[Kzyxtalk] To Brother Sakowicz

Sat May 31 08:31:27 PDT 2014

----- Original Message -----
From: "King Collins" <king at greenmac.com> 
To: kzyxtalk at lists.mcn.org 
Sent: Friday, May 30, 2014 9:28:55 PM 
Subject: Re: [Kzyxtalk] To Brother Sakowicz 

OK. Thanks John. By the way have you posted the as yet to be published op-ed about the board loyalty document? 

On May 31, 2014, at 8:32 AM, sako4 at comcast.net wrote: 

See below, King. 

________________________________________________________________________________________________________________________________________________ 

Subject: OP-ED 

MCCARTHYISM AT PUBLIC RADIO 

At its March, 2014, meeting the Board of Directors of Mendocino County Public Radio (MCPB), colloquially known by the call letters, KZYX, moved to outlaw dissent among the Board. The Board of Directors, led by Board Chair Eliane Herring, and advised by the station's embattled General Manager and Executive Director, John Coate, was asked to consider signing a loyalty pledge. 

A loyalty pledge! 

Didn't loyalty pledges go out of style, along with blacklisting, fear mongering, and red-baiting, in late-1950s, with the fall of Senator Joe McCarthy? 

Maybe not. 

Specifically, the idea of a "MCPB Board List of Responsibilities" was introduced by Chair Herring at the March meeting. I was the only member among the Board's nine members who opposed it. I had serious concerns about the so-called list of responsibilities. I believed the Board needed a legal opinion on its legality and enforceability. 

The following items from list gave me the greatest concern: 5.) the "confidentiality clause"; 7.) the clause to "do nothing to violate the trust of those that elected or appointed a director to the board," and 10.) the clause to "do nothing undermine the authority of the General Manager." 

I was aghast. I believed the confidentiality clause violated the principle of open meetings. It defeated transparency and accountability at the station. Meanwhile, the trust clause was vague. What exactly constitutes a violation of trust? Finally, the clause promising not to undermine the authority of the General Manager was tantamount to giving the General Manager dictatorial control of the station. 

It wasn't going to happen on my watch. Nope. And I didn't care if my opposition made me the most hated guy at the station. I was prepared to assume the role of Alger Hiss in this new reenactment of McCarthyism. 

I made such a fuss that Chair Eliane Herring tabled the item. 

But the worse was yet to come. 

On Wednesday , May 21, GM John Coate, wrote the following to the station's volunteer broadcasters. The station has approximately 100 volunteer broadcasters. 

[excerpt] 

As to the point, I have received a lot of thoughtful replies to the question and more are coming in. I will compile them and come back with a more refined set of questions based on those replies. Why am I doing this? Because while the Programmer Handbook addresses a number of ways a programmer can lose the privilege due to on-air behavior, off-air is left much more vague. I think it should be made more specific. There is some precedent already though. Beth Bosk and Sister Yasmine were both put off the air because of their off-air behavior. But it was never really codified. 

After reading GM Coate's screed, I'm left wondering: What off-air behavior? What off-air behavior will be on the list of banned behaviors at KZYX? What behavior will result in getting a shows cancelled and broadcaster kicked off the air? 

Conviction of a felony crime? 

Imprisonment? 

I can completely understand being kicked off the air for felony criminal behavior, but I don't think GM Coate is talking about criminal behavior. 

So, what is GM Coate talking about? What conduct will get a broadcaster in trouble at KZYX, 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? Or how about the very act of my writing this op-ed piece? Will that get me kicked off the air? 

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 its FCC licenses are too high -- those legal bills are now pushing $10,000 -- I shudder to think what defending against such claims in court would cost in the future. John Coate would bankrupt the station by trying to mandate or regulate off-air behavior. Think about it. 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. When the day is done, a judge's career is determined by how published case law came out of cases heard in his or her court. 

Also, there's all the negative publicity that would come from a publicly-funded radio station trying to mandate and regulate the off-air behaviors of its volunteer broadcasters. The five objections to the renewal of Mendocino County Public Broadcasting's two FCC licenses, KZYX and KZYZ, drew a spark of national attention -- I filed one of those objections -- but creating a policy for required off-air conduct would almost certainly create a firestorm of controversy. And I don't think any other public media station in the country would support an attempt by KZYX to mandate or regulate off-air behavior. They would be aghast. 

Talk about making KZYX a pariah among its peers ! Does KZYX really seek further negative publicity? Weren't the five objections to the renewal of their FCC licenses, including my own objection, enough of an embarrassment? Weren't the 107 members of "KZYX Members for Change" on Facebook enough of an embarrassment ? 

But the nightmare might not stop at public humiliation, if the station tries to mandate or regulated off-air behavior among its volunteer broadcasters. I can also see the U.S. Congress getting involved. 

I explain why. 

Any attempt by a publicly-funded radio station, like KZYX, to mandate or regulate off-air conduct would be an invitation for Congress to jump into the fray along with the courts. In the1990s, Congress got involved at the National Endowment for the Arts ( NEA) over what constituted freedom of speech and public decency. Actually, Congress went beyond getting simply "involved". Congress tried to kill the NEA. In 1995-1997, Congress tried to kill the NEA, along with the National Endowment for the Humanities (NEH) and the Corporation for Public Broadcasting (CPB) -- all funded by public dollars. Congress almost succeeded. There's no law that says Congress must fund the arts or the media. It's a budget thing. 

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. 

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

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 that the NEA fought back against mandated public decency standards in the 1990s, I also don't think the CPB would sit still for a code of required off-air conduct for volunteer broadcasters. I don't think they would sit still for one minute. The CPB's very survival would be imperiled. They would not welcome negative publicity created by one of their own, KZYX. Remember, KZYX receives some money from the CPB. 

Remember, too, Congress can take away the CPB's funding for any reason, or for no reason at all. 

Then, there are the conservative groups who would be ready to pounce on KZYX: The Heritage Foundation, The American Enterprise Institute, The Project for a New American Century, and others. These right-wing groups are always ready to pounce on public television and public radio at almost any opportunity -- all in the name of smaller government and smaller budgets. A code for required off-air conduct at public radio would be a constitutional issue for these groups. It would be like waving a red flag at a bull. 

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. After reading GM John Coate's post to KZYX's volunteer broadcasters about off-air conduct, 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 some libertarian groups, like the Annenberg Public Policy Center. I then asked another person who has been a guest on my show, and who has impeccable national media credentials, to put a call into Annenberg. Why? 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. But I'm not expecting too much support for Coate's proposal. There's no place for McCarthyism in public radio. 

KZYX may be small, but our issues are big. 

Incidentally, Beth Bosk and Sister Yasmin Solomon were kicked off the air years ago at KZYX for no good reason. They are both outspoken, intelligent, independent women. They are strong women. That's the only thing they were guilty of. Beth Bosk is the editor and founder of the highly respected The New Settler Interviews . Sister Yasmin is a popular disc jockey. The KZYX Board of Directors should direct GM John Coate to give them their shows back -- with an apology. 

John Sakowicz 
Ukiah 

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