Coyote Blog

In a previous post, I wrote:

There were two interesting court decisions today that each can be summarized as "the press does not have rights or legal privileges beyond those granted to any ordinary citizens"

A number of readers were confused by this, as we have always seen the brave reporter on TV or in the movies protecting their information sources under a "shield law".  Many states, but not all, do in fact have shield laws that give reporters some protection against revealing their sources of information under subpoena.  However, there is no such law at the federal level, and any state laws that exist do not apply to federal courts or subpoenas.

However, despite this lack of an explicit federal shield law, most media organizations argue that the Constitution confers such privilege on them anyway.  Per the NY Times, some judges agree:

[Judge Robert Sweet] explained that the United States Court of Appeals for the Second Circuit in New York recognized a qualified First Amendment privilege that protects reporters from being compelled to disclose their confidential sources

This confuses me - I have read the first amendment many times.  I see the stuff about freedom of the press.  I always naively assumed this meant that they had the freedom to publish any old bonehead thing they wanted, including criticism of the government, without any limitations by the state.  I never realized that this meant that they also had the freedom to evade subpoenas and cover up evidence of crimes, things the rest of us would go to jail for (e.g. Martha Stewart).  Does the fact that the same amendment refers to freedom of religion mean that priests can legally cover up wrongdoing?  Do freedom of speech protections mean that bloggers can hide sources from subpoenas?

I find the judge's logic, as reported by the Times, to be scary:

The judge, Robert Sweet, reasoned, correctly, that the subpoenas for the phone records were the functional equivalent of demanding testimony from the reporters themselves, and he took note of the important role of confidential sources in news investigations of the Watergate, Iran-contra, Monica Lewinsky and Abu Ghraib scandals.

In other words, the Judge thought that allowing the press to hide their sources was useful in some cases historically, so he created a new first amendment privilege.  This is the kid of action that irritates the heck out of me.  What the judge just did in this case is legislate.  He saw a need in society and created a new privilege for a class of citizens based on that need.  You may even agree with his logic - in fact, I may even agree in part with his logic - but it is not his job!  He should be saying: "I'm sorry, as useful as such a protection may be, I see no basis for it in federal law or in the Constitution.  If you think you need one, write your Congressman but for now, there is no such privilege".  UPDATE:  If judge Sweet needs an example, here is one from an unrelated case:

U.S. District Judge Henry F. Floyd ruled Monday that the president of the United States does not have the authority to order Jose Padilla to be held indefinitely without being charged.

"If the law in its current state is found by the president to be insufficient to protect this country from terrorist plots, such as the one alleged here, then the president should prevail upon Congress to remedy the problem," he wrote. (hat tip LGF)

Sounds a lot like my suggestion above, huh?  This strikes me as a good judicial practice - rule on the law as it is, rather than what you think it should be.  We actually don't know whether Judge Floyd thinks that it is a good idea for the President to be able to order terrorist suspects held indefinitely, nor should his opinion matter.

Another Update:  Professor Bainbridge has a good post on yet another case of legislating from the bench.  I am lukewarm on the death penalty in general and am opposed the death penalty for minors, but I still think the Supreme Court is dangerously overstepping its bounds here.  The majority opinion talks about practices in other countries and public opinion - what does that have anything to do with Consitutionality? Those are arguments for legislation banning death penalty for minors in the legislature, not for the Court.

By the way, the Times wants to be able to keep secrets, but gets pretty huffy when other people have the same privilege:

Some judge may have looked at the issue, but we have no way of knowing, given the bizarre level of secrecy that still prevents the reporters being threatened with jail from seeing the nine-page blanked-out portion of last week's decision evaluating the evidence.

I found one other point in this same NY Times editorial to be hilarious.  I have not really commented on the Plame affair, because I found it to be pretty boring.  In fact, it is telling that most discussion of the affair ended the day after the elections.  Anyway, I found this note by the NY Times pretty funny:

Meanwhile, an even more basic issue has been raised in recent articles in The Washington Post and elsewhere: the real possibility that the disclosure of Ms. Plame's identity, while an abuse of power, may not have violated any law. Before any reporters are jailed, searching court review is needed to determine whether the facts indeed support a criminal prosecution under existing provisions of the law protecting the identities of covert operatives.

There is nothing wrong with this statement in and of itself - in fact, I agree.  Its funny only because the Times was the one reporting that it was in fact a crime committed:

Officials are barred by law from disclosing the identities of Americans who work undercover for the C.I.A. That provision is intended to protect the security of operatives whose lives might be jeopardized if their identities are known.

Among those who have cried foul are several Democratic senators, including Charles E. Schumer of New York, who have said that if the accusation is true and if senior administration officials were its source, law enforcement authorities should seek to identify the officials who appeared to have violated the law. Mr. Schumer has asked Robert S. Mueller III, director of the Federal Bureau of Investigation, to look into the case.

The Best of the Web pointed out this even more telling statement from a 12/31/04 NYT editorial.  Note the complete lack of uncertainty as to whether there was any crime committed (emphasis added)

The change was announced by the newly appointed Deputy Attorney General James Comey, who turned the case over to a respected career prosecutor, Patrick Fitzgerald, the United States attorney in Chicago. Mr. Fitzgerald is charged with finding out who violated federal law by giving the name of the undercover intelligence operative to Mr. Novak for publication in his column.

Interesting to see how their perspective changed when the subpoenas landed at their door.  "Law enforcement needs to get to the bottom of this as long as, err, they don't ask us to help".

Its been a frustrating day dealing with the Arizona Republic.  The day began pretty exciting as they had a beautiful article in the style section today featuring the handbags my wife creates.

Our first disappointment was the fact that the paper forgot to include my wife's web site in the article, giving readers no contact information in the article if they are interested in the purses.  Then we found that the link to her article in the style section of the Republic online was wrong, and only produced an error.  Now, mistakes like this happen - I actually messed up a link to my wife's web site in this article, but I quickly fixed it when an alert reader noticed.  So I emailed the webmaster at the Republic, and, several hours later, I got an email saying something like "here is the correct link".  But the link online is still broken!  In the time they sent me the email with the correct link, they could have just fixed the link online.  Six hours later, it still is not fixed.  This strikes me as classic dead-tree journalism, thinking in terms of making corrections days or weeks later rather than in real time.

UPDATE:  Yea!  Link fixed.  Wonder if my sending them this blog post helped or if they were doing it anyway.

I predicted just a week ago that recent media credibility issues would lead to (misguided) calls for tighter credentialing and licensing of journalists:

I resisted the call by a number of web sites at the beginning of the
year to make predictions for 2005.  However, now I will make one:  We
will soon see calls to bring a tighter licensing or credentialing
system for journalists, similar to what we see for lawyers, doctors,
teachers, and, god help us, for beauticians.  The proposals will be
nominally justified by improving ethics or similar laudable things,
but, like most credentialing systems, will be aimed not at those on the
inside but those on the outside.  At one time or another, teachers,
massage therapists, and hairdressers have all used licensing or
credentialing as a way to fight competition from upstart competitors,
often ones with new business models who don't have the same
trade-specific educational degrees the insiders have.

Hah, it didn't take a year - it only took a week.  Several commentators point out that those jumping all over the Jeff Gannon affair are effectively arguing for tighter credentialing.  From Glenn Reynolds:

I also think that the people who are trying to inflate this into a big
issue are making a dreadful mistake. I eagerly await the reaction when
the White House responds to this criticism by requiring everyone who
attends a press briefing to make a full financial and sexual
disclosure, and starts rating news outlets as "real" or "fake"
according to bias. (If I were Rove I'd make some rumblings about this
to the press corps, and I'd explicitly cite the lefty bloggers by name,
just to stir up trouble . . . .)

David Corn warns:

There is a need for professional accreditation; space is limited. Yet
there is nothing inherently wrong with allowing journalists with
identifiable biases to pose questions to the White House press
secretary and even the president. And if such a reporter asks a dumb
question--as did Gannon/Guckert (which triggered this scandal)--the
best response is scorn and further debate. Bloggers should think hard
when they complain about standards for passes for White House press
briefings. Last year, political bloggers--many of whom have their own
biases and sometimes function as activists--sought credentials to the
Democratic and Republican conventions. That was a good thing. Why
shouldn't Josh Marshall, Glenn Reynolds, John Aravosis, or Markos
Moulitsas (DailyKos) be allowed to question Scott McClellan or George
W. Bush? Do we want only the MSMers to have this privilege?

There were two interesting court decisions today that each can be summarized as "the press does not have rights or legal privileges beyond those granted to any ordinary citizens"

The first case is the DC Circuit's decision to allow subpoena's of reporters about their sources in the Valerie Plame affair.

Appellants counter that Justice Powell could not have meant what the United States argues, as this would have given reporters no more protection than other citizens. However, they never make it clear why they are convinced that Justice Powell must have intended to give reporters more protection than other citizens. The Constitution protects all citizens, and there is no reason to believe that Justice Powell intended to elevate the journalistic class above the rest.

Much more here at Beldar.  I can't resist one quote from him:

And on its own, the DC Circuit's lengthy decision
today is absolutely fascinating for hard-core law wonks, especially
ex-judicial clerks. Indeed, I feel the urge to write several thousand
words about it "” dry quotes from the written opinions, connected by an
over-extended football metaphor, leavened with dollops of snark.

LOL.

The second case is in Maryland, where the state court determined that two Baltimore Sun reporters do not have the guaranteed right to a level of access to government officials and information beyond that given to a private decision.  As a citizen of that state, I might want to punish my elected representative at the polls if I thought they were trying to stifle criticism by managing the press poll too much; however, I agree with the court that the paper is not owed any legal redress.

I am sure we will hear cries tomorrow from editors about growing threats to the first amendment.  Don't be confused: These decisions are about press privilege, not press freedom.  Neither you nor I can ignore a federal subpoena, and neither should a reporter.

If you want to worry about the first amendment, read this:

The survey of 112,003 students finds that 36% believe newspapers should get "government approval" of stories before publishing.

Eeek.

Note:  the following post grew out of an update to this post -- I have not pulled it out into its own post.

I resisted the call by a number of web sites at the beginning of the year to make predictions for 2005.  However, now I will make one:  We will soon see calls to bring a tighter licensing or credentialing system for journalists, similar to what we see for lawyers, doctors, teachers, and, god help us, for beauticians.  The proposals will be nominally justified by improving ethics or similar laudable things, but, like most credentialing systems, will be aimed not at those on the inside but those on the outside.  At one time or another, teachers, massage therapists, and hairdressers have all used licensing or credentialing as a way to fight competition from upstart competitors, often ones with new business models who don't have the same trade-specific educational degrees the insiders have.  As Milton Friedman said:

The justification offered [for licensing] is always the same: to protect the consumer. However, the reason is demonstrated by observing who lobbies at the state legislature for the imposition or strengthening of licensure. The lobbyists are invariably representatives of the occupation in question rather than of the customers. True enough, plumbers presumably know better than anyone else what their customers need to be protected against. However, it is hard to regard altruistic concern for their customers as the primary motive behind their determined efforts to get legal power to decide who may be a plumber.

Such credentialing can provide a powerful comeback for industry insiders under attack.  Teachers, for example, use it every chance they get to attack home schooling and private schools, despite the fact that uncertified teachers in both these latter environments do better than the average certified teacher (for example, kids home schooled by moms who dropped out of high school performed at the 83rd percentile).  So, next time the MSM is under attack from the blogosphere, rather than address the issues, they can say that that guy in Tennessee is just a college professor and isn't even a licensed journalist.

Fortunately, this effort will fail, in part because it is fighting the tide of history and in part because constitutional speech protections would probably invalidate any strong form of licensing (I wish there were similarly strong commerce protections in the Constitution).  Be careful, though, not to argue that this proposal will fail because the idea is stupid, because it can't be any more stupid than this form of licensing (or this one;  or this one).  Here are the various trade-specific licenses you need here in Scottsdale - I would hate to see the list for some place like Santa Monica.  My favorite is the one that says "An additional license is required for those firms which are going out of business."

I haven't blogged at all about the whole Eason Jordan thing, partially because blogging on it would be like adding one extra reporter to the Superbowl, and partially because his comments, while way out of line for head of a journalism organization, didn't seem to be much worse than all the other things he has said over time.

Anyway, I mention it here because whether his comments were "off the record" seems to be an important part of the controversy.  I can't think of any ethical justification for this distinction.  I can understand when comments are "private" (say with my family around my house) or "confidential" (say with my managers about what we are paying someone) or even "anonymous" (such as when a source might be blowing the whistle on their boss).  What, though, does it mean if public comments in a public forum are "off the record"?

The only practical, rather than ethical, justification I can come up with is that someone wants their remarks to be "off the record" when they are telling one audience something different than another audience.  Such as when a politician speaks radically to his/her hard left or right base, but doesn't want moderate voters to hear the extreme positions they are advocating.  Or such as when a US news director makes anti-American comments to an anti-American audience and doesn't want his US viewers to hear.  There is nothing very pretty about either of these situations - why does the media continue to enable this behavior?

The only other argument I can come up with is that the media tends to be so incompetent that they can seldom summarize a speaker's remarks correctly or quote them in context, and speakers know this, so they use "off the record" to protect themselves from the media's incompetence.  But if this is the true justification for "off the record", it is ironic and funny to see the head of CNN news using it.  He is basically saying that "I know in advance that my own organization will get my remarks wrong so I won't allow them to quote me".

UPDATE and PREDICTION:  I resisted the call by a number of web sites at the beginning of the year to make predictions for 2005.  However, now I will make one:  We will soon see calls, from media insiders, to bring a tighter licensing or credentialing system for journalists, similar to what we see for lawyers, doctors, teachers, and, god help us, for beauticians.  The proposals will be nominally justified by improving ethics or similar laudable things, but, like most credentialing systems, will be aimed not at those on the inside but those on the outside.  At one time or another, teachers, massage therapists, and hairdressers have all used licensing or credentialing as a way to fight competition from upstart competitors, often ones with new business models who don't have the same trade-specific educational degrees the insiders have.  As Milton Friedman said:

The justification offered [for licensing] is always the same: to protect the consumer. However, the reason is demonstrated by observing who lobbies at the state legislature for the imposition or strengthening of licensure. The lobbyists are invariably representatives of the occupation in question rather than of the customers. True enough, plumbers presumably know better than anyone else what their customers need to be protected against. However, it is hard to regard altruistic concern for their customers as the primary motive behind their determined efforts to get legal power to decide who may be a plumber.

Such credentialing can provide a powerful comeback for industry insiders under attack.  Teachers, for example, use it every chance they get to attack home schooling and private schools, despite the fact that uncertified teachers in both these latter environments do better than the average certified teacher (for example, kids home schooled by moms who dropped out of high school performed at the 83rd percentile).  So, next time the MSM is under attack from the blogosphere, rather than address the issues, they can say that that guy in Tennessee is just a college professor and isn't even a licensed journalist.

Fortunately, this effort will fail, in part because it is fighting the tide of history and in part because constitutional speech protections would probably invalidate any strong form of licensing (I wish there were similarly strong commerce protections in the Constitution).  Be careful, though, not to argue that this proposal will fail because the idea is stupid, because it can't be any more stupid than this form of licensing (or this one;  or this one).  Here are the various trade-specific licenses you need here in Scottsdale - I would hate to see the list for some place like Santa Monica.  My favorite is the one that says "An additional license is required for those firms which are going out of business."

Release from the Associated Press:

Photo of Kidnapped Soldier Fake, But Accurate

London:  We are working hard to authenticate the photograph of the American Soldier we reported kidnapped by Islamic terrorists freedom fighters.  A number of extremist right-wing reactionary bloggers have accused the AP of being duped by a photo of an action figure propped against a cement block.  Bloggers point to differences in clothing vs. standard US combat gear as well as a similarity in appearance to the "Cody" action figure.

The AP stands by its story.  We have engaged a world famous collector of 1970's Barbie dolls that we met in an eBay chat room who has assured us that no action figure clothing ever made could possibly match what is shown in the photo.  We are meeting with our expert next month at the Houston rodeo to review his findings.

Even if the photo is eventually determined to be fake, we still believe it is an accurate representation of our need to find a negative story in Iraq to counterbalance the positive press President Bush has gotten after the recent elections. 

And, in a related story... well, not really related, except it is also about Iraq... OK, actually its related only because I am too lazy to start a new post:

UN officials reacted strongly to the attacks on its recent blogads taking credit for the recent Iraqi election.  Critics called the ads rank hypocrisy, given the fact that the UN funneled over $20 billion of food money to Saddam, opposed the overthrow of Saddam, and cut-and-run from helping to rebuild Iraq at the first sign of violence.  The UN said that the ads were perfectly consistent with its policy, since it "was against elections before it was for them."

Interviews of Iraqi citizens on the street showed strong support for the UN's lack of support.  Said one Iraqi who asked to remain anonymous, "given the UN peacekeepers terrible performance in Kosovo and their serial rape and white slavery in the Congo and their sanctioning of genocide in the Sudan, we haven't really missed them."

Via Wizbang, who helped point the finger at the CBS forged memos, comes this story about an AP Report of a American service man supposedly held hostage:

Iraqi militants claimed in a Web statement Tuesday to have taken an American soldier hostage and threatened to behead him in 72 hours unless the Americans release Iraqi prisoners.

The posting, on a Web site that frequently carried militants' statements, included a photo of what appeared to be an American soldier in desert fatigues seated with his hands tied behind his back.

A gun barrel was pointed at his head, and he is seated in front of a black banner emblazoned with the Islamic profession of faith, "There is no god but God and Muhammad is His prophet."

It even is accompanied with this picture:

Only problem is that this is actually a photo of a GI Joe doll. 

The "professionals" at the AP were taken in hook line and sinker, leaving it to "amateurs" on the web to debunk the hoax in about a half and hour.  Read all about it at the Wizbang link above.

Update:  CNN has caught up on the story

Via Wizbang, who helped point the finger at the CBS forged memos, comes this story about an AP Report of a American service man supposedly held hostage:

Iraqi militants claimed in a Web statement Tuesday to have taken an American soldier hostage and threatened to behead him in 72 hours unless the Americans release Iraqi prisoners.

The posting, on a Web site that frequently carried militants' statements, included a photo of what appeared to be an American soldier in desert fatigues seated with his hands tied behind his back.

A gun barrel was pointed at his head, and he is seated in front of a black banner emblazoned with the Islamic profession of faith, "There is no god but God and Muhammad is His prophet."

It even is accompanied with this picture:

Only problem is that this is actually a photo of a GI Joe doll. 

The "professionals" at the AP were taken in hook line and sinker, leaving it to "amateurs" on the web to debunk the hoax in about a half and hour.  Read all about it at the Wizbang link above.

Update:  CNN has caught up on the story

Apparently, CBS is still mulling over candidates to replace Dan Rather.  Apparently, they have reduced the candidates of a "short list" of the people who might improve ratings over those garnered by Rather.  Unfortunately, this criteria has limited the list to ... just about everybody.  While this and other articles bandy about candidates, I still think my list was pretty good:

Improve ratings approach #1:  Finally get rid of the pretense that anchors are journalists rather than pretty talking heads.  Hire Nicolette Sheridan, or maybe Terri Hatcher.  Or, if you feel CBS News deserves more gravitas, in the Murrow tradition, how about Meryl Streep?

Improve ratings approach #2:  Go with comedy.  Bring in David Letterman from the Late Show to anchor the evening news.  "Tonight, we start with the growing UN oil for food scandal.  Uma - Anann.  Anann - Uma."  Or, if you want to segment the market differently, how about Tim Allen and the CBS News for Guys.  Or, if CBS wants to keep hitting the older demographic - what about Chevy Chase - certainly he already has anchor experience from SNL.

Improving Credibility Choice:  No one in the MSM really has much credibility left after the last election, but there is one man who would bring instant credibility to CBS News -- Bob Costas.  CBS should hire him away from NBC, like they did with Letterman.  Make him the evening news anchor.  Heck, if Bryant Gumbell can make the transition to the news division, certainly Costas can.

Become the acknowledged liberal counterpoint to Fox:  Hire Bill Clinton as anchor.  Nothing would generate more buzz than that hire, and he is at loose ends anyway (and think about all those wonderful business trips away from home...)  If Bill is not available, try James Carville.  I might even have to watch that.

Let the public decide:  Forget making a decision, and just create a new reality show like ESPN's Dream Job to choose the next anchor.  Each week the 12 finalists can be given a new task.  In week one, they have to pick up incriminating evidence about the President at a rodeo.  In week 2, they have to forge a believable set of documents from the early 70's, and survive criticism from about 10,000 bloggers.  They can kick one off the island each week based on the viewers votes.

CBS, and in fact all the network news programs, have a problem which caused me to rename them from the Tiffany network to "the Buick network":  Their median age news viewer was born while Hitler still ruled Germany.  As I wrote in that article,

It turns out that the network news programs have exactly the same problem, though none of them profess to be worried, despite the fact that the networks are losing share to competitors at a much faster clip than are US auto makers.  Journalism.org reports that the median age of an ABC News viewer is about 59, of an NBC News viewer is 60 and of a CBS News viewer is over 61.  Everyone who is younger has switched to cable, switched to the Internet, or switched off altogether.

More here.

Its amazing to me that Andrew Heyward still has his job at CBS.  Many others are asking the same question, including Ernest Miller, Rathergate & Captains Quarters.  The overriding question is this one:

The report clearly shows that the head of the embattled news organization did not perform as one would expect the head of a news organization to perform. Though Heyward clearly realized that there were problems with the reporting on the segment and issued a directive to clear up the matter, he does not appear to have provided sufficient overview or leadership to ensure that his directive was followed promptly and systematically. Instead of focusing on good reporting, as the head of a news organization should, he seems to have been primarily interested in damage control and not following up on his own directive.

Here is CBS's opinion of Heyward's performance in this matter, from Les Moonves:

But Heyward is an executive of integrity and talent, and the right person to be leading CBS NEWS during this challenging time

OK, so their position now is that the subordinates are at fault, and that the leader is not responsible for their actions or for the climate and controls in the organization that allowed the problems to occur.

This is really, really different than CBS's editorial position on OTHER organizations and leaders.  Check out the CBS editorial here on Enron.  Should Ken Lay be held accountable or was he an innocent dupe?  Hah, the editorial jumps right past this question, moving up a notch and asking why the board of directors weren't being held accountable. 

Ken Lay argues that he was duped and didn't know what was going on.  Note that this is his criminal defense - which may or may not work - but it certainly would not have worked to keep his job, even if Enron were alive today.  In Heyward's case, he admits he knew what was going on, but didn't get things fixed.  Heyward had his chance in the first 24 hours to save the credibility of CBS News and he blew it.

I have always thought that the media tends to support big government.  I have never understood if that is because the media is dominated by big-government liberals, as conservatives claim, or if there is some shared self interest between media and a large government, since so much of what is newsworthy flows from the government.  After all, look how dull the news gets in August when Congress lets out.  Anyway, I have always been frustrated by the unhelpful media coverage of budget debates.  In particular, the media seems to systematically want to call a slowing of spending growth a "cut".  Patterico's Pontifications has an example.

Europe has never had the strong tradition of or protection of free speech and press that we enjoy in the US.  For years, I have criticized the use of libel laws in Europe to stifle speech -- similar things are attempted in the US, but seldom get very far in the courts.

Now comes this proposal (courtesy of Captains Quarters):

The Council of Europe has called on its 46 member-states to introduce legislation on the right of reply to correct false information on online media.

It said the Committee of (Foreign) Ministers, executive of the European human rights watchdog body, had adopted a recommendation on the right to reply for online Internet media.

This recommended that members consider introducing legislation on the "right of reply or any other equivalent remedy, which allows a rapid correction of incorrect information in online or off-line media......"

Fortunately, our government does not have any legal or constitutional right of reply in any media, though the implications for the Internet are interesting since about 20% of my readers are in Europe, if you can trust my referral logs.  So lets give it a test:  the EU is a bureaucratic, statist nightmare.  There, lets see if that gets a response.

Television and Radio have always had a very different regulatory regime than any other type of media.  Unlike, say, newspapers or cable TV companies or satellite providers, television and radio companies have to get and continue to renew licenses and are expected operate in the public interest, whatever the heck that is.  TV and radio stations get access to what has become very valuable bandwidth for free, the only cost being that they have to give regulators what amounts to a veto over their content.  Because of this regulatory structure, you get goofy stuff like this:

The Federal Communications Commission's enforcement bureau has asked NBC for tapes of the opening ceremony of the Summer Olympics, apparently in response to one or more indecency complaints.

Its fun to laugh at this stuff, and it drives me crazy, but at the end of the day the problem is not the FCC or Bush or red states or fundamentalists.  The problem is the first-amendment defying concept that the Feds should have any say in media content.  Period.  The FCC is actually in a difficult spot - by law, they have to enforce decency standards, but when they do so, they look like moralistic thugs.

I do not know the history here, but for some reason the US government, perhaps because it was in the throws of the socialist/fascist New Deal era, abandoned all of its traditional and successful models for allocating a newly discovered or accessible resource (in this case, parts of the spectrum) in favor of this public service liscencing approach.  I can think of at least three different models that the US government has used in similar circumstances and that have all worked much better:

• The Homestead Act:  This established the principal of being the first to stake out and improve a resource (in this case parcels of land) in allocating government lands in the west.  Perhaps the best piece of legislation in the history of the country.    Could have easily followed this principle in the broadcast spectrum - an individual or company would have to broadcast continuously on a certain frequency for 2 years to gain permanent ownership
• Mining Law: In some ways similar to the Homestead act, again it grants ownership of a resource to people who add value to it (in the case of mining, to the people who prospected for it and discovered it).
• Outright Sales:  The government does this all the time, including land sales, mineral lease sales (e.g. offshore oil) and more recently cell phone spectrum sales.

Lets end this regulatory structure now:

1. Grant all current licensees ownership of the spectrum they are currently using.  Drop all content-related regulation. 
2. There are many non-licensed outlaw low-power stations operating.  Create a set of homestead requirements that they can get access to their bandwidth if they meet certain requirements within a certain time frame
3. Acknowledge that technology today allows more of the spectrum to be used than channel spacing of the 1950's allowed.  Open up more of the holes in the spectrum for use.
4. Sell the newly available spectrum

For years, any of the network news programs would love to have been referred to as the "Cadillac" network, implying high-class quality in a similar way that the "Tiffany" Network always did.

However, it appears that NBC, ABC, and CBS news have something else in common with Buick, Cadillac and Lincoln:  Their customers base is aging. Rapidly.

The median age of the average Buick owner is 67, for Cadillac is 65 and Lincoln is 63.  Excepting Escalades and Navigators, when was the last time you saw anyone in one of these cards who did not have gray hair (and perhaps a handicapped tag)?  This aging has the auto makers panicked.  Unless it is reversed, in 20 years these brands will be history.

It turns out that the network news programs have exactly the same problem, though none of them profess to be worried, despite the fact that the networks are losing share to competitors at a much faster clip than are US auto makers.  Journalism.org reports that the median age of an ABC News viewer is about 59, of an NBC News viewer is 60 and of a CBS News viewer is over 61.  Everyone who is younger has switched to cable, switched to the Internet, or switched off altogether.

In some sense, the network news problem is worse than the auto makers'.  If the auto makers can find compelling new designs to appeal to younger folks, younger buyers will come back - the brands are tarnished, but the basic business model is OK.  In the case of the networks, not only are their brands tarnished, but it is not clear that the business model of 30 minute evening news broadcasts can ever be revived in the face of a huge proliferation in news sources.

But, it is still entertaining to see who will replace the current anchors, the single best tool the networks have to reposition their broadcasts.  I wrote about Dan Rather's potential replacements here.

UPDATE:

What is it about the previous generations and the number 3?  Three big networks, three major automakers, Avis-Hertz-National, McDonalds-Burger King-Wendy's, etc.  Has there been a technology change to break up these oligarchies and provide more choices, or was there an inability by a couple of generations overwhelmed with change to digest more than 3 choices?  Update to the Update:  Virginia Postrel actually has a related post here about choice.

I know this will come as a shock to many people, but grand jury testimony is supposed to be secret and stay that way.  I mention this, because lately, "sealed" and secret court records seem to inevitably end up in the media.  The most prominent example is yesterday's leak of Balco grand jury testimony, though the Clinton-related grand juries seemed to be sieves as well.

There are real reasons for secrecy in grand jury proceedings.  The most obvious is that grand juries have often been used to build cases against organized crime figures, and those testifying may be risking their life to do so.  More recently, with the enormous power of the press to convict people even before they go to trial, sealed testimony can help protect reputations as well as the presumption of innocence.

Now, I am not a lawyer, and I would love to hear what Volokh has to say.  I suspect there are those who would argue, as they did in the (admittedly different) case of the release of Jack Ryan's divorce records, that transparency in the legal system is more important than individual privacy.  This may or may not be true legally, but I think it would hurt the grand jury process, and anyway, I don't think this is what happened here - the Balco testimony looks to have been leaked illegally.  By the way, I am tired of the notion that journalistic privilege stemming from the first amendment trumps legal compliance with any other laws.  I know the press loves having this, sortof like the double-O license to kill, but I don't buy it.

UPDATE#1

Hey, maybe I can be a lawyer.  Here is Eugene Volokh talking about journalistic privilege today!

UPDATE#2

I forgot to mention that there is an exception to secrecy - the witness may publicly discuss their own testimony.  Again, however, I do not think this is the case here.  I don't think Giambi released these details about his own testimony, and the format of the article - with both sides of the Q&A, is pretty clearly from the transcript of the hearings.  Besides, if Giambi were going to voluntarily go public with this admission, he is much more likely to get paid $10 million to tell it to Barbara Walters than he is to anonymously leak it to the SF Chronicle.

OK, Uncle Walter no longer does much for CBS other than act as their sort of hood ornament, but his statement on Larry King, via Drudge, is even wackier than Dan Rather:

Former CBSNEWS anchorman Walter Cronkite believes Bush adviser Karl Rove is possibly behind the new Bin Laden tape.

Cronkite made the startling comments late Friday during an interview on CNN.

Somewhat smiling, Cronkite said he is "inclined to think that Karl Rove, the political manager at the White House, who is a very clever man, he probably set up bin Laden to this thing."

Um, right. I am sure Bin Laden is sitting in his spider hole waiting to do everything the Bush Administration asks him to do. And, if Bin Laden is in custody, why would Bush use that fact only to generate this tape, and not just trumpet to the world that the US has, in fact, captured Bin Laden, which would have far more impact. It is incredible to see Cronkite saying things that Michael Moore might even think twice about. And, to have Larry King just let it slide - no followup question or anything, as if Cronkite's statement was the most natural and obvious thing in the world.

UPDATE:

It was pretty funny to watch Dan Rather last night during the election coverage. Brokaw at the end of the evening looked like he was going to cry, but Dan really lost it a couple of times. He really lost all pretense to objectivity. I wish I had a transcript. It would be hilarious to put up a montage of video clips from network anchors from 7PM EST (when exit polls were signaling a big Kerry win) and midnight when it was pretty clear Bush would win. I know the differences in body language and demeanor would be startling, and would go well beyond what is explainable just from being tired.