Monday, January 5, 2009

Banned by NBC: Motley Crue, and now Ann Coulter?

UPDATED BELOW: NBC denies Coulter was banned.

What does Ann Coulter have in common with the boys of Motley Crue? They both claim that they were banned -- for life! -- by the peacock network. According to Drudge, Coulter has been "banned" by NBC for the mortal sin of being a "downer" while the nation is preparing for the Obama coronation inauguration:
[O]ne network insider claims it was the book's theme -- a brutal examination of liberal bias in the new era -- that got executives to dis-invite the controversialist.

"We are just not interested in anyone so highly critical of President-elect Obama, right now," a TODAY insider reveals. "It's such a downer. It's just not the time, and it's not what our audience wants, either."
This is all eerily similar to an episode involving Motley Crue, whose lead singer Vince Neil wished bandmate Tommy Lee a very audible "happy fuckin' New Year" on a live NBC broadcast just after midnight on Jan. 1, 2005. NBC made clear that the Crue would not be back on its air. So the Crue did what any self-respecting glam-metal band would do in such a situation: hire lawyers and file a lawsuit in federal court in the Central District of California, alleging interference with their First Amendment rights.

It so happens that the Motley Crue case was the first case I was handed when I started work as a litigator at NBC. Let's just say the case went away quietly before we even had a chance to file a motion to dismiss. I'm pretty confident that we would have prevailed had the case gotten that far; the Supreme Court has made clear that TV networks themselves have a First Amendment right to choose whom to book on their broadcasts:
Congress has rejected the argument that “broadcast facilities should be open on a nonselective basis to all persons wishing to talk about public issues.” Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 105 (1973). Instead, television broadcasters enjoy the “widest journalistic freedom” consistent with their public responsibilities. Id., at 110; FCC v. League of Women Voters of Cal., 468 U.S. 364, 378 (1984). Among the broadcaster’s responsibilities is the duty to schedule programming that serves the “public interest, convenience, and necessity.” 47 U.S.C. § 309(a). Public and private broadcasters alike are not only permitted, but indeed required, to exercise substantial editorial discretion in the selection and presentation of their programming.


Much like a university selecting a commencement speaker, a public institution selecting speakers for a lecture series, or a public school prescribing its curriculum, a broadcaster by its nature will facilitate the expression of some viewpoints instead of others. Were the judiciary to require, and so to define and approve, pre-established criteria for access, it would risk implicating the courts in judgments that should be left to the exercise of journalistic discretion.
So Ms. Coulter: go ahead and use NBC's "ban" to gin up controversy to help sell your new book. But don't make a federal case of it.

UPDATE: NBC denies that Coulter was banned:
We've had Ann Coulter on 'Today' many times, but because of the news in Washington and the Middle East, we decided to cancel her appearance tomorrow," NBC News said in a statement Monday. "Understanding the media as well as she does, we are sure she knows this happens from time to time. We look forward to welcoming her back in the future."

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