Recently, former federal judge Michael Mukasey was nominated to be the next Attorney General of the United States. There’s lots of punditry going on within the mainstream media about his past legal leanings (surprise, they’re reactionary!), but Mukasey’s also been involved in microradio case law to a degree not experienced by any other contemporary Attorney General. It was back in 1998, when the Steal This Radio collective preemptively sued the Federal Communications Commission in hopes of stopping a station raid or other major, life-threatening enforcement action.
STR’s lawsuit was not the most well-thought-out piece of legal argument. It took a shotgun approach to the FCC’s licensing authority: some claims alleged the Communications Act itself was unconstitutional because it gave the FCC excessive latitude to restrict access to the airwaves via the licensing mechanism; one claim specifically attacked the practice of auctioning off commercial radio licenses for limiting “free expression” only to those who can afford it. Another posited the radio spectrum as a public forum, which necessitated the strictest scrutiny of government attempts to regulate it; under such analysis, the broadcast licensing regime was overly restrictive and therefore also unconstitutional.
Then-judge Michael Mukasey, working the Southern District of New York, heard the case. He first used a “jurisdictional wiggle” to avoid addressing some of STR’s more substantive allegations. After doing so, Mukasey savaged their claims. Steal This Radio’s open display of lawlessness coupled with the scarcity rationale were enough to doom their case. However, Mukasey’s ultimate reasoning disqualified them based on the preemptive nature of their lawsuit – they had no standing to seek redress for harm not yet suffered, irrespective of whether the rights in question exist.
Now, as (possible) Attorney General, Michael Mukasey will not be adjudicating such cases any more. But he will be in a position to change the entire federal prosecutorial stance on select “crimes,” such as unlicensed broadcasting, so as to give the FCC more muscle with which to pursue pirates. For example, Mukasey could write a memorandum cordially requesting all United States Attorneys to be more cooperative to the FCC’s pleas for enforcing its fines and/or pursuing injunctions or other criminal-prosecution tools.
After all, Mukasey has personal experience with the issue, and a stance on crimefighting in general which borders on jack-bootery. It’s just another reason why he isn’t an optimal choice for the job.
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