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High Court To Consider Political Lies, Future Of Broadcasting


Two important cases will be argued before the U.S. Supreme Court today. One of them involves a high-stakes, high-tech battle that has raised the possibility of major TV networks no longer broadcasting over the air. The other case involves the future of lying in political campaigns. Here's NPR's legal affairs correspondent Nina Totenberg.

NINA TOTENBERG, BYLINE: Is there a constitutional right to lie? Ohio and about a third of all the states have laws that make certain kinds of campaign lies illegal. The Buckeye State version imposes potential fines on organizations convicted of violating the law. During the 2010 midterm elections, the anti-abortion Susan B. Anthony List wanted to put up a billboard ad targeting then-Congressman Steven Driehaus or his vote on the Affordable Care Act.

The ad said, quote, "Shame on Steve Driehaus. Driehaus voted for taxpayer-funded abortions." In fact, Driehaus and other anti-abortion Democrats supported the Obama health care bill only after the president agreed to issue an executive order that specified tax dollars could not be used for abortion except in cases of rape, incest or to save the life of the woman.

Driehaus filed a complaint with the Ohio Elections Commission, and the commission found probable cause of a violation. But the ad never went up because the advertising company that owned the billboard space refused to allow it. Driehaus subsequently lost his reelection bid, and his complaint to the state elections commission was withdrawn. The Susan B. Anthony List was never prosecuted, but it nonetheless continued its legal challenge to the law. The lower court dismissed the suit, and the group appealed to the U.S. Supreme Court, contending that its free speech rights had been violated. The group argues that under our Constitution, the government cannot decide what is false speech in the context of a political campaign.

Before the court actually gets to that question, however, those challenging the law must clear an important procedural hurdle. The court's conservative members have in the past been very strict about requiring a showing of actual harm to justify getting in the courtroom door. But the same justices who stress this test have also been the most aggressive in asserting the First Amendment right of free speech. They've used that principal in striking down laws that limit corporate and union campaign spending, for instance.

In the Ohio case being argued today, civil libertarians on the left and right have filed briefs opposing the law against lying. They point a lot of famously false statements by those in public life. President Nixon, who later resigned in disgrace.

PRESIDENT RICHARD NIXON: People have got to know whether or not their president is a crook. Well, I'm not a crook.

TOTENBERG: President Clinton, accused of having an extramarital affair in the White House.

PRESIDENT BILL CLINTON: I did not have sexual relations with that woman.

TOTENBERG: President George H.W. Bush, speaking at the convention that nominated him for the presidency in 1988, made this pledge on taxes.

PRESIDENT GEORGE H.W. BUSH: Read my lips: no new taxes.

TOTENBERG: And President Obama, campaigning for his health care plan.

PRESIDENT BARACK OBAMA: If you like your private health insurance plan, you can keep your plan, period.

TOTENBERG: Whether each of these statements was made knowing it was false is at least debatable, but just listing them makes the point that falsity in politics may sometimes be hard to define. Today's second case sounds like a far more prosaic copyright battle, but in fact, it amounts to a fight for survival between a tiny startup and the TV networks.

The startup contends it is innovating and creating cheaper ways for people to pay for only the stations they most often watch. The networks contend that the startup is using a gimmick to thwart to the economic vitality of their business. So serious is the economic threat, that two major networks have said they would consider abandoning over-the-air, free broadcasting if they lose, broadcasting instead only on pay cable channels. And the NFL and Major League Baseball have similarly threatened to abandon broadcasting on free local channels.

The essence of the legal argument is this: federal law requires that anyone rebroadcasting what is known as public performance - let's say "NCIS" or "Modern Family" or the local news - is required to pay copyright fees. Those rebroadcasting fees will provide an estimated $4 billion for the networks this year, and double that amount in four years.

Enter Aereo, Incorporated, a startup with a novel idea and a new technology. It's created tiny, dime-sized antennas that pick up over-the-air signals of the network affiliates in New York, Atlanta, Boston and eight other cities. The antennas are centralized on circuit boards at Aereo locations in each city and activated remotely by subscribers. Using this system, subscribers can live-stream local stations and record programming for a price that is a fraction of what it would cost to watch via cable - $8 a month for 20 hours of storage, $12 for 60 hours. CEO Chet Kanojia compares his service to TiVo, and maintains that his company similarly is not retransmitting public performances, because each antenna is controlled by an individual, not the company.

CHET KANOJIA: There is a clear distinction between technology providers that are allowed to sell technology to enhance the consumer's experience and cable companies.

TOTENBERG: His business model is based on the idea that most people regularly watch only a small number of channels, usually the major network channels. Therefore, a remote antenna service that allows subscribers to live stream and record on any mobile device is cheap and has a built-in audience of people who don't want to pay hundreds of dollars for cable bundles. He won't say how many subscribers he has, but he observes that the use of regular, old-fashioned antennas is increasing, too, now serving some 60 million people.

KANOJIA: Why? Because they can't afford a $250 cable bill.

TOTENBERG: Increasingly, he says, people are looking at TV offerings and saying...

KANOJIA: I've got Netflix for eight bucks a month. And if I can get my local TV - which gives me sports, news, weather, you know, basic lifeline services - that makes sense to me.

TOTENBERG: But does the law allow a company like Aereo to essentially skim off the cream of the network and local programming for its own use and profit without paying for it? No, say the networks, observing that their programming costs lots to produce, and that local stations pay lots for it. Erin Murphy, one of the lawyers representing the network, says that what Aereo is doing has nothing to do with the public good, and everything to do with circumventing copyright law.

ERIN MURPHY: If Aereo can do this, there's really no reason that a cable company and a satellite company can't turn around and create their own Aereo-like workaround.

TOTENBERG: Meaning they, too, would pay no copyright or licensing fees. Tom Goldstein, publisher of a leading Supreme Court blog, agrees that Aereo's legal argument is an attempt to find a loophole in the copyright law. But will it work?

TOM GOLDSTEIN: Is the Supreme Court going to look at this and say: Oh, you came up with a good trick and you've worked your way around the statute? Or is it going to say: Oh, come on, give us a break?

TOTENBERG: The court is expected to rule by summer. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.