LP Candidates Shouldn't Sue for Media Access

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LP Candidates Shouldn't Sue for Media Access

by Ari Armstrong, February 25, 2003

In the 2002 elections, the Libertarian U.S. Senate candidate sued several Colorado media outlets in an attempt to be included in televised debates with his Republican and Democratic opponents. In a protracted e-mail debate, I argued that, while actions like protests are acceptable, such lawsuits are not.

At issue is whether libertarians believe media businesses have full property rights. If they do, then they have every right to report whatever news they feel is relevant -- and exclude whatever news they want. The right to free speech entails the right not to speak.

Numerous other LP candidates have filed suits for various reasons, in some cases justifiably. Another important issue is whether libertarians should take advantage of statist, inherently unjust laws for political gain. I don't think they should.

While the 2002 elections are old news, the matter of candidates wanting to sue for media access is likely to arise every election cycle. I hope the LP will resolve to require candidates to follow libertarian principles on the matter.

In a press release, the national LP described two approaches to seeking media coverage:

Massachusetts LP Senatorial candidate Michael Cloud and Iowa LP gubernatorial candidate Clyde Cleveland: Jockeying for coverage. Two Libertarian candidates are mounting last-ditch efforts to increase their media coverage -- one by filing a complaint against a newspaper for making an "illegal campaign contribution," and one by launching a hunger strike. In Iowa, LP gubernatorial candidate Clyde Cleveland lodged a complaint against the Cedar Rapids Gazette for locking him out of a debate, while in Massachusetts, U.S. Senate candidate Michael Cloud is refusing to eat to protest journalists who have "blacked out" his campaign...

In Iowa, Cleveland filed a complaint with the state Ethics and Campaign Disclosure Board on October 28. He charged that the Cedar Rapids Gazette made an "illegal contribution" to his opponents -- Republican Doug Gross and Democrat Tom Vilsack -- by inviting them to participate in a televised debate, while excluding the two third-party candidates.

Clearly a hunger strike is compatible with libertarian principles.

Just as clearly, laws that limit free speech on the pretext of "campaign finance" regulations violate individual rights. Libertarians should seek to repeal unjust laws, not use those laws for their own advantage. As a practical matter, how is the LP supposed to convince voters it is the "Party of Principle" that upholds individual rights and the Bill of Rights, if its candidates are willing to violate the property and speech rights of others?

On May 9, 2000, the national LP released a story titled, "Libertarian Party joins suit to stop 'illegal' 2000 presidential debates."

The Libertarian Party has joined a lawsuit against the Federal Election Commission, charging that the planned 2000 presidential debates violate federal law because they are partisan campaign events disguised as "educational" forums... Steve Dasbach, Libertarian Party national director [said] "Under the current system of presidential debates, the FEC allows the Republicans and Democrats to violate the very campaign finance laws they wrote and passed -- to the detriment of a fair and open political system..."

The lawsuit charges that the FEC's Debates Regulation -- which allows non-profit corporations to stage presidential candidate debates and accept funding from corporations and unions to defray the costs -- violates the Federal Election Campaign Act of 1971.

Federal law specifically prohibits corporations and unions from contributing to partisan federal campaigns, but the FEC arbitrarily ruled that the presidential debates do not qualify as partisan activity... [Dasbach continued,] "By allowing the CPD to accept prohibited contributions to fund these unfair debates, the FEC is acting in an illegal and partisan manner. This lawsuit is designed to end that unfairness."

Of course, both corporations and unions get special treatment by the government. But again the appropriate libertarian response is to criticize existing injustices, not use those injustices as a pretext for more government meddling. (Dasbach does not offer any libertarian justification for the suit.)

In 2000, Harry Browne did offer a libertarian justification for a legal challenge. An LP release describes Browne's "planned lawsuit against the FEC."

[T]he campaign attracted considerable media attention when the Massachusetts LP filed a last-minute lawsuit in Suffolk Superior Court in Boston to try to stop the first debate, held in Boston on October 3. The lawsuit noted that the state legislature spent $900,000 to help the University of Massachusetts defray the debate's costs -- and argued that since the LP is a recognized political party in the state, Browne should be allowed to participate. "It is an outrage that taxpayer money is used to fund biased, exclusionary debates," said Massachusetts LP State Chair Elias Israel. "The Libertarian Party will not go to the back of the bus in Massachusetts." A judge rejected the suit, saying it was filed too late.

Libertarians, of course, oppose subsidies. But given the state subsidizes a particular event, it's fair to argue such events should be inclusive. Thus, the lawsuit, while not directly supported by libertarian theory, is compatible with it.

Similarly, a 1996 Colorado suit pertains to legal inclusiveness:

The Libertarian Party of Colorado and its two candidates for U.S. House -- Richard Combs and W. Earl Allen -- lost a suit brought against the Colorado secretary of state alleging that state law discriminates against all candidates who are not members of either the Republican or Democratic party. Colorado law ensures that the top ballot position in all partisan races is always awarded to either the Republican or Democratic candidate... The suit was a civil rights action, alleging violation of the equal protection clause of the 14th Amendment to the U.S. Constitution, and infringements of freedom of speech and association guaranteed by the First and 14th amendments.

A more ambiguous case involves Ralph Shnelvar, the 2002 Colorado Libertarian candidate for governor. In an October 31, 2002 e-mail to the "lpco-chat" list, Shnelvar writes:

Dear Lovers of Liberty:

If you haven't heard my marijuana commercial, you should hear it: http://www.shnelvar.com/GormanCommercial.mp3 This commercial is pretty powerful.

It is powerful enough that the rock station, KTCL, didn't want to play it. I found that out early this morning and I have been fighting it all day.

Apparently the station manager didn't like the content of the ad and decided to pull it.

The first thing I had to do is find out if my recollection of the law was correct: Stations - if they accept any political ads - cannot censor anyone's ads.

So the first thing to do was spend .5 hours trying to find the law. Yup, found some citations ... that went back to 1996. Not good enough.

Called the FCC. Amazingly they responded swiftly and professionally. I was right. They sent me a copy of the relevant U.S. code by eMail. I love eMail.

So I call Clearchannel corporate (the owners of KTCL) and get on the horn with one of the staff attorneys. Being very polite and friendly, we discuss that particular section of the law. I eMail him a copy even though I suspect he was fully familiar with the law.

The attorney calls the various station managers.

My commercials will run tomorrow (Friday) and Monday roughly once every two hours.

So you see, David Bryant, I, too, am perfectly willing to use the law when I have to.

I consider Milton Friedman to be a libertarian and I often go by something he once said: "Just because I think that rent control is a stupid idea does not mean that I will not live in a rent controlled apartment."

Hey, I lived in a rent controlled apartment for nearly 12 years in New York. It was a dive but it was cheap.

I have to sympathize with the station manager. Perhaps he was afraid that he would be sued for what I said in the ad. (The law says that they can't be sued by what "I" say in the ad.) The only thing that they can censor for is obscenity and requests for violence.

In many ways I'm very sad that they are running the ads. I wish that they had turned me down and sent me a fax as to why. I almost got them to do that early this morning but then they refused to do anything at all until "I" called "their" attorney (who, conveniently, was out until Monday. I got through to another attorney.) Then I would have had a "real" story and would get 100 times the airtime that I will get from this small advertisement.

Sometimes you don't want to win the battle so that you can win the war.

This time I won the battle. Oh, well.

Ralph Shnelvar
Libertarian candidate for governor

Shnelvar could have taken several actions that would have been uncontroversial from a libertarian perspective. He could have attempted to use moral suasion to talk the station into running the ad. He could have threatened a negative media campaign against the station or a boycott. He could have explained that the station would bear no legal liability by running the ad. He also could have attempted to argue the station was violating an agreed-upon contract. Obviously libertarians support legal recourse to enforce contracts.

What's controversial is Shnelvar's argument that it's appropriate to use an arbitrary law to force a private radio station owner to run ads.

Shnelvar cites Friedman's comments about living in rent-controlled apartments. At a certain level, it is simply impossible to avoid all interaction with unjust state policies. The state taxes nearly half our income and regulates every conceivable activity. Death is the only escape from the state (but even suicide and burials are state-regulated).

But does that mean "anything goes" for the libertarian? Should a business owner use the police to force out a competitor just because the law allows him to? Should a libertarian join the DEA and murder plant growers on midnight raids?

Ayn Rand argues, "The right to accept [government scholarships] rests on the right of the victims to the property (or some part of it) which was taken from them by force." Similarly, one person I know accepts Social Security payments on the grounds that he's recapturing the money taken from his kids by force. Of course, as Rand notes, libertarians must also advocate the repeal of such programs.

If we are merely attempting to recapture some tax dollars, or if we are taking advantage of a situation that would not otherwise be different (such as living in a rent-controlled apartment), arguably the libertarian can justifiably benefit from unjust laws (while advocating their repeal). But that's not what we're talking about in the case of legal suits (or threats of such) for (private) media access. We're talking about imposing a new property-rights violation on an innocent party. I don't see how that can possibly be justified on libertarian grounds.

The Colorado Freedom Report--www.FreeColorado.com