Judge Gags Rudy and Rupert

First Amendment mugged!

Michael McMenamin from the February 1997 issue

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The franchise agreement between the city and Time Warner is no more specific. The fact is that New York City has used its PEG channels for everything from broadcasting city council meetings to mayoral press conferences to Japanese language shows to Italian language game shows to horse racing. Yes, horse racing. And Time Warner never complained about the horse racing or anything else on PEG channels, let alone the nudity and sexually explicit programs on the PEG channels open to the public, which the city doesn't control.

So if Giuliani is doing a favor for a political supporter by agreeing to run Fox News on the city's PEG channel, he's only exercising the city's First Amendment rights. The legislative history of the 1984 Cable Act specifically stated that the PEG channels "will mean a wide diversity of information sources for the public--the fundamental goal of the First Amendment--without the need to regulate the content of programming provided over cable."

Unfortunately, Judge Cote spent little time considering the city's rights to use its cable channels. She clearly believed Giuliani was making a payoff to a political supporter, Rupert Murdoch, and she didn't like it, so she had to somehow make Time Warner the injured party.

Here's how she did it--and no, I'm not making this up. If New York City is allowed to carry Fox News on its own channels, it might become very popular. If it becomes very popular, then Fox might ask the city to take Fox News off the city's channel and hope that the absence of Fox News will cause viewers to put pressure on Time Warner to carry Fox News on its own commercial channels. If Fox News is taken off the city channels, Time Warner might feel obligated, both for economic reasons and to keep their viewers happy, to put Fox News on their commercial channels, even though Ted Turner thinks Rupert Murdoch is a disgrace to journalism. And if all these things happen, then Time Warner's First Amendment rights to choose what to run on its cable channels will have been violated by New York's exercise of its own First Amendment rights to do what it chooses with its own channels. So, in the name of the First Amendment, a federal judge has forbidden New Yorkers to see Fox News.

If the people of New York City don't like what Mayor Giuliani has done, they can do something about it at the next election. In the meantime, it should be none of Time Warner's business, much less that of a federal court.