Month: June 2012

Posted on By Patrick Maines

The Koch/Cato Settlement

It was announced yesterday that, in return for some changes in its Board and the resignation of the Cato Institute’s co-founder and CEO, Ed Crane, the Koch brothers are withdrawing their lawsuits against the organization.  Given the negative effect that the lawsuits were having on Cato’s fundraising, it’s no surprise that the Institute would eventually be obliged to give up something important in order to move on. But in accepting Crane’s offer to go, they’ve given up a lot.

Organizations that are moved by idealism rather than commerce, and that persist and prosper against all odds, are often the creatures of their founders and long-time leaders.  The late Bill Baroody, founder of the American Enterprise Institute, comes to mind.  And so too with Crane, who has led Cato for 35 years, during which time it has become one of the leading think tanks in the United States.

If, 20 years from now, Cato is still the powerhouse it has become, people in the know will say that Crane’s successors were good, but that Crane was great.  And they’ll be right.

                                  

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

Posted on By Patrick Maines

Reconsidering the FCC’s Political File Rule

The FCC’s recently minted rule requiring certain broadcast stations to post their political ad files online rather than, as is currently the case, in their local public inspection files, is not the kind of issue that is likely to stir the nation’s passions.Regardless of how challenges to the rule pan out, very few people are going to run off and join the circus if things don’t go a certain way.

Still, it’s a more interesting issue than, on its face, it would appear to be – and there’s evidence that defenders of the rule, along with reporters, are not paying attention to some of the finer points being made in opposition to it.

As of today there are three separate challenges to the rule – one at the FCC, one at the Office of Management and Budget, and one in the U.S. Court of Appeals for the D.C. Circuit.  The petition for reconsideration at the FCC, signed by 12 TV station groups, is the most nuanced of the complaints.

As with the others, the FCC petitioners are mostly concerned about having to reveal online their spot-by-spot ad rates, but with this difference: The petitioners propose to aggregate such data in a way that would not reveal their ad rates but would actually make it easier for everyone, journalists included, to understand who is contributing to whom, and in what amounts, and in addition to include online the same kind of information for state and local candidates, something the FCC rule does not require.

Why the broadcasters are opposed to having to reveal online their political ad rates, when they already provide this information in their local public files, takes a little explaining.

Currently, broadcasters are required by law to offer political advertising to candidates for federal office at the “lowest unit rate,” which is the rate they charge their best commercial advertisers.  But these data are not that user friendly, and in any event requires that someone physically go to a TV station for the purpose.  (For anyone so disposed, the cumbersomeness in this only grows, as the date of an election draws near, because TV stations update their political files more frequently at that time.)

Campaign representatives sometimes do check these files to ensure that their candidates are not being charged more than their opponents, but commercial advertisers do not, and that fact touches on one of the main worries among the broadcasters: They fear that if they have to reveal online their spot-by-spot ad rates, some of their commercial advertisers (knowing that the political rates are based on what the stations charge their best commercial customers) will demand these rates for themselves.

It’s also bothersome to broadcasters that their media competitors, both in broadcasting and cable, would have access to this information, and it’s further been suggested that, as written, the FCC rule may encourage trial lawyers to file frivolous lawsuits against TV stations on behalf of losing candidates.

So in the case of the FCC petitioners, the question isn’t why broadcasters don’t want to provide their political files online (they are willing to do that), but why defenders of the FCC rule insist on requiring the online display of stations’ ad rates?

After all, one of the main goals of the campaign finance laws is to provide, in a timely way, information about candidate and issue expenditures.  It’s not the goal of these laws to compel TV stations to divulge their competitive secrets about ad rates and the like.

When asked about the unwillingness of the FCC to approve this simple modification to its rule – the Commission had this suggestion before it prior to its vote in late April – a communications lawyer prominently involved in the matter said that, in the wake of the Citizens United decision, everything touching on campaign finance has taken on a kind of “religious aspect,” such that advocates of campaign finance laws are these days unwilling even to grant such harmless accommodations as those presented by the petitioners.

Notable by their absence from the FCC petition are the station groups owned and operated by the Big Four TV networks.  Lawyers for the petitioners note that the networks supported the suggested “aggregation” approach prior to the FCC’s vote, and aver that they support the petition now.

That may be right, but if so it’s hard to confirm.  It may be, instead, that the networks don’t like the odds that the FCC will accommodate the petitioners, or that they are unhappy about the petitioners’ proposed inclusion of political ad information about candidates for local office.

For its part, the National Association of Broadcasters has appealed the FCC’s rule to the OMB, claiming that the obligation to put the political files online is unduly burdensome, and in conflict with the Paperwork Reduction Act.

There may well be real merit in these other concerns, and in the arguments to be fleshed out in the broadcasters’ lawsuit in the D.C. Circuit, but it’s the modest proposal made by the FCC petitioners that shines the brightest light on how hard it is these days to forge reasonable compromises in a deeply divided nation.

                                  

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

Posted on By Kurt Wimmer, Esq.

Google and the First Amendment

By guest blogger KURT WIMMER, ESQ., partner at Covington & Burling LLP in Washington, D.C., and chairman of The Media Institute’s First Amendment Advisory Council.

I just had the privilege of participating in a panel discussion at an American Antitrust Institute conference.  My panel included such luminaries as Eli Noam of Columbia, Gene Kimmelman of the Antitrust Division of the Department of Justice, and Susan DeSanti of the Federal Trade Commission.  Unlike many of my colleagues on the panel, I’m far from being an antitrust expert.  My topic was a more familiar one – whether enforcement of antitrust law against a search and advertising provider would violate the First Amendment. 

The question arises because of a novel proposition being advanced by Google.  The Federal Trade Commission is investigating claims that Google has violated antitrust law by manipulating search results to favor its own services and bury the services offered by vertical search engines that might compete with Google.  Google has argued that it is absolutely immune from antitrust liability because its search results constitute speech protected by the First Amendment – in fact, it asserts that the First Amendment actually “blocks” the application of antitrust law to it.  Google analogizes its work to that of a newspaper editor selecting information for publication, and seeks the same “absolute” protection that a newspaper editor would receive under the First Amendment.

But wait – newspaper editors don’t receive absolute protection under the First Amendment.  If editors’ work is absolutely protected, why did I spend last night discussing a story with an editor to mitigate defamation risk?  Why did I defend a deposition last week of a reporter attempting to keep his source confidential?  Why have reporters gone to prison in the United States to protect sources?  Why are some in Congress talking about doubling down on legal restrictions to stop leaks to the press?

The First Amendment is not absolute, and never has been, for anyone, whether they run a newspaper, a blog, or a search-and-advertising business. False and deceptive speech, as Google’s manipulated search results are alleged to be, falls outside the protection of the First Amendment.  Jon Leibowitz, chairman of the FTC, made precisely this point in an All Things Digital interview just this month, and he’s precisely right as a matter of constitutional law.  Otherwise, the FTC would have no jurisdiction to enforce privacy laws or laws against false advertising and deceptive trade practices.

Of course, non-deceptive speech also may be regulated in many circumstances.  The antitrust laws, which regulate commercial behavior to promote competition, are an example of laws that may permissibly restrict certain kinds of speech.  The plain fact is that “the First Amendment does not provide blanket protection to restraints of trade effectuated through speech,” in the words of the Department of Justice.  This principle has been applied consistently since the Supreme Court affirmed an antitrust judgment against the Associated Press in 1945, and remains the law today.

Google’s arguments that it is uniquely immune from antitrust liability, regardless of how it has abused its massive market share, remind me of the quaint musings of early Internet pioneers that law cannot apply in “cyberspace.”  But the same law that applies offline generally applies online (in the absence of online-specific legislation such as Section 230), and damage to competition that may occur on the Internet can destroy real businesses in the real world.  No one is above the law – not even Google.  Whether any of the allegations against Google can be proved, of course, remains to be seen.  But to assert at the very outset that the First Amendment actually “blocks” liability, regardless of what the FTC or a court might find, ignores the law.

If you’d like to read more, the Media Institute has graciously agreed to host my paper (available here) that addresses these issues in more depth.

                                  

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

Posted on By Richard T. Kaplar

DOL Reportedly Postponing New ‘Lock-up’ Policy

Published reports suggest that the Department of Labor is poised to delay implementation of a policy announced in April that would require reporters working in the DOL’s “lock-up” room to use government computers and transmission lines when writing stories about DOL reports and data as they’re released.  The proposed policy caused a flurry of criticism from media outlets and prompted a June 6 hearing by the House Oversight and Government Reform Committee.  DOL will announce a new start date this week, according to reports quoting an e-mail from DOL media specialist Carl Fillichio.

We’re glad to see that DOL is at least planning to postpone the policy.  Media Institute President Patrick Maines was an early and outspoken critic of this bureaucratic folly, questioning the wisdom of such a move in his May 7 post.

Let’s hope that any delay becomes permanent, and that this attempt to extend the government’s hand into reporters’ notebooks is forever banished to the dust heap of bad ideas. 

                              

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils. 

Posted on By Patrick Maines

Politico Accuses the Post and Times of Media Bias: Reporters Detect a Disturbance in the Force

Every once in a while something happens in medialand that stirs up reporters. The most recent example occurred last Thursday when the editors of Politico accused the Washington Post and the New York Times of bias in their coverage of the presidential campaign.

Under a headline that read, “To GOP, blatant bias in vetting,” the authors added their own commentary in ways that suggested that Republican critics of media coverage of the presidential campaign are right.

“Republicans cry ‘bias’ so often,” they wrote, “it feels like a campaign theme.  It is, largely because it fires up conservatives….  But it is also because it often rings true, even to people who don’t listen to Rush Limbaugh – or Haley Barbour.”

And with that, the dawn came up like thunder among those whose calling it is to resist journalistic apostasy whenever it rears its head. Take, for instance, one Devon Gordon, who writes for GQ (“Look Sharp/Live Smart”). Gordon wrote a piece whose thrust was nicely summed up in its title: “Five Points About Politico’s Hatchet Job on NYT and WaPo.”

Or how about John Cook who, writing in Gawker, began this way: “Megalomaniacal supervillain Jim Vandehei and emotionally hobbled robo-reporter Mike Allen, both of Politico, have penned a rugged endorsement of Mitt Romney’s chief grievance today, agreeing with his advisers that the press corps is busy ‘scaring up stories to undermine the introduction of Mitt Romney to the general election audience.’”

And lest we forget our friends from papers across the pond, there’s the Guardian’s Oliver Burkeman.  Digging deep into his reservoir of profundities, Burkeman relieved himself of this penetrating observation: “This is always the problem with the charge of ‘media bias’: for it to be valid, it would have to be the case that ‘not being biased’ were a viable alternative option, and it isn’t.”

And then there’s the Washington Post’s Erik Wemple.  In (at last count) six separate pieces on his blog, Wemple makes points like the following: (1) Politico is jealous that they didn’t develop the Post’s story about Romney’s alleged bullying in high school; (2) Politico itself gave lots of attention to the Post’s bullying story; and (3) Politico’s claim that the Post’s story was overdone fails to acknowledge that “Bullying (a) schoolmate by pinning him down and cutting his hair is not only illegal but hateful, violent and destructive."

And there it is. Never mind the well documented history of Republican unhappiness with the media, or the larger issue of media bias as perceived by about half the people in the country, and what that portends for the future of the commercial media. 

No matter that polling organizations like Harris Interactive and Pew established without any doubt in 2008 that Republicans overwhelmingly thought the media favored Obama over McCain (indeed, the Pew poll found that Democrats and Independents felt that way too), or that a Gallup poll published just last September found that 47% of the people think the media are too liberal (a number that rises to 75% when polling Republicans only), while just 13% think they are too conservative.

It is, apparently, one thing for such data to be reported in the charts and graphs of pollsters, or in the words of known or suspected Republicans, but another thing entirely for a member of the MSM to break ranks and criticize the media along the same lines.

                                   

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.