it has purchased and something that the government “owns” by virtue of the fact that its regulatory role or its managerial role as steward on behalf of public interests has given it what we might consider a de-facto ownership. The matter of whether the government truly owns public property might not be terribly meaningful from the standpoint of legal ownership, but it is meaningful with regards to whether the government is being benevolent in allowing the public to use it or merely allowing the public their rights to use it.
Well I would disagree with you. Public space exists independently of the government, and the rights of the people with regards to them do not derive from the fact that the government has decided to let the people use it - to the contrary, the rights of the government are derive solely from its status as agent of the people. By contrast, if the government has money and builds or buys something, that belongs to the government in the same manner as any private object belongs to its owner. In such a case, the people’s rights to it (such as they are) derive from their ownership stake in the government.
I disagree. The issue you’ve brought up is specifically whether the fact that the government is giving out “bullhorns” is a reason for them to impose content based restrictions that they would not otherwise impose. I dispute this notion, because I don’t think this is analogous to giving out bullhorns, as above. If you want to debate the fairness issue without the government sponsorship issue, all this would be irrelevant.
I agree with you. But I think that whether it should is in part dependent on philosophical issues such as those you’ve brought up about government funding, and to the extent that such arguments are made, the implications of such funding are significant.
Well, Sua, you don’t have to accept the importance of the distinction but it remains. That is, unless my memory has served me incorrectly, public ownership of the airwaves is the explicit language of the US Congress: not the Museum of TV, as you quaintly put it, but the doctrine that, to this day, even after many deregulatory moves, stands as the reigning doctrine on broadcasting; not to to mention its importance as an historical moment.
Naturally public ownership of anything doesn’t empower any individual member of the public to exercise the ownership that is imputed to all. To believe otherwise is to misunderstand the meaning of “public.”
Does the “public” boil down to an abstraction? Of course it does, but so do many other important terms in our civic discourse; and this particular one, which you’ll find in some of the most important documents associated with this country, continues to have significant interpretive value. Imagine if a certain other document began “We the government of the United States of America” instead of invoking “the people” at large.
Hence, in my view when the US Congress invokes such a term, on the dawn of a new era in communications, to establish ownership of the medium that makes that new phenomenon possible, in the name of the public on behalf of that public’s interest, it’s worth noting that. “Government” neither has the same precise meaning, nor the same rhetorical power. And I think if you wanted to get specific and allege that Congress owned the airwaves, or that the FCC did, you’d start to get a lot of flak really fast.
Call me a sucker for civic discourse if you wish; I’ll happily plead guilty to that charge.
[QUOTE]
*Originally posted by IzzyR *
[I stated that the government subsidizes users of roads]
Well I would disagree with you. Public space exists independently of the government, and the rights of the people with regards to them do not derive from the fact that the government has decided to let the people use it - to the contrary, the rights of the government are derive solely from its status as agent of the people. By contrast, if the government has money and builds or buys something, that belongs to the government in the same manner as any private object belongs to its owner. In such a case, the people’s rights to it (such as they are) derive from their ownership stake in the government.
On several levels I disagree.
Of course the government subsidizes users of roads. Who paid for the macadam? The government.
Which gets to your contrast “By contrast, if the government has money and builds or buys something, that belongs to the government in the same manner as any private object belongs to its owner.” The government did build something – the road, the sewers that drain the road, the curbs, the meridian, etc.
As for the “public space” argument, let’s look at a famous example - the WTC. The WTC complex eliminated several city streets for several blocks, and the old roadbeds formed part of the “footprint” of several of the buildings. The WTC is owned by the Port Authority. If the government didn’t own the streets, from where did it derive the authority to give ownership of those streets to another entity? The example is even more clear in instances where the land on which streets sit is sold to private entities.
The government can sell public space and/or convert public space into privately owned space if it so desires.
The government can charge individuals for use of public space, such as turnpikes or parks.
To a great extent, our argument is over a distinction without a difference. You say that public spaces are the property of the people. I say that in our system the government is deemed to be the people.
Sua, I almost hesitate to stay involved in this philosophical hijack, but I think in your last statement you’re thinking more of the discussion between me and yourself than the distinction between Izzy and yourself.
Perhaps this will help. Government in the US is held as a matter of philosophical principle to be for the people and by the people. In theory the idea is to encourage as much citizen participation and citizen vigilance as much as possible. In practice we live in a very complex world and “government” often boils to specific institutional agents and agencies that exercise power on behalf of citizens which citizens themselves don’t have and aren’t especially well-informed on.
Personally I think it makes sense to say that “taxpayers” subsidize roads: not b/c government isn’t the mechanism through which tax money turns into road subsidies but because, in this case, I think it’s worth emphasizing who ultimately picks up the tab. It reminds citizens that they are citizens in ways that I think they should think about more often. OTOH, there are powers arrogated by government, rightly and wrongly, that average citizens don’t have. Like the power to collect information about ordinary citizens. It would be downright misleading to talk about, say, trade negotations or the CIA’s activities in terms of the will of US taxpayers and citizens when these are clearly areas where the government consciously works to keep citizen involvement as low as possible. In such cases when one speaks of the government, one means to stress its institutional detachment from the citizenry that allegedly authorizes its actions.
Not to beat a dead horse: but that’s basically why the distinction between public ownership and government ownership of the airwaves is so important to me. Back in the 20s, Congress recognized that broadcasting was going to make a huge impact on public lives and it wanted to say that the public counted in this one–that they were the true owners of this new communications phenemonon. Rhetorically speaking, that is as far apart from the bureaucratic arrogation of powers as you can get–even though many see the decision to go almost completely commercial as having utterly neutralized the professed intent of the public interest doctrine and the accompanying regulatory moves. And, of course, in practice, the problem in broadcasting hasn’t been government control, but industry control and industry manipulation of the relegant government organs, so that most Americans probably think that Time Warner, Clear Channel, and Viacom own the airwaves: not either the government or the public.
But not who makes the decision. The government collects the tax money, then decides what to do with it.
I mean, would you say you or your employer paid for your vacation last year?
Obviously, then, the government owns everything as we are granted the privilege of owning private property provided we don’t commit crimes and we pay our taxes. Because of eminent domain this is quite clear.
As the government regulates the manner in which we live or die (murder is illegal, assisted suicide is illegal to the one assisting, and you can’t plant your corpse any ol’ place), it also owns our bodies; therefore, the government owns everyone and everything and we are actually living in extreme communism, not the capitalistic republic as popularly mentioned by Big Brother in the most impressive application of propoganda not yet discovered fnord.
Or, contrariwise, the government regulates the airwaves to make their allocation efficient and free of conflict, and otherwise allows people to own them provided they meet the requirements.
But license holders don’t own the frequency allocated to them. They have a contract with the federal government to use that frequency; a contract that can be terminated.
These seem to be the same point. I would say that the government has given added improvements to the public space, but not created it. In a larger, public policy sense, the government is certainly subsidizing roads. But the very space itself is what would exist independently of the government. So that if I am standing in the street, you might say that I am benefiting from the government in that the ground is smoother etc. But you cannot say that the very fact that the government tolerates my presence in this “government property” amounts to a subsidy from the government to me. This is not so - my connection with this street owes itself to the fact that it is inherently a public place, not to any present from the government to me.
The government can change the status of an area from public place to governmental. Frankly, the government can take private property using the Eminent Domain doctrine - in the case of public property which is already controlled by the government this is doctrine is not necessary.
I agree with all of this. To use a corporate example, the people are like the stockholders and the government like the management. But I think the distinction has a difference to the issue here.
If something exists independently of the government, and the people have rights to it without being granted them by the government, then the government does not, in stepping in to manage or “own” the entity become a benefactor of the people of those rights that have merely not been removed. If in the complete absence of a government people would still have this public space (albeit not as nicely paved), then the government is primarily stepping to impose restrictions - to the extent that restrictions are not imposed, the people are left to enjoy their natural rights. For the government to say that we are subsidizing you by virtue of the mere fact that we allow you to use “our” property is wrong. So it is with radio frequencies.
By contrast, with something that only exists by virtue of the fact that the government has created it - say a building, or a cash grant - the government is indeed giving you something that you would not have had independently of the government.
I think this distinction is relevant to the specific argument you were making about government-sponsored speech. In the first case, the government has not really given you anything, and to attach conditions - on that basis - on what is really your natural right is wrong (though not illegal). In the second case, the government has given you something and is merely attaching conditions to this gift. This would be a distinction between government sponsored doctors mentioning abortions and radio frequency licensees mandated to provide fairness.
After having typed all this out, it occurs to me that perhaps the government is giving the licensees something after all, not so much in that they have the right to broadcast, but in the fact that the government bans anyone else from using their frequency - without which their natural rights would not be too useful. Not sure about this.
