Nice Television Station Ya Got Here. Be A Shame If Anything Happened To It.
In competition with Ken's post immediately below, we do have a competitor for the "Quickest to act like an asshat lawyer" record: Dora V. Chen, "Esq.," assistant general counsel to the Service Employees International Union.
Ms. Chen wants Little Rock Arkansas television station KTHV, and a few similar stations, to know that if they continue to run paid ads opposing the so-called Employee Free Choice Act, a federal bill which would abolish anonymous voting for employees considering the question of whether to unionize, her union, its officials, and members might, just might, flood the station with complaints to the Federal Communications Commission seeking revocation of broadcast licenses:
As you undoubtedly know, unlike federal candidates, political organizations do not have a right to command the use of broadcast facilities. Because you have no legal obligation to air the advertisement, your station bears responsibility for its content when you do grant access. As a broadcast licensee, you must assume responsibility for all material which is broadcast through your facilities and therefore have a duty to protect the public from false, misleading, or deceptive advertising. Failure to prevent the airing of false, misleading, or deceptive advertising may be probative of an abdication of licensee responsibility.
You should immediately cease airing this false and deceitful advertisement. [Citations omitted.]
Let's be clear here, since Ms. Chen isn't. Her warning is an implicit threat to file a grievance against television stations with the FCC concerning political speech. It is highly, highly unlikely that even the FCC, a board consisting of appointed partisan hacks, would ever uphold such a complaint. Even if it did, by the time the matter got to a federal court for review, the complaint would instantly be dismissed on First Amendment grounds.
The cases Ms. Chen cites in her letter concern broadcaster liability for the tort of defaming a private person (calling a politician a "communist" in 1947), and technical license violations by a broadcaster which obtained its license through false pretenses, informing the FCC that it would show news programming, which in fact consisted of reading the Racing Report in Hungarian. Neither case applies. The "communist" case was decided before New York Times v. Sullivan (actual malice for defamation of public figures) and a host of post-1960 First Amendment cases, and there's no evidence that KTHV deceived the FCC, or anyone else, to obtain its license.
In any event, how can one defame a bill? This little guy:
presumably lacks standing to sue, or to file an FCC complaint.
No, what SEIU and Dora V. Chen, "Esq" (incidentaly, it is a hallmark of pomposity and pretension in a lawyer when one refers to herself as "Esquire") are doing is using the threat of litigation to shut down public debate, political speech they, for understandable reasons, doesn't like. They know they couldn't get away with suing the ad's creators for defaming the Employee Free Choice Act, or anything else, so they'll intimidate anyone who dares to run the ad, making sure its message isn't heard, by threatening a license revocation complaint.
Winning the complaint wouldn't be the issue. Intimidation would be. Of course any complaint against a small-town television station, no matter how frivolous, against the federal government as well as a million-plus member union like SEIU (which can spend its members' money without their consent for this sort of intimidation), would be ruinous. Don't like it? Enjoy the the legal bills, hicks!
And so political speech is shut down without a shot fired, or a suit filed. Of course, threats and complaints of this sort could be addressed, and the tables turned, if federal law included remedies such as California's anti-SLAPP law, which allows the victim of a complaint directed against legal speech to recover damages and attorneys' fees from those, such as the SEIU, who abuse litigation to shut it down.
Perhaps KTHV and others in their situation should run a television ad in favor of a federal anti-SLAPP statute. I'd watch.
Note: The title of this post is intended to remind the reader that many unions, such as but not necessarily including the Service Employees International Union, were or are affiliated with the Mafia and other organized crime gangs, and that many unions, such as but not necessarily including the Service Employees International Union, use intimidation, including the threat of baseless legal complaints, to enforce their will.
Perhaps Dora Chen, "Esq." will now seek to have my blogging license revoked.
Via Walter Olson, through Twitter.