The First Domino: Revisiting the inspiring court victory of September 3, 2003

Posted by Mitchell - September 2, 2023 (entry 755)

In a political world that wants to ignore you, diminish you, convince you that you're powerless, bragging about what you've accomplished is one the most effective, rebellious, forward-looking acts of civic engagement in your democratic arsenal.
-- Ezra Levin, Indivisible email, June 3, 2023

This weekend marks the 20th anniversary of one of the most remarkable media-related public-interest victories of all time -- the court-ordered block of the FCC's media ownership rule changes.

As we commented previously, the Federal Communications Commission (FCC) had approved an evisceration of the remaining extant media ownership rules on June 2, 2003, and in its wake had faced a maelstrom of widespread outrage from Congress, the public, and, as we will see below, the judiciary.

With a critical mass of widespread awareness now achieved, Chicago Media Action stepped back briefly to focus on We, the Media: A Celebration of Chicago's Independent Media, working in concert with other media activist groups, and held appropriately enough on July 4, 2003.

About a week after "We, the Media", seven of us involved with organizing the event got together for a low-key celebratory dinner in Chicago's Lakeview neighborhood. During dinner, the discussion turned back to the FCC media ownership rules' fight, and we had a fatalistic-but-realistic sense that the rules, despite the fury of activity, were going to go into effect anyway. We got the idea that we should hold a protest on the day the rules would go into effect -- Thursday, September 4, 2003 -- and to share the idea with our respective groups to see if there was any interest.

The idea was met with enthusiasm, and we spread the word to other Chicago-area groups who also joined in to organize a protest. We also shared the proposal with other groups nationally and we were heartened that the Reclaim the FCC website served as a clearinghouse for these other protest actions.

At a meeting of Chicago Media Action, we felt that this protest should be held right at the foot of the local poster-child of media concentration -- Tribune Plaza, 435 N. Michigan Avenue, downtown Chicago. The venue at the time was a hotbed of antiwar protest and activity, so it was natural choice for our symbolic protest as well.

(NB: I wrote some draft chapters in 2011 for a proposed book of a history of Chicago Media Action. I didn't get any publishers to agree to publish the book, but the remainder of this essay is excerpted from one of those draft chapters.)

On September 3, 2003, just one day before the rules were slated to go into effect, the protest became more than just symbolic. The following email arrived in my inbox at about 6:30pm on September 3:

Judges Block New FCC Ownership Rules

PHILADELPHIA - A U.S. federal court on Wednesday [September 3, 2003] blocked controversial new Federal Communications Commission media ownership rules pending a full judicial review in a major blow to large media companies.

In a loss for the Republican-led FCC, the three-judge panel of the Third U.S. Circuit Court of Appeals in Philadelphia granted a stay order that prevented the new rules from taking effect as scheduled on [September 4].

Despite this dramatic victory, we went on with the protest as scheduled – as did protests in San Francisco, Los Angeles, and Pittsburgh. (NB: The website press release linked above also referenced protests in Washington DC and in Charlotte.)

At the rally, we got close to 20 people who attended – it was sunny, it was right after work, it was right downtown, and there had been ample advance notice (we had been planning it for weeks). There were representatives from four groups – CMA, Take Back the Media, the Independent Press Association, and the Chicago chapter of the National Organization for Women (whose national umbrella group had entered the fray over the issue of media concentration). CAN TV [Chicago's public access cable television network] came to record the event, which they assembled into a half-hour presentation that got a lot of airplay. We didn’t get any corporate media attendance, but what else is new?

The emergency stay from the Third Circuit which blocked the FCC vote verified another instructive and inspiring fact. As Andrew Jay Schwartzmann from the Media Access Project (which served as legal counsel for the plaintiffs in that stay request) said in a presentation in 2005:

They [the Third Circuit court] questioned the lawyers for the government: "You got a million postcards. Does that matter?" And the lawyer for the government said: "Well, we decide this on the record. [The postcards are] not evidence. That’s just people writing. They didn’t submit any economic studies..." But the court adopted this precedent which said, if that many people care, if that many people think there’s a problem, that many people believe enough to exercise this First Amendment right to seek redress from the government, send a postcard, send an email, there’s a perception of harm that we ought to acknowledge...the harm is so clear and so obvious, because so many people care. And that’s the basis on which they granted the stay.

But consider this: The American Journalism Review reported "virtually no coverage" of the matter on TV, and there was scant coverage in print media (ironically, one of the leading print outlets for this issue was the Chicago Tribune). So, how did "a million people" learn about the issue when the media wasn’t breathing a word about the matter?

The answer was, and had to be, because of people like us -- a relatively small number of concerned individuals and groups like CMA -- who worked to make it an issue, and in so doing change the landscape on the issue. On this issue, we had pushed the first domino, and all the dominoes thereafter fell one after another. Mind you, that was a very hard first domino to push, but once it did fall, that led to a cascade of positive consequences, which would continue on for years.

The emergency court order bought time for a lawsuit to be filed which, in 2004, overturned the FCC’s rewrite completely and forced the FCC to do over. The FCC’s appeals (including one attempted by the Tribune) over the subsequent years all failed, and the FCC was forced to revisit the matter per the court’s request.

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