Apparently, it’s not enough for Barack the Bully to have the Washington Post, the New York Times, the L.A. Times Jake Tapper, Annenberg Political (humorously known as “Factcheck.org”) and every other mainstream media outlet in its pocket. No, that’s not good enough; you got to stop the paid ads, too. What good would Pravda or Neues Deutschland have been if they ran paid editorials from dissidents? [That's a pretty crappy analogy, Xrlq. Everyone knows the commie governments of the USSR and the GDR had full control of their economies to an extent Obama can only dream of, so even if some dissident were ballsy enough to submit an ad like that to a state-run newspaper, where was he going to find the money to pay for it in the first place? -Ed. Shut up. -Not Ed.] Enter Robert F. Bauer, the scum attorney serving as General Counsel to another scum attorney currently seeking the Presidency. On Tuesday, Scum Attorney #1 sent a cease and desist letter on behalf of Scum Attorney #2 to a number of TV and radio stations suspected of running a hard-hitting – but absolutely truthful – advertisement by the National Rifle Association (links added by me):
Dear Station Manager:
As General Counsel to Obama for America, I write about an advertisement sponsored by the national Rifle Association (“NRA”) that may be airing on your station. The text of the advertisement, and a thorough explanation of its falsity, is attached.
Looky here. Apart from his inapt use of “thorough” to mean “selective” and “falsity” to mean “inconvenience,” he got the whole first paragraph right! The letter really was sent to station managers, Bauer really is General Counsel to the Obama campaign, the letter really is about an ad sponsored by the NRA, and the text of that ad really was attached to it. By Democrat standards, well done!
This advertisement knowingly misleads your viewing audience about Senator Obama’s position on the Second Amendment. In an article published today, the Washington Post fact-checks this advertisement and awards it three “Pinocchios,” meaning: “Significant factual error and/or obvious contradictions.”
Translation: one news organization that is every bit as rabid in its opposition to gun rights as Barack Obama is, has said the ad wasn’t true, therefore, it must not have been true, and no other news organization should even consider the possibility that it might be. Of course, let’s not go overboard or anything. We don’t want you to shut down all ads that get three or more Pinocchios, just the ones that make our side look bad.
For the sake of both FCC licensing requirements and the public interest, your station should refuse to continue to air this advertisement.
Translation: I’m not stupid enough to say that I’ll kill you if you don’t do as I say. Instead, let’s just say that it would be a real shame if someone were to do it. We all know the current President would never do anything like that, but who’s to say who might be President in the future?
The unarguable falsities in this advertisement include the following:
Of course, as the Journal of Irreproducible Results (now known as Annals of Improbable Research) demonstrated, the -able/ible can refer either to that which cannot be done, or to that which should not be done. In this case, it’s pretty clear which one the B.O. campaign is talking about. Of course the facts of Obama’s record on guns can be argued, at least for now. Just don’t, dammit, or else.
- The NRA advertisement falsely claims that “Barack Obama supports a huge new tax on my guns and ammo.” Note that the NRA is claiming that Obama, in the midst of his presidential campaign, supports such a tax. In fact, Senator Obama has no policy to raise taxes on firearms or ammunition. The Washington Post found this article to be based on “very flimsy evidence.”
Of course the ad said nothing about what positions Obama advanced “in the midst of his Presidential campaign.” Bauer simply made that part up, as if to suggest that Obama’s past record is completely irrelevant to what he would do as President.
- The NRA advertisement falsely claims that Senator Obama “voted to ban virtually all deer hunting ammunition.” This claim is based on Senator Obama’s vote for the Kennedy Amendment, which would have expanded the definition of armor-piercing ammunition. As the Washington Post noted, Senator Kennedy – the author of the amendment in question – explained that it “will not apply to ammunition that is now routinely used in hunting rifles or other centerfire rifles.” Factcheck.org unequivocally labeled the NRA’s claim “false.”
So the author of the bill lied about its scope. What else is new? As for “Factcheck.org,” a humorous reference to Annenberg Political, let’s just say if the names “Annenberg” and “Obama” sets off any bells, it’s purely a coincidence.
- the NRA advertisement falsely claims that Senator Obama “supports a ban on the shotguns and rifles most of us use for hunting.” The source of this claim is the debate between Senator Obama and Alan Keyes on October 21, 2004; the full text of Senator Obama’s remark on the subject is attached. In it, Senator Obama voiced his support for the federal assault weapons ban, which was in place from 1994 to 2004. This bill banned only the most vicious types of assault weapons, not the “shotguns and rifles most of us use for hunting,” as any hunter who purchased a rifle or shotgun in that ten-year period can attest. And in that same debate exchanged, Senator Obama made clear that he only opposed firearms that were irrelevant for hunting unless the deer were “wearing bullet-proof vests.”
All deer wear bullet-proof vests. As for the “vicious” guns banned as “assault” weapons, let’s just say that Obama was not an author of the federal ban in question, which predated his political career. He was, however, a sponsor of a more recent, much broader bill that would have labeled just about anything an “assault” weapon.
Unlike federal candidates, independent political organizations do not have a “right to command the use of broadcast facilities.” See CBS v. DNC, 412 U.S. 94, 113 (1973).
Last time I checked, federal candidates don’t have that power, either; only sitting Presidents do, and then only if they have “Chavez” or “Hussein” in their names. Caveat elector.
Because you need not air this advertisement, your station bears responsibility for its content when you do grant access. See Felix v. Westinghouse Radio Stations, 186 F.2d 1, 6 (3rd Cir.), cert denied, 314 U.S. 909 (1950).
Arguments like this one are commonly referred to by my powdered-wig-wearing colleagues as merda equi, which is law-Latin for “excrement of, pertaining to, or emanating from, a horse.” All Felix actually says is that if you weren’t required to air an ad, you can’t defend a suit against the ad by arguing that you were. It doesn’t provide an iota of evidence that any station faces liability for running an ad truthfully (or, for that matter, even falsely) attacking a public figure. The plaintiff in Felix wasn’t a candidate or a public figure. He was the guy associated with the candidate being attacked in the ad. For the cases to be remotely analogous, picture the NRA (or any other group, save for the McCain campaign itself) running an ad attacking Obama for his cozy relationship with unrepentant terrorists like William Ayers, only to have Ayers himself turn around and sue them for defamation (which Ayers would be free to do, but for the inconvenient fact that he really is an unrepentant terrorist).
Moreover, you have a duty “to protect the public from false, misleading or deceptive advertising.” Licensee Responsibility With Respect to the Broadcast of False, Misleading or Deceptive Advertising, 74 F.C.C.2d 623 (1961).
The FCC piece in question is not about political advertisements, which enjoy the broadest protection under the First Amendment, but about commercial advertisements, which have only limited protection today – and had none at all in 1961. For a political campaign to argue that any station has a “duty” to “protect” its viewers from advertisements that portray their candidate in a negative light is nothing short of frivolous.
Failure to prevent the airing of “false and misleading advertising” may be “probative of an underlying abdication of licensee responsibility.” Cosmopolitan Broad. Corp. v. FCC, 581 F.2d 917, 927 (D.C. Cir. 1978).
Cosmopolitan Broadcasting Corporation lost its license for almost completely turning over its programming to time brokers, who in turn committed a host of FCC violations the courts concluded would not have occurred if Cosmopolitan had maintained control of their station. Boy, Mr. Station Owner, it sure would be a shame if that were to happen to your station, too, only this time for failing to do the very thing that got Cosmopolitan in trouble. Just to be on the safe side, don’t run any ads against Candidate Obama now that you wouldn’t want to have to defend in front of President Obama later.
This advertisement is false, misleading and deceptive.
Translation: Barack Obama is such a congenital flip-flopper that any ad based on his actual voting record in the past, rather than the stuff he’s been saying on the campaign trail post-Heller, is false, misleading and deceptive.
We request that you immediately cease airing this advertisement.
Not a demand, of course, just a polite request, that only happened to be signed by a lawyer because the P.R. guy was busy. And only happened to cite threatening references to other cases because … well, just because.
We would request the courtesy of a reply;
I’m sure the B.O. campaign will be getting plenty of those, not necessarily from the stations that they were trying to intimidate.
and if you have questions, or believe that this ad is somehow fit for airing on your station, we ask that we have an opportunity to discuss this matter further, in person or by conference call.
‘Cuz hey, if threatening you with the loss of your livelihood didn’t do the trick, there’s always a Plan B.
Please contact Kendall Burman, at (312) 819-2433 or firstname.lastname@example.org, for more information or to inform us of your decision.
Fair enough, but his letter is from Bauer, why not contact him or, if that fails, the bar he answers to? If Ms. Burman is in a position to defend the frivolous theories advanced by the letter, perhaps she should have signed it herself.
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