Judge Gags Rudy and Rupert
McMenamin, Michael, Reason
First Amendment mugged!
The First Amendment doesn't need friends like Ted Turner and Time Warner. In case you missed it, New Yorkers last fall had more than the Yankees to entertain them. They also had the spectacle of media titans Turner and Time Warner (which now owns Turner's CNN) squaring off against Rupert Murdoch's News Corporation and its new, 24-hour Fox News Channel. The dispute: Fox News's access to a channel on Time Warner's cable monopoly, which covers 1.1 million of New York's 1.6 million cable subscribers. That battle was many things to many people.
A spectacle? Sure. What else could you call Ted Turner's comparing the two competitors of CNN - Fox News Channel and MSNBC - to the Nazis and Japanese in World War II ("you die in one concentration camp as fast as another"); calling Murdoch a "scumbag" and a "pretty slimy character"; repeatedly comparing Murdoch to Hitler; and accusing Murdoch of having "bought the government of New York [city]"? While Murdoch didn't respond in kind - he never does - his New York Post did suggest that either Turner was "veering dangerously toward insanity" or he had "come off the medication he takes to fight his manic depression."
A major business dispute? You bet. Especially when Time Warner, after its acquisition of Turner Broadcasting, allegedly backed out of an agreement to carry the new Fox News service upon Ted Turner's objection.
An antitrust matter? Absolutely. The only monopolies that exist today are those which governments provide, including Time Warner's cable operations in New York City. And the courts say there are things a normal business can do with impunity - like refusing to do business with a competitor of one of its subsidiaries - that a monopolist cannot. That's why Fox sued Time Warner in federal court. That's why New York Attorney General Dennis Vacco opened an antitrust investigation of Time Warner.
A case of political intrigue? Positively. After Time Warner changed its mind about Fox, New York Mayor Rudolph Giuliani joined sides with Fox. He proposed that Time Warner find room for Fox News by moving the History Channel or the Discovery Channel to one of the city's PEG (public, educational, governmental) cable channels, which it controls through its franchise agreements with Time Warner. Time Warner declined, and the mayor decided to run Fox News itself on a city-owned PEG channel. To avoid allegations of favoritism, the city also agreed to carry another news channel shut out by Time Warner, the Bloomberg News Service, which runs business news. Despite this, the mayor's political opponents accused him of a payoff to Murdoch, whose New York Post supported Giuliani's mayoral candidacy. Even Turner's wife, Jane Fonda, joined the fray, accusing Giuliani of catering to Murdoch because Fox Channel 5 employs the mayor's wife as a $31,000-a-year reporter.
An unprecedented assault on Time Warner's First Amendment rights? I don't think so. Richard Aurelio, a longtime New York politician and now president of Time Warner's cable subsidiary, claimed it was "the most frightening exercise of political power that I have seen in my career, and I have been in politics and government for 40 years." Maybe it was, or maybe Aurelio is easily frightened. But the only assault on the First Amendment was Time Warner's lawsuit against the city in federal court, where it persuaded Judge Denise Cote, a recent Clinton appointee inexperienced in First Amendment law, to issue an unprecedented - and undoubtedly unconstitutional - prior restraint order against the city's carrying Fox News or Bloomberg News on one of its PEG channels. She later converted the temporary order to an injunction. To true friends of the First Amendment, that is really frightening.
That's where it stands as this article is written. But it won't end there. It will end in one way only: Fox News will be carried on cable in New York. The only questions are when and how. …