Pacifica v. First Amendment

By now it's common for critics of particular corporations to create Web sites that lay out their case. It's also common, unfortunately, for the targeted business to respond with a legal threat, alleging that such sites violate the company's trademark.

Now the habit seems to have spread into the nonprofit sector: On February 15, lawyers representing the Pacifica radio network, which used to bill itself as "free speech radio," wrote to three dissident sites--wbai.net (named for the network's New York station), wbaifree.org, and savepacifica.net--telling them to get off the Web or face legal action. At issue: Structural changes in the way Pacifica operates and the editorial direction of the network. At the core of the network are five high-profile radio stations (in Berkeley, Los Angeles, Houston, New York, and Washington, D.C.) run by the nonprofit Pacifica Foundation; additionally, there are some 60 "affiliate" stations around the country that run Pacifica programming.

Sounding more like hired mouthpieces for a Fortune 500 firm than attorneys for a left-wing alternative news outlet, Pacifica's lawyers told the wbai.net folks in a February 12 cease-and-desist request: "Appropriate action will be taken against you to enjoin your use of the domain name and retrieve the domain name from you. We will also consider seeking temporary, preliminary and permanent injunctive relief, as well as damages for the harm suffered and which continues to be suffered by our client, together with attorney fees because of the wrongful deprivation caused by your illegal use of our client's registered trademark and trade name."

At press time, wbaifree.org has temporarily shut down, while the others remain active; all three plan to fight the network if it brings them to court.

The Pacifica Foundation was founded by anarchists and pacifists in 1946, and its first station went on the air in 1949. In the years since, it gradually moved toward a more conventionally leftist posture, but it still had room for diverse ideological fare. (Even National Review had a Pacifica show for a while, in the early '60s.) Over the past 10 years, however, the network's management has been trying to gentrify its stations, aiming for the niche formerly filled by the increasingly centrist National Public Radio.

To that end, it has canceled eccentric programs, fired dissident staffers, and overridden its member stations' traditional autonomy. It also made several terrible P.R. blunders--perhaps most infamously when, wanting to remove unpaid staff from its stations' unions, it hired the American Consulting Group, a "labor and employee relations consulting firm" that specializes in, among other things, keeping companies union-free. (Note: When you operate a leftist radio network, your listener-supporters will not be happy to hear that you've been cuddling with professional union-busters.) It also dropped the "free speech radio" slogan.

The turning point came two years ago, when Pacifica banned members of its stations' local advisory boards from serving on the national board, in effect removing the lower rungs from any role in guiding network policy. As a result, Pacifica's governing directorate became a completely self-selecting body, shielded from the former checks on its power put in place by earlier, more idealistic generations of broadcasters. (Interestingly, the new rule wouldn't have passed without a last-minute assist from the Corporation for Public Broadcasting, which announced that it might have to cut off all subsidies to Pacifica almost immediately if it didn't change its structure. From the '40s through the '70s, of course, Pacifica got by without government money. Given the feds' consistent support for the network's new direction, many of the dissidents argue that it would be better off without it again.)

The threatened sites argue that, in the course of pushing through this structural change, the national board violated the foundation's bylaws. This -- along with other complaints -- has prompted three lawsuits against the foundation.

The dissidents make a strong case. But judging from its threats against the Web sites, Pacifica would prefer that outsiders not get a chance to hear it.