Tagged: administrative law

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FAN 40.1 (First Amendment News) Banzhaf responds to Corn-Revere on FCC Redskins Flap

Professor John Banzhaf

Professor John Banzhaf, III

In an earlier post I profiled Robert Corn-Revere’s WSJ op-ed entitled “Free-Speech Foes Call an Audible — Bringing the FCC into the ‘Redskins’ debate is an invitation for First Amendment mischief.” The op-ed was written in critical response to a petition filed by George Washington Law Professor John Banzhaf to the Federal Communications Commission concerning the use of the Washington Redskins’ name on broadcast airwaves. At the end of my blog profile I invited Professor Banzhaf to respond, which he has now done. His response is set out below.

Robert Corn-Revere apparently objects that I have asked the FCC not to renew the broadcast license of a station that repeatedly and unnecessarily broadcasts a word which has been found in several legal proceedings to be a racial slur even when applied to an NFL team – “R*dskins,” the so-called R-word, equivalent to the N-word so hateful to African Americans, and never used on the air – and is even so defined in most dictionaries. But, in an apparent attempt to prove some point, he describes at length a major life-saving step I persuaded the FCC to take, and (perhaps deliberately) overlooks several obvious points.

In 1966 I persuaded the FCC with one filing (far shorter than the one now in question, and one which many likewise called “frivolous” at the time) to apply a largely unknown and moribund principle – the “Fairness Doctrine” — to cigarette advertising. The result was that anti-smoking messages were broadcast on radio and TV for the first time — hundreds of millions of (1968) dollars worth. This caused the country’s first major drop in cigarette consumption; estimated by itself to have saved millions of lives. It also led directly to a ban on cigarettes commercials; something which saved even more lives, and hundreds of billions of dollars in health care costs. [See  Banzhaf, et al. v. Federal Communications Commission, et al. (D.C. Cir., 1968, per Bazelon, C.J.)]

imagesThose who seek to hide behind the First Amendment argued then, as Corn-Revere does now, that both moves — first forcing stations to broadcast statements against smoking, and then banning them from running cigarette commercials — violated Free Speech, but I successfully defended both decisions in court. Thus, I was able to persuade the FCC to make one of its most important and significant decisions ever — one which saved millions of lives and got rid of cigarette commercials — yet Corn-Revere criticizes the fact that the FCC granted my request, apparently because the Fairness Doctrine was later abandoned. Yet this makes as much sense as criticizing the Special Prosecutor legislation (which I also had a hand in bringing into effect) — which helped save the country from a major constitutional crisis during Watergate — because it likewise was eventually allowed to expire.

He also fails to mention another FCC filing of mine that forced the major TV stations in DC — and eventually around the country – to begin featuring African Americans as reporters and in other significant on-air positions. That one, like the one he now criticizes and seeks to belittle, was likewise based on allegations of racism. Corn-Revere also fails to note how many of my other agency petitions, likewise derided as “frivolous” and/or publicity stunts at the time, were granted and were successful: in getting women admitted, for the first time, to the Cosmos Club and to formerly all-male state-supported military academies; in restricting and ultimately banning smoking on airplanes; in changing labels on foods, birth control pills and elsewhere; in striking down various forms of sex-based price discrimination, etc.

Although Corn-Revere opines (citing no authority) that my petition has no legal basis, three former FCC commissioners (including a former Chairman), as well as almost a dozen broadcasting law superstars, have publicly stated that such broadcasts are probably illegal under current law. The current FCC Chairman has stated that my petition will be taken seriously and evaluated on its merits, something he would not have said if it were obviously “a publicity stunt, not a serious legal argument.” And other broadcast law attorneys who oppose the petition have been forced to admit that it will at the very least likely hold up the license renewals of the stations for a considerable period of time, impacting their credit ratings, their ability to sell or transfer assets, etc.

Given that at least one TV station lost its license based upon allegations of racism, and that the FCC previously ruled that racial slurs constituted “profanity” (which cannot be broadcast during prime time), the tremendous value of a station’s broadcast license, and my track record in persuading the FCC and many other agencies to take unprecedented steps in response to imaginative petitions many said had no chance of success, given all that the question is: Should stations ignore this new movement and continue to bet the farm (their FCC licenses), simply to be able to say “R*dskins” rather than “DC” or “Washington” when providing the sports scores or otherwise talking about this NFL team?

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F.F. — Make of him what you will, but . . .

Felix Frankfurter

Felix Frankfurter

I want to recommend a relatively new article in the Journal of Supreme Court History. It is impressively researched, commendably thoughtful, and refreshingly balanced. Before doing so, however, permit me to say a few prefatory words.

It is hard to be fair when writing of those with whom we disagree, and harder still when we dislike their personal manner. Arrogant, argumentative, and devious – these are not the words that fair-minded scholars like to use unless the fit is fair. All of which takes us back in time to this man: Felix Frankfurter (1882-1965).

What to make of him?

As a Supreme Court Justice he was, in Mel Urofsky’s words, “a divisive figure whose jurisprudential philosophy is all but ignored today.” Others have been even less kind in their assessment of the temperament and jurisprudence of the Justice from Vienna. While Cass Sunstein has recently labored to revive respect for Justice Frankfurter and his judicial opinions, that effort may prove Sisyphean (save, perhaps, in a few discrete areas involving federal jurisdiction).

Still, there was more to Felix Frankfurter than the life he led on the Court between 1939 and 1962. The trajectory of his career (fueled by hard work, ambition, and brilliance) is an immigrant-come-to-America success story at its best. His work – first with Louis Brandeis and then on his own – to advance the cause of fair and humane labor practices exemplifies the Progressive movement in its glory. Then there was the role he played early on in helping to launch the ACLU. With a mix of courage and insight, he later called for a retrial for Nicola Sacco and Bartolomeo Vanzetti by way of an impressive lawyer-like article he published in the Atlantic in 1927; the article was thereafter expanded into a small book. And, of course, there is more, much more, which brings me back to that article I alluded to earlier.

Sujit Raman

Sujit Raman

Sujit Raman (the chief appellate lawyer in Maryland’s U.S. Attorney’s office) has just published an engaging and highly informative article. Its title: “Felix Frankfurter and His Protégés: Re-examining the ‘Happy Hot Dogs.’” It captures Felix in all his complexity and does so with objective nuance. With skilled brevity Raman also sketches the story of the Jewish immigrant’s struggle to assimilate, the Harvard Law student’s meritocratic success, the progressive’s desire to improve government when he went to work for Henry Stimson (first in New York and then in Washington, D.C), and then the Harvard professor’s cultivation of the best and brightest, whom he invited to his Sunday teas.

Above all, Sujit Raman’s real story is about Felix Frankfurter’s “greatest legacy,” namely, the “legions of students he trained and nurtured at the Harvard Law School, . . . who, in their own right, shaped the age in which they lived.” Consistent with that objective, Frankfurter’s “avowed intent as a professor was to instill in his students an interest in public service, and from his earliest days, he began collecting recruits for his crusade.” In time, they would come to be known as Frankfurter’s “Happy Hot Dogs” as Hugh Samuel Johnson tagged them.MTE5NTU2MzE2MjE5NDc1NDY3

Could he be snobbish? Yes. Could he be petty? Yes. Spiteful? Yes. Did he delight in manipulating matters from unseen sidelines? Yes again.

Clearly, F.F. had his psychological warts. Yet, when one steps back and beholds the man and this patch of his life work at a detached distance, he stands rather tall. Why?

Now, to cut to the chase: “Frankfurter was one of the New Deal’s intellectual architects as well as one of its most accomplished draftsmen of policy – yet he had no legislative portfolio or any official position in the Roosevelt Administration.” Moreover, adds Raman, “Frankfurter was the New Deal’s principal recruiting agent. He placed his protégés in all levels of government, and consequently his vision was carried forth, albeit indirectly, by his able lieutenants.” In sum, “the New Deal was in many ways the embodiment and culmination of Frankfurter’s life work.”

James Landis

James Landis

In the span of 28 pages (buttressed by 127 scholarly endnotes), Sujit Raman fills in many of the blanks in the Professor-and-the-New-Deal story. While he is cautious not to exaggerate Frankfurter’s role and influence, Raman’s account makes it difficult to deny the remarkable magnitude of Frankfurter’s unique impact on public law and its operation at a crucial stage in our legal history.

True, the “Happy Hot Dogs” story has been told before and from a variety of perspectives (see, e.g.,  here and here). Even so, Mr. Raman does what others before him have not quite done: he tells the story in a concise yet authoritative way and with enough panache to draw the reader back in history for glimpses into the exciting world of F.F. and his adept protégés – the likes of Thomas G. Corcoran (video here), Benjamin V. CohenJames M. Landis, David Lilienthal, and Charles Wyzanski, among others. They were all part of Frankfurter’s network, all “elite lawyers” hand picked because of their ties to F.F. and their “reformist inclinations.”

Whatever your opinion of Felix Frankfurter, his star may yet brighten anew, though probably not in the universe of Supreme Court history and jurisprudence. His true galaxy was elsewhere – in that realm where the “minds of men” move the gears of government to places only once imagined in classrooms in Cambridge.

Ask your librarian for, or go online or order a copy of, Sujit Raman’s illuminating article in volume 39 (March 2014, #1, pp. 79-106)) of the Journal of Supreme Court History. Better still, join the Supreme Court Historical Society. Either way, it will serve you well.

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Teaching Administrative Law Using Current Events

One of the best parts of teaching a course you’ve already taught is updating course materials. I’m teaching Ad. Law again in the fall, and I’m considering adding a few relatively recent events as introductory discussion problems. The goal is to get students thinking about how process and agency structure shape substantive decisions. I tried to choose topics which do not require students to grasp complicated substantive issues:
1. The TSA seeks comments on across-the-board, whole body imaging for airline passengers. Here students can consider the interplay between notice-and-comment procedure and privacy objections to the imaging. I’ll also explore whether procedures (and concerns with use of imaging) should be different if TSA employees require this enhanced screening only on a case-by-case basis.
2. The IRS has been accused of unfairly targeting conservative groups who claim tax-exempt status. The issue highlights agency structure and raises questions of accountability in a system with multiple bureaucratic decision-makers. It also illuminates the tension between law and politics in agency decision-making, especially where agencies operate under vague rules such as the “social welfare” organization exemption.
I welcome any suggestions you may have.