Sinclair TV defies originalism

Sinclair Communications holds the most TV station licenses of any broadcaster. It wants more, reaching over 70 percent of American homes.

To put this power grab in context, there’s a useful lesson from Supreme Court justices’ interpretation of the Constitution – Antonin Scalia, Neil Gorsuch, and Hugo Black.

It’s called “textualism,” or “originalism.” Originalists believe judges can’t say a word “means just what I choose it to mean” – what it has come to mean, or what they wish it meant. A word means what those who wrote it meant by it, at the time they wrote it.

Suppose we apply “originalism” to Sinclair. What was the intent of those drafting laws regulating broadcasters?

New technology leaves us struggling for vocabulary, let alone understanding. Automobiles were “horseless carriages;” radio was“wireless” telegraphy.

Given the mystery and miracle of 1920s radio, it’s remarkable Herbert Hoover (then Commerce Secretary) could see radio’s “ability . . . to furnish entertainment, instruction, widening vision of national problems and national events.” Even U.S. broadcasters, agreed with Hoover that, “it is inconceivable that we should allow so great a possibility for service to be drowned in advertising chatter.”

The Radio Act permitted “the use of such channels, but not the ownership thereof . . . for limited periods of time, under licenses [which shall not] be construed to create any right, beyond the terms, conditions, and periods of the license.” The standard for granting and renewing licenses was “the public interest.”

In 1932 a federal appellate court upheld the Commission’s denial of renewal for a broadcaster who regularly defamed government, officials, labor, and various religions. If broadcasters are permitted to “inspire political distrust and civic discord,” it wrote, radio “will become a scourge.”

Airtime for one candidate required “equal opportunity” for opponents. Personal attacks generated opportunity to reply. A “fairness doctrine” didn’t control content but demanded treatment of public issues and presentation of a range of views.

As early as 1926, when Congress was debating the Radio Act, Texas Congressman Luther Johnson warned, “American thought and American politics will be largely at the mercy of those who operate these stations.” If “a single selfish group is permitted to . . . dominate these broadcasting stations . . . woe be to those who dare to differ with them. It will be impossible to compete with them in reaching the ears of the American people.”

As late as 1970 no licensee could operate more than one AM, FM, and TV in one market. The national limit was seven AM, seven FM, and five VHF TV stations. Rules prohibited ownership combining stations and newspapers.

With broadcasters’ pressure on Congress and the FCC, regulations change. Original intent does not. Were it followed today, Sinclair would not have the licenses it does, let alone more. It would not dictate “local” commentaries to stations legally responsible for their content. And it could not be a propagandist for a single official, candidate, or ideology.

• Nicholas Johnson served as commissioner on the Federal Communications Commission from 1966-1973. Comments: mailbox@nicholasjohnson.org