Re: [dvd-discuss] ClearChannel Plays It Safe

[Bryan Taylor <bryan_w_taylor(at)yahoo.com>]

--- Michael.A.Rolenz@aero.org wrote:
> The courts have many times declared policy set by Congress as 
> unconstitutional and often set aside much of the implementation of various 
> policies because they violate the intent of policies. Look at 
> environmental cases these days. Look at some of the land use cases. 
> Congress cannot just vote something without ultimate review as you appear 
> to be claiming. THere are checks and balances. Judicial review is one.

The founding principle of our democratic republic is separation of powers. It
is not the role of an unelected judiciary to substitute their judgement on
policy matters for that of the elected legislative branch of government. Only
when legislative enactments threaten a clear constitutional principle is
judicial review appropriate. In a democratic society, the best you can hope for
is to have to live with a policy you don't like a little less than half of the
time. 

You seem to be confusing my explaination of the doctrine of "judicial
restraint" with some kind of rejection of judicial review altogether. The
doctine of judicial restraint absolutely permeates American jurisprudence from
its inception to the present day. Generally, strict or intermediate scrutiny
have to be qualified for, with a burden on the claim of violation. Failing
that, you are left with the rational basis test under which Democracy almost
always wins. 

Rehnquist's magnificent opinion in US v. Lopez is the only example I know of
(other than it's progeny) where the Court rejected a law as not meeting a
rational basis type test.

If you want to discuss specific examples like "land use cases", "environmental
cases", please at least name the case.

> While Congress may be charged with promoting commerce, I reinterate, your 
> argument comes down to that the means justifies the end. [...]

Quite frankly, yes, this particular means (Democracy) absolutely does justify
the end (policy). This is precisely why I accept the rule of law, even though
it occasionally means I must obey laws I disagree with. You seem to take great
satisfaction reducing my position to this "means justify the end" phrase, as if
you can triumphantly stamp QED.

> Consider 
> monopoly. Now that is a fine way of promoting commerce and increasing tax 
> revenues. What's more it makes getting taxes much simpler. Instead of 
> having to get returns from thousands of businesses, the IRS only needs 
> one. That is a counter example to your argument that any means that 
> promotes commerce and increases tax revenues passes a rational test. 

In fact, the laws against monopoly are entirely statutory and did not exist
before the time of Theodore Roosevelt. You can search the Constitution in vain
for any hint that Congress must adopt antitrust legislation. I certainly am
glad they did, though.

> [...] Were promoting commerce and tax revenues the only criteria, then there 
> is nothing to distinguish between any scheme before Congress. BTW- Where does

> it state in the Constitution or the Bill of Rights or Any Amendment that 
> one of Congresses goal is to increase tax revenues? 

That would be Article I, Section 8, Clause 1: "The Congress shall have power to
lay and collect taxes, duties, imposts and excises, to pay the debts and
provide for the common defense and general welfare of the United States; ..."
 
> Your argument regarding the scarcity of radio spectrum is incorrect.  Not 
> only is is a finite resource but there is a scarcity of it - for technical 
> reasons. Take a look at your TV listing. Spin through your FM tuner 
> sometime. Lots of gaps is what you see and hear? Must be a lot available 
> for use? Wrong. The gaps are there to not only to prevent adjacent channel 
> interfernce between LOCAL stations in an area but stations farther away. 

You prove my point. The assumption is that all broadcasting will be by big
players. You basically admit that there is plenty of room for rowboats to
manuever in and around the ships. Have you ever been near an airport or park
and tuned your AM dial to hear about it? 

A competent HAM operator could do this exact thing, but NO, it's only the
government who can have a rowboat, because your beloved FCC declares that
"there is no right to broadcast" to justify their expansive freedom destroying
regulation which results in me having to choose which set of 20 songs I want to
hear five times a day.

Frankly, if broadcasting was treated exactly like homesteading, I think things
would be vastly superior. The only rule needed is that once you've started
broadcasting on a given frequency, at a given power, from a given location,
that others have to stay a certain interference "distance" away from you. Other
than that, after 1 year of operation (say), you own it. 

I'd like to return to an idea I touched in a previous post. Just broadcasting
per se is in fact a public service. With the advent of subscription based TV
and radio wire services such as cable TV, you can literally put a dollar figure
per month on the  equivalent value to the end user. Basic cable, say 20
channels might typically be $10 month (say). A rough calculation would tell you
that a typical individual channel would be worth $0.50 per month per TV. You
could make a similar calculation by examining PBS donations per viewing
audience. The actual figure is not important, but it's in the range of a few
bucks per year per TV given to the public for free. Giving things of value to
the public is a rational definition of "public service". 

The MPAA makes a similar argument when they say that without CSS, they wouldn't
have offered movies to the public for sale. Congress fashions Copyright law
precisely to encourage authors to bring their works to market so that the
public may benefit from them. If you flippantly dismiss this argument, you will
lose every time in Court. It IS a powerful argument, even if it ultimately
fails. The counter argument is that Congress' promotion of commerce in works,
though given wide deference, is never the less constrained by other
Constitutional principles and allowing mediums of hobbled fair use violates
those.


__________________________________________________
Do You Yahoo!?
Get email alerts & NEW webcam video instant messaging with Yahoo! Messenger. http://im.yahoo.com