tag:theconversation.com,2011:/us/topics/sinclair-broadcasting-51992/articlesSinclair Broadcasting – The Conversation2018-04-05T10:57:09Ztag:theconversation.com,2011:article/943922018-04-05T10:57:09Z2018-04-05T10:57:09ZAmerican broadcasting has always been closely intertwined with American politics<figure><img src="https://images.theconversation.com/files/213288/original/file-20180404-189804-u1ho88.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Louisiana's populist politician Huey Long, giving an address on CBS Radio in 1934</span> <span class="attribution"><span class="source">Louisiana State University</span>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>Local television viewers around the United States <a href="https://theconcourse.deadspin.com/how-americas-largest-local-tv-owner-turned-its-news-anc-1824233490">were recently alerted</a> to a <a href="https://thinkprogress.org/sinclair-forces-reporters-to-read-script-about-fake-news-63ae6fcea30e/">“troubling trend” that’s “extremely dangerous to democracy.”</a></p>
<p>Sinclair Broadcast Group, one of America’s <a href="http://www.wbur.org/hereandnow/2017/10/26/fcc-sinclair-tribune">dominant television station owners</a>, commanded its anchors to deliver a scripted commentary, warning audiences about “one sided news stories plaguing our country” and media outlets that publish “fake stories … that just aren’t true.”</p>
<p>This might sound like a media literacy lesson, offered in the public interest. But the invocation of “biased and false news” so closely echoes charges from the Trump administration that <a href="https://www.vox.com/policy-and-politics/2018/4/2/17189302/sinclair-broadcast-fake-news-biased-trump-viral-video">many observers cried foul</a>. </p>
<p>Sinclair’s record of broadcasting news content favorable to the Trump administration, including mandated program segments such as the “<a href="http://www.newscaststudio.com/2015/11/19/sinclair-creates-terrorism-alert-desk/">Terrorism Alert Desk</a>,” and “<a href="https://www.facebook.com/BottomLineWithBoris/">Bottom Line with Boris</a>,” with former Trump administration official Boris Epshteyn, provides additional evidence of partisan bias. </p>
<p>So, is it time, as some <a href="https://www.nytimes.com/2018/04/03/opinion/trump-sinclair-tribune-america.html">commentators are suggesting</a>, to restore the Fairness Doctrine, which used to require broadcasters “to present controversial issues of public importance and to do so in a manner that was fair and balanced”? That policy, adopted by the Federal Communications Commission in 1949, was repealed in 1987. It supposedly sustained responsible political debate on the nation’s airwaves until its disappearance during the Reagan administration.</p>
<p>I would argue that nostalgic calls for the restoration of a golden age of civil political discussion on America’s airwaves mistake what actually happened in those decades.</p>
<h2>Airtime for Nazis, socialists, communists</h2>
<p>Politics and broadcasting have been consistently intertwined in American history. As <a href="https://scholar.google.com/citations?user=YxTJsxoAAAAJ&hl=en">I have found</a> in my own <a href="http://journals.sagepub.com/doi/abs/10.1177/1464884910379707">research</a>, the commercial broadcasting community (including advertisers) has consistently aligned news content and commentary in ways favorable to the White House. </p>
<p>But such episodes are often conveniently forgotten. </p>
<p>As Mitchell Stephens’ <a href="https://books.google.com/books/about/The_Voice_of_America.html?id=eP-fDgAAQBAJ&printsec=frontcover&source=kp_read_button#v=onepage&q&f=false">new biography of journalist Lowell Thomas</a> recounts, and as numerous <a href="https://books.google.com/books?id=AspCnwEACAAJ&dq=Ed+Bliss+Now+The+News&hl=en&sa=X&ved=0ahUKEwjB8f345qDaAhUB64MKHd2RBwsQ6AEILDAB">earlier scholars</a> detailed, U.S. broadcast journalism originated more as subjective and biased commentary than as reportage. </p>
<p>The vast majority of 1930s radio “news” was politically slanted analysis by veteran journalists like Thomas, <a href="https://scholar.google.com/scholar?hl=en&as_sdt=0%2C5&q=H.V.+Kaltenborn+union&btnG=">H.V. Kaltenborn</a> and <a href="https://www.youtube.com/watch?v=5V7EVpYeCvg">Boake Carter</a>. Kaltenborn, for example, was notable for his anti-union commentaries. </p>
<p>The uncertain nature of early broadcast regulation, combined with pressure from organized interest groups and politicians, all made the exact parameters of political speech on American radio ambiguous in the 1930s.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/213290/original/file-20180404-189813-11ymb1q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/213290/original/file-20180404-189813-11ymb1q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=767&fit=crop&dpr=1 600w, https://images.theconversation.com/files/213290/original/file-20180404-189813-11ymb1q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=767&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/213290/original/file-20180404-189813-11ymb1q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=767&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/213290/original/file-20180404-189813-11ymb1q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=964&fit=crop&dpr=1 754w, https://images.theconversation.com/files/213290/original/file-20180404-189813-11ymb1q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=964&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/213290/original/file-20180404-189813-11ymb1q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=964&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Ninety million listeners tuned in and heard Father Charles Coughlin, known as the ‘Radio Priest’ of the Depression, defend fascists and attack Jews and communists.</span>
<span class="attribution"><span class="source">Library of Congress</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>So the networks lent their microphones to a wide range of views from the quasi-fascists like <a href="https://www.britannica.com/biography/Charles-E-Coughlin">Father Charles Coughlin</a> (the “Radio Priest”), to homespun socialists like <a href="https://www.senate.gov/artandhistory/history/common/generic/Speeches_Long_EveryManKing.htm">Huey Long</a> and union leaders like the American Federation of Labor’s <a href="https://star1.loc.gov/cgi-bin/starfinder/4065/sonic.txt">William Green</a>. As <a href="https://books.google.com/books?id=haWh203m7aIC&printsec=frontcover&dq=Douglas+Craig+Fireside+Politics&hl=en&sa=X&ved=0ahUKEwjpi8qv56DaAhVLyYMKHfYjB-cQ6AEIJzAA#v=onepage&q=Douglas%20Craig%20Fireside%20Politics&f=false">Douglas Craig</a>, <a href="https://books.google.com/books?id=Uy6lWnBcjNYC&printsec=frontcover&dq=David+Goodman+Radio%27s+Civic+Ambition&hl=en&sa=X&ved=0ahUKEwjOoNO_56DaAhXE44MKHZr5AJkQ6AEIJzAA#v=onepage&q=David%20Goodman%20Radio's%20Civic%20Ambition&f=false">David Goodman</a> and numerous other scholars have pointed out, political broadcasting in the 1930s was vibrant, fertile and diverse to an extent unmatched to the present day. </p>
<p>For example: In 1936, both CBS and NBC aired <a href="https://books.google.com/books/about/Six_Minutes_in_Berlin.html?id=_xB7DQAAQBAJ">Nazi propaganda from the Berlin Olympic Games</a>. They also <a href="https://star1.loc.gov/cgi-bin/starfinder/4065/sonic.txt">broadcast live from the Communist Party</a> of the United States of America nominating convention. Programs like “University of Chicago Roundtable,” and “America’s Town Meeting of the Air” aired provocative political discussion that engaged and educated American audiences by exposing them to diverse viewpoints.</p>
<h2>Airwaves rein themselves in</h2>
<p>But as war neared, U.S. political broadcasting narrowed its range. </p>
<p>The Roosevelt administration began to carefully police the airwaves. CBS’ highly rated news commentator, Boake Carter, had often criticized President Roosevelt’s policies. But when he <a href="https://books.google.com/books?id=lAdv3youHkYC&pg=PA89&dq=%22Now+the+News%22+%22Boake+Carter,+who+had+said+that+Anschluss+might+right%22&hl=en&sa=X&ved=0ahUKEwjwssuZwZ_aAhUmyoMKHVlIDboQ6AEIJzAA#v=onepage&q=%22Now%20the%20News%22%20%22Boake%20Carter%2C%20who%20had%20said%20that%20Anschluss%20might%20right%22&f=false">applauded the Anschluss,</a> Germany’s annexation of Austria in 1938, and expressed admiration for Nazi policies, the White House acted. </p>
<p>As <a href="https://www.tandfonline.com/doi/abs/10.1080/01439688200260131?journalCode=chjf20">media historian David Culbert revealed</a>, Roosevelt’s adviser Stephen T. Early secretly contacted CBS and Carter’s sponsor, General Foods, to silence Carter. Despite high ratings and a popular following, Carter’s CBS contract was not renewed. Within weeks he was gone.</p>
<p>Broadcasting’s self-censorship under government pressure expanded at the start of World War II. Circumscribing critical analysis and channeling commentary to the political center pleased advertisers and politicians.</p>
<p>With the assistance of such broadcasting pioneers as Edward R. Murrow, subjective radio news commentary morphed into the type of observational reporting now identified as broadcast journalism. </p>
<p>The most famous example of this shift occurred in 1943. That year Cecil Brown, CBS’s top-rated news analyst and author of the best-selling “Suez to Singapore,” <a href="https://search.proquest.com/openview/ba015a60e32458dbb27cd3f65757c767/1?pq-origsite=gscholar&cbl=1821075">dared to criticize the war effort</a> he witnessed on the American homefront. Brown was fired, and <a href="https://books.google.com/books/about/Cecil_Brown.html?id=_u02DwAAQBAJ&printsec=frontcover&source=kp_read_button#v=onepage&q&f=false">his dismissal proved a warning</a> to every other broadcast commentator. </p>
<p>Not everyone was happy with the neutering of news and opinion on American airwaves. In response to the Brown firing, FCC Chair James Lawrence Fly criticized what he considered corporate censorship. </p>
<p>“It’s a little strange,” <a href="https://archive.org/stream/americanjournali14amer/americanjournali14amer_djvu.txt">Fly told the press</a>, “to reach the conclusion that all Americans are to enjoy free speech except radio commentators.”</p>
<p>But removing partisan politics from broadcast journalism <a href="https://books.google.com/books?id=Zb-j6Pwcvq8C&printsec=frontcover&dq=%22Susan+Douglas%22+%22Listening+In%22&hl=en&sa=X&ved=0ahUKEwiwyvGakaHaAhUHxoMKHbg3CmYQ6AEIJzAA#v=onepage&q=%22By%201943%22&f=false">increased advertising revenue</a> and <a href="https://www.tandfonline.com/doi/abs/10.1080/08821127.2007.10678081">proved remarkably lucrative</a> for U.S. broadcasters during World War II. </p>
<p>With the lesson learned, and with the support of the advertising community, America’s broadcasters aimed to address only the “<a href="https://books.google.com/books/about/The_vital_center.html?id=7ttPAQAAIAAJ">vital center</a>” of American politics in the postwar years. </p>
<h2>Still, politics persisted</h2>
<p>It would, however, be a mistake to believe that the Fairness Doctrine silenced fractious political discourse on the American airwaves. </p>
<p>Throughout the decades that the Fairness Doctrine remained official policy, controversial political broadcasts aired regularly on American television and radio. There was <a href="https://www.smithsonianmag.com/history/joe-pyne-first-shock-jock-180963237/">Joe Pyne</a>, whose show at its zenith in the 1960s attracted a reported 10 million viewers. Pyne insulted the hippies, Klansmen and civil rights activists he invited to his studio. Though the show is recalled today more for its outrageousness, it was a political show and Pyne propagated a conservative, law-and-order, patriotic message. </p>
<p>Then there’s Bob Grant, who broadcast a popular radio show in New York City throughout the 1970s. Grant’s “arch disdain for liberals, prominent black people, welfare recipients, feminists, gay people, and anyone who disagreed with him,” <a href="https://www.nytimes.com/2014/01/03/nyregion/bob-grant-a-pioneer-of-right-wing-talk-radio-dies-at-84.html">wrote The New York Times</a>, “was familiar to his listeners.” </p>
<p>Nationally syndicated programs like “Donohue” offered liberal perspectives, and even the “CBS Evening News” brought back commentary, with veteran journalist <a href="http://www.museum.tv/eotv/sevareideri.htm">Eric Sevareid</a> providing perspective on the daily news each weeknight.</p>
<p>I’m not equating the well-reasoned, often brilliant political commentary offered by Eric Sevareid to Sinclair Broadcast Group’s transparent political advocacy. Sevareid reached a much larger percentage of the American populace than all the Sinclair newscasts combined, and he was therefore far more influential. </p>
<p>But to express surprise that Sinclair now shapes news content and commentary to be more hospitable to political advertising, and more supportive of the current administration, ignores the fact that political commentary has always sold well in the American commercial system. </p>
<p>I believe Sinclair’s management has identified an underutilized segment of the local TV news advertising market – the pro-Trump segment – as the 2018 midterm elections approach. The broadcaster is now shaping its news products to more effectively appeal to the audience for the political advertisements it seeks to sell this fall. </p>
<p>This economic interest closely aligns with Sinclair’s current political and regulatory imperatives. It makes the propagating of biased news content even more effective from Sinclair’s perspective. </p>
<p>Sinclair clearly hopes that the political consultants who purchase campaign ads, and the federal regulators who must <a href="https://www.cnet.com/news/sinclair-media-awaiting-massive-broadcast-merger-gets-trump-defense/">approve their planned purchase</a> of Tribune Broadcasting’s 42 stations, will appreciate their recent media literacy efforts.</p><img src="https://counter.theconversation.com/content/94392/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael J. Socolow does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Sinclair network anchors decrying ‘fake stories’ have been condemned for giving biased support to President Trump. But nostalgic calls to restore civil political discussion on the air ignore history.Michael J. Socolow, Associate professor, communication and journalism, University of MaineLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/944792018-04-05T10:46:49Z2018-04-05T10:46:49ZSinclair-style employment contracts that require payment for quitting are very uncommon. Here’s why<figure><img src="https://images.theconversation.com/files/213305/original/file-20180404-189813-1dzgni5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Sinclair's employment contracts are kind of like a toll road. You have to pay to leave.</span> <span class="attribution"><span class="source">oriontrail/Shutterstock.com</span></span></figcaption></figure><p>Sinclair Broadcast Group, a company that owns local news stations across the country, is itself in the news for <a href="https://theconcourse.deadspin.com/how-americas-largest-local-tv-owner-turned-its-news-anc-1824233490">requiring its newscasters</a> to read a script about “one-sided news stories plaguing our country.” </p>
<p>While that kind of top-down editorial order might prompt some journalists to quit for ethical reasons, <a href="https://www.bloomberg.com/news/articles/2018-04-03/sinclair-employees-say-their-contracts-make-it-too-expensive-to-quit">some Sinclair</a> employees have said that their employment contracts made it <a href="http://www.latimes.com/business/hollywood/la-fi-ct-sinclair-contracts-20180403-story.html">prohibitively expensive</a> to walk away. And not just in usual the “I’m making too much money and don’t want to adjust my lifestyle” kind of way. Instead, their contracts actually force them to pay Sinclair a huge fine if they quit. </p>
<p>Can that possibly even be legal? </p>
<p>Before becoming an academic, I represented companies in employment law matters, which often involved advising on employment contracts. A Los Angeles Times journalist <a href="https://twitter.com/mattdpearce/status/980850915623108609">posted</a> an excerpt of a contract that he claims to have received from a Sinclair employee. After reviewing it, I agree with <a href="https://www.bloomberg.com/news/articles/2018-04-03/sinclair-employees-say-their-contracts-make-it-too-expensive-to-quit">other attorneys who noted</a> that the legality of the provision depends on whether the fine is similar to the costs Sinclair would incur if the employee leaves prematurely. </p>
<p>The more interesting question to me, however, is why more employers don’t try to do the same thing.</p>
<h2>Guaranteed work</h2>
<p>One reason is that the supposed Sinclair contract provided for a special perk: guaranteed employment for a fixed period of time. In exchange, the employee agreed to work for Sinclair for that period. </p>
<p>This is highly unusual. The default rule in American law is “at will” employment, meaning an employee can be fired (or quit) at any time, for any reason, without notice. If the contract allows you to quit at any time, you haven’t breached the contract by quitting. Without a breach, there’s no legal basis for the company to demand payment.</p>
<p>Companies are generally very reluctant to offer anyone – <a href="https://www.sec.gov/Archives/edgar/data/1324245/000119312511234342/dex1021.htm">even CEOs</a> – a fixed period of employment because they are always worried that business conditions might change – and so too their sentiments about the employee’s value to the company.</p>
<p>However, in rare situations involving creative talent such as TV anchors or radio hosts, companies will sometimes make these promises to individuals whose departure would be really bad for business. For example, if a recognizable news anchor and local celebrity decided to quit and, say, start a YouTube channel criticizing their former employer in the middle of ratings, that’d be bad news.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/213307/original/file-20180404-95689-t89q1g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/213307/original/file-20180404-95689-t89q1g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=420&fit=crop&dpr=1 600w, https://images.theconversation.com/files/213307/original/file-20180404-95689-t89q1g.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=420&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/213307/original/file-20180404-95689-t89q1g.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=420&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/213307/original/file-20180404-95689-t89q1g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=528&fit=crop&dpr=1 754w, https://images.theconversation.com/files/213307/original/file-20180404-95689-t89q1g.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=528&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/213307/original/file-20180404-95689-t89q1g.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=528&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">‘Golden handcuffs’ are a more traditional way to get employees to stick around.</span>
<span class="attribution"><span class="source">Inozemtsev Konstantin/Shutterstock.com</span></span>
</figcaption>
</figure>
<h2>‘Won’t you stay … ’</h2>
<p>But companies have only limited tools at their disposal to force employees to stay if they break their promise to complete the term of employment. Courts <a href="https://scholar.google.com/scholar_case?case=10568205195362534065">won’t issue an order</a> telling an employee he or she must stay at a particular job because the <a href="https://www.law.cornell.edu/constitution/amendmentxiii">13th Amendment</a> prohibits involuntary servitude. </p>
<p>So companies try other ways to get valuable employees to stick around. They might offer them an obscene amount of money or stock options – this is known as the “golden handcuffs” approach. Or they will include a noncompete clause that makes it harder for the employee to find another job without moving away or switching professions. The Sinclair contract included one of these.</p>
<p>What is unusual about the Sinclair contract is that it required an outright payment for quitting, regardless of whether the employee worked for a competitor. The contract posted on Twitter demanded a payment of 40 percent of the employee’s “annual compensation” multiplied by the percentage of the term remaining on a contract. </p>
<p>So if the employee quit halfway through the contract, he would owe 20 percent of his annual compensation. The contract included an exception if the employee provided 45 days of notice and quit for a “permitted reason,” but the excerpt provided did not specify what that meant.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/213306/original/file-20180404-189827-3pftz3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/213306/original/file-20180404-189827-3pftz3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=467&fit=crop&dpr=1 600w, https://images.theconversation.com/files/213306/original/file-20180404-189827-3pftz3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=467&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/213306/original/file-20180404-189827-3pftz3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=467&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/213306/original/file-20180404-189827-3pftz3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=587&fit=crop&dpr=1 754w, https://images.theconversation.com/files/213306/original/file-20180404-189827-3pftz3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=587&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/213306/original/file-20180404-189827-3pftz3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=587&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Being told to jump in a lake isn’t always meant kindly.</span>
<span class="attribution"><span class="source">Monkey Business Images/Shutterstock.com</span></span>
</figcaption>
</figure>
<h2>‘Go jump in a lake’</h2>
<p>There are a lot of reasons why demanding payment for quitting is very uncommon. For starters, employees valuable enough to be offered a term contract might not respond favorably. It’s like inviting someone to an expensive dinner and then threatening to steal her wallet if she has a bad time and decides to leave early. Not exactly an enticing offer.</p>
<p>Most employers also know intuitively that penalties are simply bad PR. And that demanding various payments from employees after they’ve left is chasing good money after bad. The litigation cost of recovering the money is almost always <a href="https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&ved=0ahUKEwi8sdqmyaHaAhWCFXwKHTICD5EQFggzMAI&url=http%3A%2F%2Fwww.courtstatistics.org%2F%7E%2Fmedia%2Fmicrosites%2Ffiles%2Fcsp%2Fdata%2520pdf%2Fcsph_online2.ashx&usg=AOvVaw3AkEdCO1fMjk5tV-Xj5HmY">more</a> than the amount of money at issue.</p>
<p>Nevertheless, Sinclair has in fact <a href="https://www.orlandoweekly.com/Blogs/archives/2018/04/03/a-former-sinclair-employee-in-florida-is-being-sued-by-the-company-for-quitting">sued</a> a former anchor who quit, requesting US$5,700 in damages and other costs. That was less than the $25,000 the company initially demanded, but still too much for the man to bear.</p>
<p>Sinclair eventually appeared to realize this was a mistake and offered to settle with the former employee for $1,700 in exchange for a gag order. But by that point the reporter was so fed up that he <a href="http://www.latimes.com/business/hollywood/la-fi-ct-sinclair-contracts-20180403-story.html">told them</a> to “go jump in a lake” and has since shared his story with many news outlets. </p>
<p>I suspect the next up-and-coming news anchor will say the same thing if Sinclair offers a similar contract.</p><img src="https://counter.theconversation.com/content/94479/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Elizabeth C. Tippett does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A purported contract between Sinclair and an anchor demanded a huge penalty if the employee quit. While many asked if that’s legal, a more interesting question is why more companies don’t do the same thing.Elizabeth C. Tippett, Associate Professor, School of Law, University of OregonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/944072018-04-05T05:19:09Z2018-04-05T05:19:09ZOutlawing fake news will chill the real news<figure><img src="https://images.theconversation.com/files/213343/original/file-20180405-189827-fffhkh.png?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The largest television company in the US recently issued a coordinated campaign of scripted warnings about fake news.</span> <span class="attribution"><a class="source" href="https://www.youtube.com/watch?v=xwA4k0E51Oo">Screen Shot at 2PM</a></span></figcaption></figure><p>The term “fake news” has gained prominence in recent years thanks to US President Donald Trump’s attacks against the media during the 2016 US election. In 2017, it was one of Collins Dictionary’s <a href="https://www.telegraph.co.uk/news/2017/11/02/cuffing-season-corbynmania-named-words-year-collins-dictionary/">2017 words of the year</a>. </p>
<p>Unsurprisingly, politicians use the fake news label to discredit media stories that portray them in a negative light. And it’s back in the headlines after the largest television company in the US – Sinclair Broadcasting Group – issued a coordinated campaign of <a href="https://www.youtube.com/watch?v=T50pLTvwO80">scripted warnings about fake news</a> in terms that echo Trump’s sentiments:</p>
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<p>The sharing of biased and false news has become all too common on social media … Some members of the media use their platforms to push their own personal bias … This is extremely dangerous to our democracy.</p>
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<p>Trump tweeted in support of Sinclair’s message, slamming the mainstream media in the process.</p>
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<p>Meanwhile, a new study suggests that actual fake news may <a href="https://www.thestar.com/news/world/2018/04/03/fake-news-might-have-won-donald-trump-the-2016-election-study-says.html">have helped Trump to secure the election</a>. Ohio State University researchers <a href="https://cpb-us-west-2-juc1ugur1qwqqqo4.stackpathdns.com/u.osu.edu/dist/d/12059/files/2015/03/Fake-News-Piece-for-The-Conversation-with-methodological-appendix-11d0ni9.pdf">found</a> a high statistical association between belief in fake news items and voting in 2016. </p>
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Read more:
<a href="https://theconversation.com/in-italy-fake-news-helps-populists-and-far-right-triumph-92271">In Italy, fake news helps populists and far-right triumph</a>
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<p>Whatever the impact of fake news on election outcomes, some governments are introducing legislation to control the problem. But these laws are more likely to limit free speech, chill the real news, and create unintended consequences.</p>
<h2>Public trust in media is low</h2>
<p>Trump and other politicians’ attacks mirror widely held suspicions about the media. A recent <a href="https://www.monmouth.edu/polling-institute/reports/monmouthpoll_us_040218/">poll</a> by Monmouth University showed that more than 77% of Americans believed that mainstream media reports fake news. One in three believed this happened regularly, whereas 46% thought it only happened occasionally. </p>
<p>Fake news was defined broadly: 25% thought it referred to wrong facts, whereas 65% believed it also covered editorial decisions and news coverage. 87% of Americans thought interest groups plant fake news on platforms such as Facebook and YouTube. Of concern, 42% believed media reported fake news to push an agenda, and 35% trusted Trump more than CNN. </p>
<p>Australians also have low confidence in the media. According to the <a href="http://cms.edelman.com/sites/default/files/2018-02/2018_Edelman_Trust_Barometer_Global_Report_FEB.pdf">2018 Edelman Trust Barometer</a>, just 32% trust the media – the second lowest score out of the 28 countries surveyed.</p>
<h2>New laws take aim at fake news</h2>
<p>The congruence of public distrust and politicians’ self-interest has reached an obvious denouement: legislation. </p>
<p>The most egregious of these laws was just passed by the Malaysian Parliament’s Lower House. The <a href="https://drive.google.com/file/d/1H5fVRJJ46E5YXzvtnWNsxHlOqaSq0nYZ/view">Anti-Fake News Act 2018</a>, which imposes jail terms of up to six years, will become an Act after Senate approval. The law defines fake news broadly to include:</p>
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<p>…any news, information, data and reports, which is or are wholly or partly false, whether in the form of features, visuals or audio recordings or in any other form capable of suggesting words or ideas. </p>
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<p>The law is particularly dangerous because it has extra-territorial application – foreigners can be dealt with “as if the offence was committed” within Malaysia. In other words, it is not just Malaysian journalists who could be locked up – foreign media can also be locked up if Malaysian law enforcement can reach them.</p>
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Read more:
<a href="https://theconversation.com/why-are-sinclairs-scripted-news-segments-such-a-big-deal-94365">Why are Sinclair's scripted news segments such a big deal?</a>
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<p>Malaysia is not an isolated instance. The Philippines is considering a <a href="https://www.aseanlip.com/philippines/ip/legislation/bill-of-the-antifake-news-act-of-2017/AL18286">similar law</a>. The Irish Parliament is also considering <a href="https://www.independent.ie/irish-news/politics/five-years-in-jail-for-spreading-fake-news-under-ff-proposal-36375745.html">a bill to criminalise the use of bots</a> on social media platforms to promote fake news – such as those thought to have been used by Russia to influence the US election.</p>
<p>India proposed a law that would <a href="https://www.thetimes.co.uk/article/row-over-press-freedom-forces-narendra-modi-to-drop-fake-news-law-k2l57sf3k">suspend the accreditation of journalists for fake news</a>, but retracted the order within a day due to a backlash.</p>
<h2>Problems with regulating speech</h2>
<p>It is unclear if the Malaysian law – and other national variants – is masquerading as an attempt to promote real news when it is actually an attempt at censorship by stealth. Regardless, even assuming good intentions, anti fake news laws are incapable of tackling the menace. </p>
<p>Fake news is a slippery concept. Who decides what is fake? And how do we manage the distinction between facts and opinion? There is no bright-line definition that would provide clarity, and each item has to be assessed on its own. Moreover, not all fake news is harmful – a precondition for regulation. </p>
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Read more:
<a href="https://theconversation.com/in-italy-fake-news-helps-populists-and-far-right-triumph-92271">In Italy, fake news helps populists and far-right triumph</a>
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<p>Regulation would turn judges into fact-checkers for potentially millions of news items or social media posts – an impossible task even without crowded dockets. Replacing judges with bureaucrats might improve efficiency marginally, but would generate a censorship state. </p>
<p>Buttressed with criminal penalties, these laws will chill free speech and substantially diminish the marketplace for ideas. Media outlets will be overly cautious with negative consequences for transparency and accountability. In addition, the laws are unlikely to advance the cause of real news – they have no connection to the incentives for providing truthful information.</p>
<h2>The current system is sufficient</h2>
<p>Countries committed to free speech should not adopt anti fake news laws. The current legal regime represents a pragmatic compromise. Our system of free speech tolerates the risk of inaccurate news for several reasons. </p>
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Read more:
<a href="https://theconversation.com/why-facebook-is-the-reason-fake-news-is-here-to-stay-94308">Why Facebook is the reason fake news is here to stay</a>
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<p>Firstly, it is difficult to establish intention to fabricate falsehoods and harm, and the causal link between the two. And giving the state tools to police speech is dangerous, with fear alone generating self-censorship. Also, judges and bureaucrats are not experts at separating fake from real news – public debate in the marketplace of ideas is more efficient. Finally, modern news does not stop at geographic boundaries, and national law cannot solve a transnational problem.</p>
<p>This does not mean that social media platforms should be free to spread falsehoods and compromise elections. Some options for preventing the proliferation of fake news that could crowd out real news include accreditation to distinguish legitimate news outlets, liability for search engines and distributors where actual harm and intent to fabricate can be established in private litigation, and accessible remedies for defamation. However, such regulation goes well beyond the scope of current anti fake news laws.</p><img src="https://counter.theconversation.com/content/94407/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sandeep Gopalan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The fake news label has been used by politicians to discredit unfavourable media stories. But even assuming good intentions, new laws are incapable of tackling the menace.Sandeep Gopalan, Pro Vice-Chancellor (Academic Innovation) & Professor of Law, Deakin UniversityLicensed as Creative Commons – attribution, no derivatives.