[Kzyxtalk] from the AVA's "Mendocino County Today", May 22, 2014

[sako4 at comcast.net]

It would seem obvious KZYX is now trying to develop a policy designed to kick dissidents off the air...a list of forbidden off-air conduct or behaviours that would result in the cancellation of shows and the revocation of broadcasting privileges for the "guilty" broadcaster. 


What conduct, I wonder? 


Conviction of a felony crime? Imprisonment? I can completely understand being kicked off the air for serious criminal behavior. But KZYX isn't talking about that. 


So, what other conduct gets a broadcaster in trouble, I wonder? 


Criticism of station management? Is that enough to get a broadcaster kicked off the air? 


How about other criticism? Criticism of the Board? Criticism of station policy? Criticism of another broadcaster? 


Hmm. 


What other conduct? Where does the slippery slope end? 


How about getting kicked off the air for holding controversial opinions? Holding certain political beliefs? Belonging to certain religions? Belonging to certain organizations deemed subversive by KZYX station management? Perhaps even making certain lifestyle choices unacceptable to station management? 


Sounds like McCarthyism all over again. 


Any policy in this area would almost almost certainly be actionable in court. A policy mandating or regulating off-air conduct would immediately have KZYX defending itself against claims of reprisals, double standards, and discrimination. 


If anyone thinks KZYX's legal bills for the renewal of the FCC licenses are too high now, I shudder to think what defending against such claims in court would cost in the future. Station management would bankrupt the station by trying to mandate or regulate off-air behavior. Almost certainly, none of the above claims would be dismissed by a judge. The opportunity for making case law in a constitutional challenge at publicly funded radio station, like KZYX, would far too compelling. A judge's career is determined by published case law. 


Also, if anyone thinks the objections to the renewal of KZYX's two FCC licenses drew a spark of national attention, then creating a policy for required off-air conduct would almost certainly create a firestorm of controversy. I don't think many other public media stations would support an attempt by KZYX to mandate or regulate off-air behavior. 


Talk about unpopular ! 


Does KZYX really seek further negative publicity? 


I can also see Congress getting involved, too. In the1990s, Congress got involved at the NEA over what constituted freedom of speech issues. Congress then went way beyond getting involved. In 1995-1997, Congress almost killed the NEA, along with the NEH and the CPB. 


Incidentally, there is some relevant case law from that time. The case filed by the "NEA Four" in 1993, with lead plaintiff Karen Finley, centered on subsection (d)(1) of 20 U.S.C. § 954 which provides that the NEA Chairperson shall ensure that only excellence and merit are the criteria by which applications are judged. The court ruled in 524 U.S. 569 (1998), that Section 954(d)(1) is facially valid, as it neither inherently interferes with First Amendment rights nor violates constitutional vagueness principles. 


In other words, it can be inferred that only criteria by which publicly-funded broadcasters would be judged would be the same criteria that publicly-funded artists are judged...excellence and merit. 


That me state that again. If public dollars are involved, then only excellence and merit matter. 


Again, the courts have already decided this issue in the area of publicly funded art. No doubt the courts would jump at the chance for a test case in the area of publicly funded media. 


The NEA, NEH, and CPB all have interests that are aligned. For the same reason the NEA pushed back in the 1990s, I also don't think the CPB would sit still for a code of required off-air conduct. I don't think they would sit still for one minute.. 


Then, there are the conservative groups who would be ready to pounce on us: Heritage Foundation, the American Enterprise Institute, the Project for a New American Century, and others. They're always ready to pounce on public television and public radio at almost any opportunity. A code for required off-air conduct would be like waving a red flag at a bull. They couldn't resist it. 


But there's more. Even liberal groups would be concerned about the free speech issues implied in a code for required off-air conduct at a public radio station like KZYX. 


I was once married to a national reporter who was also a Carter Center Fellow. Yesterday, after following this thread about off-air conduct on kzyxprogrammers at lists.mcn.org , I spoke with someone affiliated with the Carter Center. Together, we made a list of all the groups who would be aghast at a code of required off-air conduct. They include not just many liberal groups, but also libertarian groups, like the Annenberg Public Policy Center. I then asked another person who has been a guest on my show, and who is a prominent and highly-respected media person, to put a call into Annenberg to get a read on this dubious business of a code for required off-air conduct. I'll ask that person to poll a few other places, too. 


KZYX may be small, but our issues are big. 
----- Original Message -----
From: "Tim Bray" <tbray at wildblue.net> 
To: kzyxtalk at lists.mcn.org 
Sent: Thursday, May 22, 2014 10:04:59 AM 
Subject: Re: [Kzyxtalk] from the AVA's "Mendocino County Today", May 22, 2014 


The KZYX programmer's listserve is buzzing, and it started off with a question about whether or not off-air actions should be considered when evaluating a programmer. Some thoughtful commentary about the programmer's position ensued. 

But the real buzz is the pushback from programmers who are sick of Sacowicz and his bullshit. He is getting roundly castigated by several programmers, and some others are expressing genuine concern for his mental state. 

Sacowicz is, as usual, responding with threats of legal action and heaps of self-aggrandizing rhetoric. 

The "criticizing station management" mantra is BS and a red herring. Programmers question and criticize station management all the time, with no repercussions. I can think of many who do it regularly and are treated with respect; I have done it myself on several occasions, and undoubtedly will again. 

What Sacowicz is doing is beyond criticism. Protesting the relicensing has demonstrably harmed the station and continues to do so. It seems a clear violation of his duty as a Board member and he should be recalled - but that would require wasting even more time and money. 




On 5/22/2014 1:04 AM, sako4 at comcast.net wrote: 





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THE KZYX LISTSERVE is buzzing with a discussion about tightening up the station’s Programmer Handbook as to how a programmer might lose his air time to include how he might lose it off-air. Off-air? Off-air. Which seems to mean criticizing station management in forums other than “Free Speech Radio, Mendocino County” itself where, of course, discussion of the station is not allowed on-air. But off-air? That might be a little much even for Philo’s intrepid “speakers of truth to power.” 

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