Over the past year, a self-described "fifth-tier blogger" who publishes under the pseudonym Spocko (www.spockosbrain.com) posted audio clips of what he deemed to be offensive and violent talk radio rhetoric from ABC-owned and San Francisco-based KSFO-AM and apparently succeeded in encouraging several advertisers to pull their ads from the station. ABC-corporate struck back, sending a vague, threatening letter to his hosting company, 1&1 Internet, who promptly shut him down instead of standing up for his rights. (Spocko, now back online, subsequently moved his business to Computer Tyme, a host with more backbone.)

EFF has agreed to defend Spocko if he is sued by ABC and/or KSFO over their allegations of copyright infringement, but it more than likely won't come to that. As ABC's lawyers know, the brief audio clips posted on Spocko's blog are classic examples of protected fair use, the right to use copyrighted materials for purposes of commentary, parody, education, or artistic expression. That important detail -- and the fact that KSFO's corporate counsel misrepresented Spocko's legal position in a briefly successful attempt to snuff out his blog -- are conspicuously absent from KSFO's discourse these days, at least so far.

A far better response than the embarrassing legal posturing we've see thus far is what KSFO apparently has on tap for later today (Friday, January 12th). Melanie Morgan, co-host of KSFO's Morning Show, one of the targets of Spocko's criticism, yesterday announced that at least three hours of special programming will be dedicated to addressing the Spocko controversy, beginning at 12:00 pm PT today. Responding to critical speech with more speech is almost always the right response. Better late than never in this case.

Unfortunately, the station has begun arguing (ironically enough) that criticism of their content amounts to censorship. Morgan yesterday blasted Spocko and his "stalker friends on the Internet" who, according to Morgan, are trying to "take away our free speech rights."

Sorry, KSFO. Not quite.

While such radio personalities certainly have a right to air their views, the First Amendment says nothing about a right to advertiser-subsidized speech. Even if advertisers choose to pull their ads because Spocko has a more convincing argument -- even if advertiser revenue dries up completely and shows are cancelled -- it doesn't necessarily follow that anyone's free speech rights have being violated. Rough and tumble speech is often protected speech nonetheless, as KSFO well knows, and the "marketplace of ideas" promoted and protected by the First Amendment frequently results in definite winners and losers. KSFO, quick to call out the attack lawyers yet slow to respond to the concerns of advertisers, is rapidly embracing that loser mantle.

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