Month: January 2009

Posted on By Barbara Cochran

A Refreshing Start (With a Hiccup)

By guest blogger BARBARA COCHRAN, president, Radio-Television News Directors Association, Washington, D.C.

Supporters of open government could hardly have asked for a better beginning to the Obama administration, when, as one of his first acts, the new president declared “the beginning of a new era of openness in our country” and signed documents reversing the secrecy policies that had been a hallmark of the Bush administration.

“Transparency and the rule of law will be touchstones of this presidency,” President Obama said at a meeting with his senior staff on his first full day in the White House.

Unfortunately, that promising start was marred within hours when still and video photographers were left out of the news media pool that was hastily summoned to cover Obama’s second taking of the oath of office.  The repeat performance was necessitated after Supreme Court Chief Justice John Roberts misspoke the words of the oath, which are prescribed in the Constitution, while administering the oath on Jan. 20.

The Radio-Television News Directors Association has joined with other media organizations and advocates of open government to seek more transparency from the new administration.  Obama signaled his intentions in his Inaugural Address when he called on those in government to “do our business in the light of day – because only then can we restore the vital trust between a people and their government.”

In the Presidential Memorandum on Transparency and Open Government and the Presidential Memorandum on the Freedom of Information Act, the president ordered all government agencies to operate under principles of openness and to release information to citizens whenever possible.

This directly counters the policy initiated by Bush’s first attorney general, John Ashcroft, who encouraged agencies to withhold information if there were any plausible reason and offered the full backing of the Justice Department to resist information requests.  After 9/11, the Bush administration created new categories of information that could be withheld and removed thousands of pages of government records from Internet access.

Obama also moved to free up information about his presidency or past presidencies by issuing the Executive Order on Presidential Records, which allows no one but the president to assert executive privilege to withhold documents.  He said he would consult legal counsel before any final decision to withhold information.

“Information will not be withheld just because I say so,” Obama said.  “It will be withheld because a separate authority believes it is well founded in the Constitution.”    

Nor has this been the only piece of encouraging news as the new administration takes shape.  In testimony during his confirmation hearing, Attorney General-designate Eric Holder breathed new life into hopes for a federal reporters’ shield law to protect journalists from being forced to disclose their confidential sources.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) asked Holder about his position on the shield bill, which was opposed by the Bush Justice Department.  Holder said he favors “the concept of a shield law” and would support “a carefully crafted law” that gives the Justice Department “the capacity to protect national security and to prosecute any leaks in intelligence that may occur.”

Holder’s comments were not a full-throated endorsement, but at least he left the door open to working on new legislation.  The last efforts failed when the bill never came to the Senate floor in the 2007-2008 session of Congress.

The previous bill included protections for national security concerns.  Now media groups, including RTNDA, want a law that will cover unpublished information, such as video outtakes, and protect bloggers who regularly gather news and report to the public. 

High-profile subpoenas in the Valerie Plame, Wen Ho Lee, and Stephen Hatfill cases have highlighted how often reporters are being threatened with fines or jail sentences in federal cases if they refuse to disclose their sources.  No one knows for sure how many subpoenas have been issued, but the Justice Department informed the Reporters Committee for Freedom of the Press that the attorney general had approved 65 subpoenas between 2001 and 2006.

The Obama administration is in its infancy and much remains to be fleshed out about its policies in a host of areas that affect media interests.  The incident with the media pool and the oath is troubling but may just be a hiccup as the new White House Press Office learns the ropes.  But, so far, it’s refreshing to see an administration that wants to let the sunshine into government activities and that understands the importance of protecting journalists’ ability to report on critical issues that depend on information from confidential sources.

Posted on By Patrick Maines

Kevin Martin, and the Peril of Fixed Ideas

Like the man who appointed him to the position, today marks FCC Chairman Kevin Martin’s last day on the job. That both he and President Bush are leaving office to the relief of most, and the glee of many, is partly explained by a trait they share: Both have an unfortunate capacity to project their personal views ahead, and at the expense, of sound public policy.

In Bush’s case the most obvious example is the Iraqi adventure; in Martin’s it has been his pursuit of content controls on TV programming. This is not to say there weren’t other things on their agenda—some of which even went right—just that it is these issues for which they will be  remembered most critically.

Looking back on it, two events bookend The Media Institute’s relationship with Kevin Martin. The first was a speech he gave at our annual awards banquet in October of 2003, at a time when he was but a Commissioner at the FCC; the second was a private meeting I had with him in May of 2005, not long after he became Chairman.

With the benefit of hindsight, one can see in Martin’s banquet speech an outline of  where his personal views might later take him. Indeed, I knew even before the speech that he had a strong aversion to indecent programming. But even so I assumed that his clear understanding of the benefits of free speech (much of which he attested to in his remarks), and his knowledge of the constitutional limitations, would overcome his personal views.

To be fair, Martin would deny, and indeed has denied, that his pursuit of indecent TV programming was anything more than an obligation on his part; that Congress has passed laws and he was simply enforcing them.

That argument, though, puts me in mind of a tale concerning the former British Prime Minister, Harold Wilson. Seems that, so the story goes, Wilson went round to Buckingham Palace following his Labour Party’s defeat in 1970, there to tender his resignation to the Queen, only to find that she had gone for the day to the races at Ascot. This was said by many to be very odd because the Queen was known to be a lady who always put duty before pleasure. Perhaps though, said one, the Queen saw Ascot as her duty and Wilson’s resignation as her pleasure.

However he saw his duties, Kevin Martin’s crackdown on TV content was definitely his pleasure.

In November of 2004, The Media Institute published an essay written by Arizona State University professor Laurence Winer. Titled “Soul of the Censor: The FCC Attacks Television Violence,” the essay was a brilliant, if provocative, explication of the constitutional infirmities, and other problems, with the FCC’s crackdown on violent and indecent TV programming.

Six months later, and with growing concern about the direction in which he seemed headed, I wandered over to the FCC for a meeting with Martin, who just two months earlier had been named Chairman. My hope for the meeting was that I might be able to persuade him to make a course correction re “fleeting expletives,” and all the rest of it, on the argument that the Commission was putting the cart before the horse; that, as Professor Winer had observed, not only was there no evidence in the record of harm from exposure to indecent TV, the nature of the alleged harm itself wasn’t even explained.

Martin was having none of it, though, and showed a particular displeasure with Winer’s essay. And so, though I didn’t realize it at the time, what had been a collegial relationship with him, and with Michael Powell before him, turned adversarial. Thereafter, he rarely attended Media Institute functions, and largely stopped communicating with us.

But he didn’t stop, or even slow down, his campaign to “clean up” the airwaves. Instead, he turned his attention to cable TV, and to his “a la carte” proposal for cable pricing, a mission that, given its length and depth, took on almost comical proportions, with some observers likening it to Ahab’s pursuit of Moby Dick.

Martin argued that the motive behind his a la carte advocacy was to give consumers a break in the rising cost of cable TV service, but virtually nobody was buying it. Instead, it looked to most people as just another attempt to supplant ‘indecent” with “family friendly” programming. As Fortune’s Mark Gunther put it, “So what’s going on here? Politics, as usual.”

In the end, the great irony in Martin’s a la carte campaign–and indeed in all of his efforts to combat what he deems offensive or harmful TV programming–is that owing to the Internet and its effects, the marketplace by itself is moving toward program disaggregation and greater consumer choice, a development one might think a Republican appointee would have expected and preferred to government controls.
 

Posted on By Patrick Maines

Obama and the Media, Part II

Apart from the economic effects of President Obama’s fiscal and regulatory policies, there arises the question of how “business friendly” he may prove to be.

The media and communications sector plays a large and important role in the general economy, and the new Administration’s stance on issues that matter to this sector may answer that question.

As mentioned in Part I of this piece, three such issues are consolidation, content controls, and “network neutrality.” The first two were described in the earlier post, today’s looks at the third.

Like beauty, “net neutrality” seems to exist more in the eye of the beholder than in any objective sense. This can be seen in the difficulty that attends even a simple definition of the term, and in the disparate opinions expressed for and against it.

But what can’t be disputed is that passage of any kind of net neutrality legislation would mean that government had acquired a new role in regulating the Net, with consequences certain to be both intended and unintended.

This expansion of the role of government, and concomitant reduction of the private sector, is of course no concern to groups like Free Press who, true to the “class struggle” mindset of their founder and president, worship everything governmental.

But it is a considerable concern to those corporations and investors whose labor and capital are indispensable elements in the further buildout and efficient functioning of the Net.

And this isn’t even to mention the problem, identified by the late Ithiel de Sola Pool, of the risks to free speech when a heretofore unlicensed and unregulated medium (his example was print), evolves into one that is licensed and regulated.

Given the paucity of evidence that broadband service providers have abused their roles in re  censorship or quality of service issues, and that in fact all of them have taken steps publicly and privately to allay such concerns, the wise and business-friendly thing would be for Obama and his people to declare victory in the campaign for net neutrality, disclaim any need for legislation, and move on.
 

Posted on By Patrick Maines

Obama and the Media, Part I

Writing in Broadcasting & Cable as chairman of the American Business Leadership Institute, the gifted Adonis Hoffman*       suggests that business has nothing to fear from an Obama Administration. 

Some early tests of Hoffman’s thesis will come in that corner of the nation’s economy that we care about most — the media and communications sector.  Three distinct issues come immediately to mind: consolidation, content regulation, and net neutrality.

Unless you’ve been in a coma, or trapped inside Free Press (which is pretty much the same thing), you’re aware of the pit into which much of the print and broadcast media are falling.  You also know that the proximate cause of their problems is the Internet, and the damage it has done to publishers’ and broadcasters’ business plans.

For all of this, you’re also aware of one other thing: that however much professional journalists and entertainers may disappoint, they are an essential part of any well-functioning democracy.

So given all of this, why would anyone want to deny broadcasters and publishers such business opportunities as may obtain these days through consolidation?  It’s not, after all, as though we’re talking about marrying companies that are triumphant and unstoppable.  Just the opposite.  In many smaller communities especially, we‘re talking about companies that are on the cusp of oblivion.  And while it’s hard to make the case that inter- or intra-industry consolidation comprises a solution to the crisis facing broadcasters and publishers, neither is it easy to make the argument that it wouldn’t help on the margins.

In a recent interview, Kevin Martin, whose chairmanship of the FCC has been indelibly marked by his passion for content controls, is said to have made “no apologies for his indecency enforcement, saying it was for the sake of children.  He adds that food marketing and media violence are two other places he thinks the government may need to step in….”

And so much for anything and everything to do with personal responsibility, the First Amendment, and the quaint idea that the people who own businesses are in the best position to know how to run them.

Depending on how Obama and his appointees come down on this issue, future programming decisions may well be made not by people whose primary interest is in creativity or profits, but in politics — thereby opening the door to every special interest and single-issue fanatic with designs on TV, and through it, on you.

(Next in "Obama and the Media, Part II": Net neutrality.)
*Adonis Hoffman is a member of The Media Institute’s First Amendment Advisory Council.

Continue reading “Obama and the Media, Part I”