I had high hopes for the previous version of this screed, but in the end, all it got me was a Pattericolanche, an Unclelanche, an Instalanche, a some-other-guy-at-Pajamas-Media-lanche, a Flakealanche, a mention in the Washington Times and the prospect of a brief radio interview. Some have suggested that the reason for its limited appeal may have been the admittedly intemperate tone I took in that piece. Accordingly, I’m going to take a mulligan on the original post and try a more temperate version now. If you made it 1/4 of the way through my original post and got put off because I was too obnoxious, this post is for you. On the other hand, if you actually enjoyed reading the original version, this one will most likely put you to sleep. You’ve been warned.

Apparently, Barack Obama and his campaign deem it insufficient to have Washington Post, the New York Times, the L.A. Times Jake Tapper, Annenberg Political Fact Check and most other mainstream media outlets in its pocket. In addition to controlling the news sources, the Obama campaign considers it necessary to clamp down on paid advertisements, as well. After all, it’s difficult to control the flow of information if only the dry “news” is controlled but paid advertisements are not. Enter Robert F. Bauer, the distinguished ttorney serving as General Counsel to another attorney and former Constitutional Law lecturer who is presently seeking the Presidency. On Tuesday, the former attorney sent a cease and desist letter on behalf of the latter attorney to a number of TV and radio stations it believed might be running a relatively harsh - but likely accurate - 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.

This statement is not entirely accurate. The evidence that the ad in question is “inaccurate” is speculative at best, and at a minimum, the explanation provided in that attachment is anything but thorough. I shan’t dwell on these minor nits, however, as my principal objection to the letter in question lies not in the veracity of the challenged advertisement, but in my practical and constitutional objections to the Obama campaign’s efforts to silence it.

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.”

That a single news organization disputes the factual content of the advertisement in question - particularly given that the news organization in question is one widely known or at least suspected to share the very bias attributed to Obama - is not convincing evidence that the advertisement at issue is false, let alone knowingly so. This analysis is made further problematic by the fact that Obama’s running mate, Joe Biden, received an even worse rating from that same news organization mere days after this letter was circulated.

For the sake of both FCC licensing requirements and the public interest, your station should refuse to continue to air this advertisement.

Translation: it would be impolitic for me to threaten a station directly. Instead, I’ll merely allude to the possibility that if this particular ad continues to be displayed on your station, unfortunate consequences may follow.

The unarguable falsities in this advertisement include the following:

It is always problmeatic to use words like “unarguable.” After all, anything can be argued. Is it possible that the true intention of this statement was to imply that certain things should not be argued? And if so, I respectfully submit that the Obama campaign may have reason not to want these matters to be discussed openly. Just my opinion, mind you. I could be wrong.

• 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.”

There appears to be a certain disconnect between the quoted statement and the conclusion. After all, it is at least possible, if not probable, that some aspects of what Barack Obama does or does not support can be rightly inferred from his record as a U.S. Senator over the past few years, and as an Illinois legislator before that.

• 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.”

It is rarely prudent to equate public statements by a bill’s author with the text of the bill itself. It is almost never prudent to do so when the bill in question touches on a highly charged political issue such as gun control. Further, Annenberg Political Fact Check has apparent connections to Obama himself which give rise to, at a minimum, appearances of impropriety if not actual bias.

• 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.”

This argument is of dubious merit. As anyone familiar with the anatomy of a deer can attest, deer generally have much tougher and stronger exteriors than humans, to a degree equaling or surpassing the resistance of some, though not all, forms of body armor. The argument is further flawed in that it mistakenly (1) assumes that the weapons banned by the Violent Crime Control and Law Enforcement Act of 1994 were somehow more “vicious” in nature than common hunting rifles not subject to the Act, and (2) conflates the post-1994 federal “assault” weapons bans advanced by Mr. Obama (who was not a politician in any capacity in 1994, and was still a mere state legislator when the VCCLEA expired in 2004) with the significantly broader bans Mr. Obama has sought in the interim.

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).

This argument mistakenly implies that federal candidates do have that power. While federal candidates do indeed have a limited power to compel stations to run their ads (limited by the station’s right to refuse ads from all candidates), they have no generalized power to “command the use of broadcast facilities.” One would hope that this basic fact, central to freedom and democracy as most Americans understand these concepts, will not change regardless of who wins next month’s election. However, the implications of Mr. Bauer’s letter provide insufficent comfort this regard.

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).

This argument does not follow. While it is true that Felix states that a station not required to run an ad is precluded from escaping liability on that basis, this does not mean a station can be sued on that basis, either. In the Felix case, the plaintiff was a non-politician who alleged he had been wrongly smeared by association with the politician being targeted. In the present case, no such associations exist, as the attacks are directed at Obama himself, not at any person associated with him. A different result may obtain if a campaign were to run ads attacking Mr. Obama for his associations with a known racist or unrepentant terrorist. Given that the two individuals generally associated with these causes really are a known racist and an unrepentant terrorist, respectively, such actions are unlikely to succeed, but even if they had merit, they would be unrelated to the NRA ad at issue in this letter. [Lastly, I must confess that the legal doctrine of merda equi does not actually exist. That too was a gross act of intemperance on my part.]

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).

This citation is inapt. The FCC document in question does not concern political advertisements, which enjoy the broadest protection under the First Amendment, but rather, commercial advertisements, which enjoy only limited constitutional protections today, and none at all in 1961. For a political campaign to argue that any station has a “duty” to “protect” its viewers from advertisements adverse to its candidate is questionable, at best.

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).

Again, the cited case is inapt. Cosmopolitan Broadcasting Corporation lost its license for almost completely turning over its programming to time brokers, who in turn committed a number of FCC violations the courts concluded would not have occurred if Cosmopolitan had maintained control of their station. This case is distinguishable, as there is no evidence the stations that received this letter had abrogated their duties to control and remain responsible for their programming. Indeed, the demand that the station cease airing an advertisement at the behest of the opposing campaign seems inconsistent with Cosmopolitan Broadcasting, as it effectively demands that these stations commit the very omission that formed the basis of the complaint against Cosmopolitan Broadcasting in that case.

This advertisement is false, misleading and deceptive.

Given that the advertisement relied primarily on Mr. Obama’s voting record, while the purported rebuttals depend almost entirely on Mr. Obama’s recent statements on the campaign trail, I respectfully submit that the notion that the advertisement in question was “false, misleading and deceptive” has unfortunate implications about Mr. Obama himself.

We request that you immediately cease airing this advertisement.

Given the citations to distinguishable cases that resulted in other broadcasters’ licenses being revoked, this purported request can be construed as a threat. This problem is compounded by the fact that the letter was signed not by Mr. Obama himself, but by his attorney, who held himself out as such early in the letter.

We would request the courtesy of a reply;

It is my prediction that Mr. Obama’s campaign will indeed get its share of replies, but that most of these replies will emanate from Mr. Obama’s newly created critics, and not from the TV stations this letter was intended to silence.

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.

If the intent of the Obama campaign was simply to have a productive discussion on the merits of a particular advertisement, it is my opinion that they should have requested such a discussion first, rather than submitting a letter that reads as a “cease and desist” letter from the beginning, and only touches on the possibility of an amiable discussion later.

Please contact Kendall Burman, at (312) 819-2433 or kburman@barackobama.com, for more information or to inform us of your decision.

It is unclear why Mr. Bauer wants the stations in quesiton to contact Ms. Burman rathe rthan Mr. Bauer himself or, barring that, the bar of which he is a member, and who may disagree with his tactics in sending the letter in the first place. To the extent that answers truly should be directed to Ms. Burman rather than to Mr. Bauer, it would have been more intuitive for Ms. Burman, and not Mr. Bauer, to have been the person signing the letter.

Patterico, Allah, Uncle, Sebastian, Instapundit and Jonathan Adler, Alphecca, Bitter Bitch, Robb Allen, Linoge, David Zincavage and Chad Johnson, Rustmeister, McQ, Curtis Lowe, Mad Rocket Scientist and David Hardy have more.