Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

Articles by Josh

A suggestion from a reader ...

A stockholder in Sinclair Broadcast Group can file what's called a "shareholder's derivative action" against the officers and directors of the corporation, which is publically traded, to enjoin the officers and directors from using corporate resources in ways that do not benefit the shareholders. I believe Sinclair is incorporated in Maryland, and if so that's probably where the action should be brought. One stockholder has standing to sue and should request a temporary restraining order before the pseudo-documentary airs to prevent the officers and directors from misusing corporate property to benefit their political agenda. The reason it is misuse of corporate property is because ordering the local stations to air the anti-Kerry propoganda will likely cause a loss of network advertising revenue, may in fact violate the stations' contracts with the networks they are affiliated with, and is almost sure to embroil the corporation in costly legal battles, for example from entities complaining that this is an illegal corporate campaign contribution, or from angry consumers who will contest the stations' license renewals. Against this, there has to be some plausible benefit to the stockholders or the corporate action is unlawful and could subject the officers and directors to personal liability for any damage to the stockholders. They also could be stuck with the legal fees of both the corporation and the stockholders who sued them.

Shareholders derivative actions are fairly complex; we need a Maryland corporate lawyer type. I'm a lawyer in Texas and was thinking to file the suit here but under Texas law, the acts of the officers and directors are governed by the corporate law of the state of incorporation, about which I know little. However, I do know that as a general principle, corporate officials have a fiduciary obligation to the stockholders, and everything they do is supposed to be for the benefit of the same. Normally a court won't second-guess the decisions unless the stockholder can show that there is no plausible benefit to the corporation in the complained-of act. What could the benefit be here?

I'd be curious to hear <$NoAd$>reactions from readers with relevant legal or business experience how practicable this would be. Of course, I'm curious about everyone's reactions. But in this case I'm particularly interested in hearing with folks with professional insight into how this might work. Of course, the most direct approach -- and I suspect a successful one if done correctly -- is to target Sinclair's advertisers. Another reader writes in the following ...

[I've removed the introduction to this letter where the reader describes a local TV market where he works. Suffice it to say that he works in local TV and says he has friends who work at some of the Sinclair affiliates in question.]

Let me tell you, they're NOT afraid in the least of the license challenges that Steve Soto has proposed. I mean, what's the point? If they air it, then fine, challenge away, I'm all for taking revenge on them. But the goal should be to shut down the broadcast before it happens.

What they're deathly afraid of is the stink of this thing will somehow waft over to their advertisers. That's of course why they're not selling local ad time for this show. Having worked in the ad department of Sinclair's competitor, I know that local Sinclair stations make over 60% of their ad revenue from their nightly 6pm newscast. That's their bread and butter. You make a concerted effort to go after their top advertisers on the 5pm/6pm news hour and you'll have the executives spiking this show so fast it'll be amazing.

Again, I have no basis for judging what would work best, though common sense suggests that going after these guys on every front simultaneously would probably be the best bet.

As we move into the rough and tumble of the final month of this campaign, let me take a brief moment to restate the TPM ad policy first discussed here just under a year ago.

(If you'd rather read about US politics rather than this site's ad policy -- which I'd entirely understand -- by all means scroll down to the next post.)

I've gotten many questions about this via email. So let me try to address them again in one fell swoop.

The ads that run on this site represent a commercial transaction. There is no implied endorsement whatsoever.

Recently, there was one ad running on this site that was pro-Nader; another that was anti-Nader. People wrote in complaining about the pro-Nader ad; others were miffed by the anti-Nader ad. And when they were both running at the same time there were several complaints from folks claiming it was hypocritical to run both of them since I could not support the messages contained in each.

Anybody who's read this site for any length of time knows there aren't many people who have a dimmer view of Ralph Nader these days than I do. But, again, the ad space is open to all political views -- left, right and center.

That doesn't mean that everything is allowed. I reserve the right to reject ads that I find inappropriate for reasons of content or taste. And I would reject ads that I thought were unambiguously spreading falsehoods. But in each case my effort would be to lean in the direction of inclusion. And I would do my best to make the judgment with as little coloration as possible by my political views.

(I have, for instance, rejected a number of ads over the last year. Some of those were simply cases of content that censors wouldn't let you put on TV -- four letter words, sexual content, etc. Most though were ads that attacked the president in ways I found tasteless, needlessly degrading or just disrespectful.)

I think this is a sound policy, both practically and in principle. And I don't plan on changing it. But I welcome your views and suggestions.

Too generous ...

I had been thinking about a post that would put in stark terms what is going on with this Sinclair Broadcasting stunt, noting how it amounts to a massive in-kind contribution from Sinclair to the Bush-Cheney campaign to pay for the broadcast of an hourlong Swift Boat ad ("Stolen Honor") smack down in the middle of primetime broadcasting on local network television channels across the country. After all, it's the same basic material and it even includes several of the same aggrieved veterans.

But like I said, too generous. It isn't like a Swift Boat ad. It actually is a Swift Boat ad.

A perspicacious TPM reader (JJG) notes that a September 29th press release on the 'Stolen Honor' website announced that 'POWs for Truth', the sponsor of the 'documentary', was merging with 'Swift Boat Veterans for Truth' to form the new consolidated group 'Swift Vets and POWs For Truth.'

If it weren't so disgusting, it would almost be funny.

So the Swift Boat folks are hawking a 'documentary' put together by a guy who has specialized for the last fifteen years or so in made-to-order investigations for various right-wing outfits like Rev. Moon. Sinclair orders their 62 network affiliates to run the thing in prime time days before the election. And they give the Swift Boat folks the ad time for free on the premise that they're running it as news programming.

Unlike cable programming, local broadcast licenses aren't 'owned' -- courts have always been clear on this. The right to broadcast over a given slice of spectrum is public property on loan to the broadcaster in exchange for providing programming in the public interest. This move is but a paler version of the de-democratization we're now seeing in Russia as the standing government asserts increasing control over a nominally independent media.

It's not a 'fairness' or a free speech issue. It's a massive and quite public case of election and campaign finance fraud.

It's the sort of thing that, if it happens, will put the legitimacy of the entire election into doubt.

Welcome to the world of Rove.

Yesterday former FCC Chairman Reed Hundt sent the following message to <$NoAd$>executives at Sinclair Broadcasting Group ...

Dear sirs:

I'm told you were involved in a decision to order Sinclair stations to carry anti-Kerry propaganda. If my information is false, please forgive this intrusion. While I do not believe you should be required to carry pro-Kerry content, except of course for an even-handed sale of your advertising time to both campaigns, I do wish to register my objection and concern if in fact you have obliged your stations to carry anti-Kerry propaganda.

I assure you that if you were carrying anti-Bush propaganda I would be equally concerned.

The problem is this: How can it be part of a broadcaster's public interest obligation to aspire to alter the perceptions of the audience about a presidential candidate by showing biased content that in no way reflects either breaking news or even-handed treatment of the issues? Why should a broadcaster keep its licenses if it behaves in this manner? I hope you will reconsider your edict -- unless, of course, I am misinformed, in which case I do hope you forgive this message.

-- Reed Hundt

He hits on the key point: the stations' licenses. And here are some good ideas about how to proceed.

The Times today has a piece on the anti-Kerry documentary Sinclair Broadcasting Group has ordered its 62 local stations to broadcast in the days before the election. Those 62 stations include affiliates of all six major broadcast networks in Florida, Ohio, Wisconsin, Nevada and Pennsylvania. The broadcast will preempt normal prime-time programming on those channels.

In case you are holding out some errant hope about the accuracy or fairness of the presentation, you'll be happy to know that the major claim-to-fame of the movie's producer, Carlton Sherwood, is Inquisition, his 1991 expose on the US government's alleged 'persecution' of the Reverend Sun Myung Moon.

Sherwood's report was so 'independent' that he let Moon's representatives pre-screen it and make changes to the text. They also reportedly agreed to buy 100,000 copies of the book for good measure.

Welcome to the world of Rove.

Amazing. Just as the Department of Health and Human Services did last year with the White House's Medicare reform bill, it seems the Department of Education has been sending out faux 'news' videos to local TV stations promoting the No Child Left Behind bill.

(They even use the same faux reporter -- 'Karen Ryan' -- as appeared in the earlier HHS videos.)

What really popped out at me in this new AP story, however, was this: The company that the Department of Education hired to produce the 'news' videos was also hired to analyze and rank news coverage of the law in order to gauge the success of their PR campaign.

One might say that this was a reasonable use of public money if the coverage were being judged on the basis of how effectively it informed the public about benefits they could receive under the law, and stuff like that. But according to the AP story, in the rankings paid for by the Department, "points are awarded for stories that say President Bush and the Republican Party are strong on education."

What's the public interest in that exactly? That's campaign work, paid for by tax dollars.

Longtime TPM readers will remember the election day 'phone-jamming' scandal in New Hampshire in 2002. The state Republican party hired an Idaho company to knock out the phones of the Democratic get-out-the-vote operation on election day by placing hundreds of automated hang-up calls to their phone banks. The whole episode might seem to be fading back into history were it not for the fact that a motion filed Friday in US District Court in Concord claims that a key player in the felonious scheme was none other than the man who now serves as the New England Chairman of Bush-Cheney 2004.

To put this all in context, let's review what we know.

As we noted in August, two men have already entered guilty pleas in the case: Chuck McGee, former Executive Director of the State Republican party and Allen Raymond, a Republican political consultant. But earlier court filings and press reports had already made it clear that there was a third person involved.

Some details about this unnamed individual's role were revealed in open court in July by prosecutor Todd Hinnen, when he told the court ...

In late October 2002, the defendant, Allen Raymond, then the president of Virginia-based political consulting company GOP Marketplace, LLC, received a call from a former colleague who was then an official in a national political organization. The official indicated that he had been approached by an employee of the New Hampshire Republican State Committee with an idea that might give New Hampshire Republican candidates an edge over New Hampshire democratic (sic) candidates in the upcoming election. (emphasis added)

The suggestion that this accomplice was then "an official in a national political organization" caught the notice of folks who were watching the case. And later, on August 12th, TPM and the Manchester Union Leader both reported that the person in question held a senior position in the Bush-Cheney reelection campaign.

As the Union Leader put it, "We can’t tell you who it is or whether he broke any laws, but we can tell you the person questioned by the feds has a significant role in the Bush-Cheney campaign."

But on Friday, counsel for the New Hampshire State Democratic party filed a motion in the case that sheds some new light on the identity of this mystery individual.

(On Sunday, state Democratic party Chair Kathy Sullivan confirmed the contents of the motion excerpted below and that the motion had been filed with the court late on Friday afternoon. A .pdf version of the motion is available here.)

It reads, in part ...

6. The victim believes that the unnamed individual who connected the criminal endeavors of convicted defendants McGee and Raymond was a regional director of the 2002 Republican Senatorial Committee and that his efforts were directed at depriving former governor Jeanne Shaheen of victory in her race for the United States Senate. This same individual is believed to currently be directing the New England Regional Bush-Cheney campaign, and thus is in a critical position from which he can engage in further illegal activities to distort the outcome of the presidential race of 2004. (emphasis added)

Now, who is this person they're talking about?

The New England regional chairman of the Bush-Cheney campaign is Jim Tobin, a Republican political consultant and operative from Maine.

Tobin fits the other description contained in the motion as well: In 2002, when the phone-jamming incident happened, he was the Northeast political director for the National Republican Senatorial Committee.

There is simply no one else who fits the description in the motion.

Neither Tobin nor Bush-Cheney 2004 returned repeated calls requesting comment on the claims contained in the aforementioned motion, whether Tobin was involved in the November 2002 phone jamming episode, or whether he has been questioned by federal investigators in the probe.

Earlier this evening I flipped by the Fox News media criticism show and noticed that they were talking about the Mark Halperin memo posted on Drudge. I had the volume off so I didn't hear what was said. And there is a certain richness to Fox News discussing any other news organization's 'bias' when they're just a few days away from and have yet to explain why their chief political correspondent published a denigrating and fabricated story about the candidate he is supposed to be covering.

But what does this memo say, exactly?

Various right-wing barkers are trying to make it out as though Halperin has been caught in some impolitic or embarrassing remark. But quite the contrary is the case.

This is simply a news organization trying to grapple with the same reality that every respectable news outlet is now dealing with -- how to report on the fusillade of lies the Bush campaign has decided to use against John Kerry in the final weeks of the campaign.

The plain intent of the memo is to tell ABC reporters that they should feel neither obligated nor permitted to equate the level of deceptiveness of the Kerry and Bush campaign's if and when they are in fact not equal.

Everyone can see that they are not equal. Halperin is just saying it. And in doing so he has run smack into the epistemological relativism that now defines the Republican party.

The most noteworthy thing I've seen in the right-wing response is that there seems to be little effort to deny or engage the question of whether the Bush campaign is being qualitatively more dishonest than the Kerry campaign. All the whining is focused on the fact that any news organization would have the temerity to try to distinguish between them.

Which gets us to a key irony of the conservative assault on the concept of journalistic objectivity and claims of media bias. Though they attack the very notion that journalistic objectivity is practiced by the mainstream (i.e., non-Fox) media, they are most often -- and certainly in this case -- its great beneficiaries in as much as the failing of the current norm of objectivity is that it advantages liars. No surprise they'd want to maintain that advantage.

Hmmm. Karl Rove tells Sean Hannity about 'October Surprise' he's working on. "We've got a couple of surprises that we intend to spring," says Rove.

Hmmm. More information on the guy, Carlton Sherwood, who made the anti-Kerry film that Sinclair Broadcasting is ordering on to its stations across the country a few days before the election. Seems he worked for Tom Ridge in Pennsylvania and then got a gig with the Bush administration running part of their Homeland Security media operation.