Wampum

Precedent

A number of years ago, I was involved in a law suit that presented a legal question of first impression in Georgia. The issue was destined to be decided by the Supreme Court of Georgia. The stakes in our case were quite high and we were looking forward to the opportunity to convince the Court of the correctness of our position.

As our case wound its way towards the high court, we were dismayed to learn that another case, with much smaller stakes, presenting a very similar, though not quite identical, issue was also on track to be decided by the Supreme Court. Indeed, the other case was postured to be decided before ours.

The lawyer advocating the position we favored was not very experienced in that area of the law, and, when we read his arguments, it became clear that he had not made the strongest possible case for our position. That is perhaps understandable as the stakes in his case were a small fraction of the stakes in ours.

For several months, we lived in fear that the Supreme Court would decide the issue against us before we had an opportunity to present our arguments. The decision in the other case would become precedent applicable in our case that would be very difficult to overcome. Luckily, the other case settled at the last moment, and, a year later, we were able to obtain the Supreme Court decision we sought.

I can not help but recall that experience when I consider the conservative position with regard to media bias and Sinclair Broadcasting.

As I understand the conservative position on media bias, they believe that the large, mainstream media outlets are filled with liberal elitists who will stop at nothing to promote the liberal or Democratic agenda. Sure, the conservatives may have a few media outlets (like a.m. radio, Fox News and the Wall Street Journal editorial page), but the media with the largest audiences (network TV, the New York Times, Time Magazine etc.), conservatives believe, have a transparent liberal bias and will do anything within their power to favor liberals and to supress the conservative view.

If that is an accurate assement of the conservative view, it is difficult to see why they are not doing everything in their power to prevent Sinclair from airing the partisan, anti-Kerry documentary. If theconservative media is permitted to air highly partisan material by engaging in the fiction of calling it news, why can the liberal media not do the same from the other perspective?

Sinclair, after all, is pretty small potatos as a media source. It has 62 television stations, mostly with second tier network affiliations (only 15 total on ABC, NBC, and CBS, but 20 on Fox and 19 on WB) in mostly second tier markets (Asheville, Oklahoma City, and Des Moines, for instance but no presence in NY or L.A.). It reaches 24% of all U.S. households.

CBS, on the other hand, is only one part of Viacom which, in turn is only one part of what conservatives believe is the liberal mainstream media. Nonetheless CBS alone dwarfs Sinclair. CBS has:

over 200 owned and affiliated stations reaching virtually every television home in the United States.

To analogize to the print media, if Sinclair buys ink by the bucket, CBS buys it by the barrel.

Once the precedent is set by Sinclair, what is to prevent the much larger, more powerful members of the allegedly liberal mainstream media from declaring Farenheit 9/11 to be news, inviting George W. Bush to debate Michael Moore afterwards, and broadcasting it into every home on election eve? If the Sinclair example becomes precedent, the answer is "nothing."

Why then are conservatives apparently not concerned about the precedent that Sinclair might set?

There are a number of possible answers.

First, for all of their caterwaulling, perhaps conservatives do not really believe that the main stream media has a liberal bias. That, apparently, is the position of William Kristol of the Weekly Standard. Media critic Eric Alterman references a 1995 story in the New Yorker in which Kristol is quoted as follows:

I admit it. The liberal media were never that powerful, and the whole thing was often used as an excuse by conservatives for conservative failures.

A second possibility is that conservatives do believe in the narrative of the liberal media, recognize the danger the precedent of Sinclair will set, and have decided that the current election is sufficiently important to risk long term damage to their electoral chances.

A third possibility, and by far the most likely in my view, is that conservatives believe that there is a liberal bias in the mainstream media but recognize the qualitative difference in the type of bias portrayed by the networks and the type of bias in play at Sinclair. The mainstream media cares about its journalistic reputation and simply would not stoop to the level of Sinclair. In that case, there is no danger that the liberal media will make conservatives pay a price for the Sinclair precdedent. Conservative media groups are free to engage in any form of propoganda comfortable in the knowledge that the so called liberal media will not resond in kind.

If that is right, then the left needs to develop its own media outlets that are willing to be as openly partisan as the conservative media. That takes a lot of work and a lot of money, but given the right's failure to recognize any voluntary limits, what is the alternative?

Posted by Dwight Meredith at October 12, 2004 04:18 PM | TrackBack