Author: Patrick Maines

Posted on By Patrick Maines

Keeping the Bluest of the Blues Alive

For those whose professional lives are spent in or around politics there is often a yearning for something that unifies.  This, because even at its best politics is a science of division, where people are separated – by class, philosophy, interest, geography – into voting blocs.

This yearning helps explain the extraordinary popularity, in Washington, of the Redskins, one of the very few interests in the nation’s capital around which people of every belief can and do rally.  Art is another such interest – where, that is, it is innocent of overt political manipulation.

So it is, for some of us, with blues music, the musical form created by African-Americans in the South in the late 1800s, and which has contributed so much to jazz, rhythm and blues, and rock and roll.

Reference is often made to particular genres or styles of blues music – such as the Delta, Piedmont, or Chicago blues – but in the opinion of one who has studied this matter closely, the reality is a little more complex.  The truth, according to Tim Duffy, is that the music played even by musicians who are said to be of a certain style is highly individualistic, a fact that takes on a special poignancy given the advanced age of so many of these musicians, many of whom have never even been recorded and who live, in their old age, in poverty.

In an effort to assist these people, and to preserve and promote their music, Duffy and his wife, Denise, formed the Music Maker Relief Foundation (MMRF) in 1994.  Sporting the motto, “keeping the bluest of the blues alive,” MMRF assists in myriad ways: by providing everyday living expenses for some, and by recording and arranging for promotional tours, here and abroad, for others.

A perfect example of what a national treasure is at stake can be found in the life and music of the late Etta Baker.  The woman whom NPR referred to as the “world’s premier Piedmont-style blues guitarist,” Baker played the guitar and banjo from age 3 until her death, a few years back, at 93.  Her skill and renown notwithstanding, it wasn’t until 1991, when Etta was 78, that her own first (authorized) recording was released.  You can listen to some of her works, available on the MMRF website, here.

On Oct. 15, The Media Institute will host its 18th annual Friends & Benefactors Awards Banquet.  As we always do on such occasions, we are going to recognize the good works of some people in government and the media.  But this year we are also going to salute the Music Maker Relief Foundation, for the role they play in advancing and preserving this uniquely American form of speech.

Posted on By Patrick Maines

Chairman Genachowski’s Modest Proposal re Net Neutrality

FCC Chairman Genachowski’s proposal to extend and codify the FCC’s “Internet principles,” delivered in a speech just yesterday, has already attracted a substantial amount of commentary.  There is no doubt that his proposed rulemaking will be the subject of much literature issuing from The Media Institute proper, and in this space as well, in days to come.

For now, however, just a few observations, in no particular order of importance: First, for those of us who take a perverse delight in the use and abuse of language in policymaking circles, there is much that is droll in the way that industry players have responded.  Like a man about to be executed, seizing on the offer of a last cigarette as a chance to spin or delay the inevitable, many of the broadband access providers’ comments seek to glom onto some part of the chairman’s proposal as will allow them to buy time.

Thus have several of the companies, and their associations, complimented the chairman for promising an "open proceeding" or some such.  Not to be smug, if we at The Media Institute were lobbyists we too would probably say such things.  Since, however, we are not, we can speak more plainly.

The reason this proposal has come into being, and will undoubtedly be passed in some form, is not because of some new threat (or old threat, for that matter) to the “free and open” Internet.  Rather like blaming, as someone once said, the Johnstown Flood on a leaky toilet in Altoona, the record of “abuse” by broadband providers is so inconsequential it doesn’t begin to explain the need for such an intrusion into the marketplace.

No, the reason this proposal is at hand is because of something more prosaic.  It is, would you believe, because of politics.  It is because there are now three Democrats on the Commission and only two Republicans.  (Some would argue that even during Kevin Martin’s reign there were three Democrats, but that’s another matter entirely.)

The best evidence that this is the case can be seen in comments from inside the FCC itself, specifically those of the Republican commissioners, McDowell and Baker.  Not only do they express skepticism about the wisdom of the proposed rulemaking, they openly question whether “factual and legal conclusions may have been drawn before the process has begun.”

Back in the day, at the dawn of the Internet, the concern was that the FCC not become the Federal Computer Commission.  That was then and this is now, but the concern that animated that sentiment survives.  It is that the government is a poor substitute for the marketplace in allocating resources.

Because Chairman Genachowski knows that the strongest criticism of his proposal is that it will frustrate investment and innovation in the broadband space, he looks to preempt the argument by denying it.  His plan, he says, amounts only to “rules of the road” that will actually stimulate investment and innovation.

Well, time will tell but the view from here is much less rosy.  The greater likelihood is that: (1) There will be less private sector investment than would otherwise be the case; (2) that the investments that are made will come from tech firms that employ a peculiarly large number of lobbyists; and (3) that when the dust settles, the only lasting impact will be in the legal precedent established by putting the camel’s nose of government under this particular tent.

Posted on By Patrick Maines

Citizens United and ‘Hillary: The Movie’

If you’re feeling, like so many of us, that our life and times are too harmonious, smart, and principled, you might welcome something completely jumbled, uninformed, and hypocritical.  If so, here’s just the thing: an article by E.J. Dionne of The Washington Post.

The subject of Dionne’s piece is a case — Citizens United v. FEC — scheduled for oral argument today in the Supreme Court.  Like so many when reporting this story, Dionne employs the journalistic equivalent of the magician’s trick of misdirection when telling his tale.

Thus does he direct the reader’s attention not to the specifics of the case itself — which is whether the execrable campaign finance laws (read: McCain-Feingold) can constitutionally suppress free speech, and political speech at that — but to the imaginary threat that, if decided wrongly, the case “could surrender control of our democracy to corporate interests.”

What, you might wonder, could cause such fear and trembling?  A plot by corporate giants to make every man, woman, and child read The Wealth of Nations?

Well, not if it’s the Citizens United case.  Because that case isn’t about a corporate giant, but rather a small nonprofit activist organization, and its “crime” was the production and would-be distribution of a political film, called “Hillary: The Movie.” 

Now you might not like this film (if you’re a fan of Hillary you definitely wouldn’t like it), but nothing could be clearer than that this is political speech, the kind that, outside the confines of the election laws, has always occupied the highest reaches of constitutional protection under the First Amendment.

Dionne’s misdirection technique also turns a blind eye to another interesting fact: The campaign finance laws that prevent the airing of issue ads x number of days before federal elections don’t apply to newspapers, but only to the broadcast media, cable and satellite included.

Call it cynical, but some might wonder if this fact helps explain the embrace of McCain-Feingold by so many newspaper columnists and editorialists, and newspaper publishers, for that matter.

One of the problems attending any attempt to create what our associate, Professor Larry Winer, refers to as a “unitary” First Amendment is that so many people on the front lines of this battle, like reporters, demonstrate little or no interest in defending the First Amendment rights of anyone but themselves.

Thus can one count on one hand the number of mainstream media reports that have been critical of campus speech codes, or any manner of political correctness– or the suppression of political speech, as demonstrated in Citizens United.

It’s not a pretty picture.

Posted on By Patrick Maines

The AP and Joshua Bernard

The decision made by the Associated Press to publish a photograph of a mortally wounded Marine in Afghanistan has been condemned by many, including the slain soldier’s family and Defense Secretary Robert Gates.

The photo itself is both horrifying and heart wrenching, as it shows Lance Corporal Joshua Bernard clinging to life as he lay in the mud, one leg completely severed and the other badly mangled, the result of a rocket-propelled grenade fired during a Taliban ambush.

Though the photo was taken on Aug. 14, the AP didn’t release it until Sept. 4, after the slain soldier’s burial, and after having shown several photos from the scene to Bernard’s family.

The view from here is that the AP did the right thing.  What, after all, do we imagine?  That when a U.S. soldier dies on foreign soil his passing is like that of a stateside family member, sedated against pain and surrounded by loved ones?

Lance Corporal Bernard paid a terrible price — the ultimate price — in service to his country, and for us not to be able to look his death in the face is not only cowardly and intellectually dishonest, it robs Bernard’s sacrifice of any meaning, as though he just wandered off peacefully somewhere, a quiescent statistic.

To express such an opinion is not to utter a single word either for or against the war in Afghanistan.  That is another issue.  Rather, the point here is that, when it comes to matters of life and death in direct consequence of government policy, we owe it to those in harm’s way, and to ourselves, not to sugar coat or sanitize the brutal results.

In recent months the AP has made some serious mistakes in judgment, most recently in the decision to distribute so-called “investigative news stories” paid for by nonprofit organizations with a political agenda.  But the decision to publish the photo of Joshua Bernard was not a mistake.  It was, instead, exactly right.

Posted on By Patrick Maines

The Washington Post’s Health Care Coverage: The Whole Megillah

The Washington Post published last Sunday what is probably their best piece ever about the health care debate.  The irony is that the story was written not by a Post reporter but by the newspaper’s ombudsman, and the thrust of his article was reader unhappiness with the superficiality of the paper’s coverage of this issue

As one of them put it, "’Your paper’s coverage continues in the "horse race" mode.  Who’s up, who’s down … political spin, personal political attacks.’"

Lamentably, the same could be said about much of the mainstream media’s coverage of health care, and not just of health care but of a range of public policy issues, particularly those with an important economic component.

Consider, for instance, the remarkable announcement that issued from the White House on Aug. 25.  The federal deficit, they said, would rise by $9 trillion during the 10-year period from 2010 to 2019.  This amounted to an increase of $2 trillion more than the White House had estimated as recently as February.

Now if, at the very moment that announcement was made, the entire West Wing had collapsed into rubble, and the head of the OMB been struck deaf and dumb, the news might have taken on a kind of visual impact both for the media, and for the rest of us.

But there were no visuals, and so the news was reported in much the same way that TV news anchors announce a jump in the pump price of unleaded.  It was big.  It was a number.  It was Yet Another Example of Mankind’s Fatal Flaws.  (The news anchor’s burden, you know, stories like these.)

In other words, it was nothing at all.  Nothing anyone could be expected to relate to or get a handle on.  Five minutes after hearing the news so reported, the only concern on most people’s minds was what they were having for dinner.

And who could blame them?  For most people a billion dollars is hard to imagine; a trillion is incomprehensible.  And that’s the very point.  The missing ingredient in media coverage of the health care debate, and of the nation’s fiscal policy, is not what the polls or pundits are saying.  Nor is it insight into how politicians plan to spin or parlay these issues to their advantage.

The missing ingredient is the economic impact.  How, for instance, will the government finance such large deficits?  What will the impact be on the credit markets?  On the U.S. dollar?  With the government commanding so much of the investing pie, will there be enough left over to fund private sector needs?  And if so, at what interest rates?

Assuming a constant velocity in their capacity for error, what’s to stop a deficit that is said to have risen 28 percent in the past six months from rising another 28 percent in the next six?

Similar questions mark the health care debate.  What’s the plan?  Is it to provide insurance for people who currently have none?  Or is it to put a brake on rising costs?  Can a plan that attempts to do both really be “deficit neutral"?  And if it’s not, what’s the downside to that?

In the same piece cited at the beginning of this note, the Post’s ombudsman links to an earlier story written by a former reporter.  Called “Myths About Health Care Around the World,” this article provides some useful, if not completely convincing, perspective on the health care debate.  The author points out that Medicare, after all, is a government-run program, but he also points to countries like Japan and Germany that have private insurance with private doctors and hospitals and very efficient systems.

Reading it, one gets the inkling of an idea that perhaps there is a route to meaningful and beneficial health care reform, but it’s unlikely to happen if the media, through their pursuit of "horse race" and politicized coverage of this issue (the Pew Foundation says 72 percent of the Post’s stories were of this sort), keep people in the dark about the important details.

That way lies nothing but anger, frustration, and contempt — first for the politicians but, just a short step behind, for the media as well.

The Washington Post’s ombudsman appears to understand that now.  When will the paper’s editors and reporters?

Posted on By Patrick Maines

Another Chance to Undo McCain-Feingold

 

A case scheduled for argument next month in the Supreme Court provides another opportunity to drive a stake through the heart of the worst part of the abominable campaign finance law, commonly referred to as McCain-Feingold.

The case (Citizens United vs. FEC), comes in the wake of an earlier Supreme Court decision carving out an as-applied exemption for “electioneering communications” (read: issue ads), save where the communication “is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”

Welcome as this exemption was and is, the problem, as explained nicely in an amicus brief filed on behalf of ten state broadcasters associations, is that because it requires speakers to make complex and risky decisions about the legality of these ads, the law has a chilling effect on speech.

This case would not have been necessary had the Court done the right thing in 2003, in McConnell vs. FEC, or in 2007, in Wisconsin Right to Life, and thrown out, for its facial unconstitutionality, the whole of the electioneering communications part of the law, Section 203.

In 2002 the Media Institute filed an amicus brief in McConnell, arguing that this aspect of the Bipartisan Campaign Reform Act was an impermissible restriction on political speech, and in 2007 we filed comments with the FEC, in company with the Thomas Jefferson Center.

Here’s hoping that the current case yields the eradication of this most offensive section of this  odious law.

 

Posted on By Patrick Maines

Rupert Murdoch and the Future of Journalism

It’s reported that Rupert Murdoch, chairman of News Corp., pledged last week that his company has plans to charge for the online news content of all its newspapers and television channels.  Though the announcement came with few details as to when the charges will commence or how they will be structured, the fact that it is Murdoch who is leading this campaign is hugely important.

This, because nobody is better equipped– by background, influence, knowledge, or constitution–to attempt such a move.

One of the most telling examples of Murdoch’s shrewdness and tenacity was put on display in 1986 when, as chronicled by his biographer, William Shawcross, he broke the Fleet Street print unions that went on strike against his plans to modernize his newspapers’ printing processes.  Against all odds the striking union members, 6,000 strong, were obliged to surrender a year later after it transpired that the company had built and secretly equipped a new printing plant for all of its British newspapers in the London district of Wapping.

If News Corp.’s plans fail it will send shock waves throughout the industry, but if it succeeds — that is, if its titles can generate sufficient revenue from access fees and advertising — Murdoch will be owed an enormous debt by newspaper publishers here and abroad.  They won’t pay that debt, and some, like The New York Times, are unlikely even to acknowledge it, but it is certain that many will follow his lead, as Murdoch himself claims.

That he is very much on their minds even now is shown in a remarkable story published yesterday (Sunday) in The Observer, sister paper of The Guardian in the UK, one of Murdoch’s biggest political and business adversaries.

The lead paragraph sums things up nicely: "Rupert  Murdoch is often cast as the villain of the newspaper trade, but having revitalized the Wall Street Journal and with his radical plans to charge for access to online papers, he could be the unlikely saviour of the beleaguered industry."

And what a relief that would be!  Because if professional journalism is to survive it will have to be paid for, and paid for handsomely.  And the only way to do that is by putting together a business plan that features at least two revenue streams.

Whatever the outcome, Murdoch’s plan provides a stark contrast with the naive and corrosive idea, entertained by some, that journalism can survive on a diet of investigative news stories issuing from nonprofits, "citizen journalism," and greater funding for public media.

Posted on By Patrick Maines

Dan Rather Has an Idea

According to stories in the Aspen Daily News and the Aspen Times, newspapers of record for the nation’s elite snowboarders, Dan Rather gave a speech at the Aspen Institute on Tuesday, asking that President Obama create a national commission to “save journalism.”

As one of the papers put it, without a skosh of irony, “Rather told an Aspen audience that journalism has declined to such a point that it is time for the government to intervene.”

Attributing the decline of "great American journalism" to “corporatization, politicization, and trivialization of the news,” Rather suggested that the commission “ought to make recommendations on saving journalism jobs and creating new business models to keep news organizations alive.”

"If we do nothing more than stand back and hope that innovation alone will solve this crisis," he said, "then our best-trained journalists will lose their jobs."

It’s not every day that one encounters such a rich vein of stuff.  Puts one in mind of the children’s illustrations that ask the question, what’s wrong with this picture?  So many upside-down daffodils and trees growing carrots.

First, you know, there’s the problem that some consider the author of this scheme himself to be a disgraced figure in the world of journalism, having lost his job at CBS for the role he played in the airing of a bogus report about President Bush.

Then there’s the (unintentionally) droll picture he conjures up of a presidential commission as a kind of jobs program for the rescue of threadbare journalists, and the linking of the employment status of some of them with the very survival of journalism itself.  

But the most grievous error — that aspect of the Jabberwocky that fairly leaps off the page — is the very suggestion that government is the solution to what ails the media today.  Make no mistake, there are governmental policies that could, and should, be changed (like, for instance, an end to the newspaper/broadcast cross ownership rules), but there is no need for a presidential commission or “media czar” for the purpose.

One would think that a former network anchorman would understand the peril inherent in any intervention by the government into the affairs of the press.  It is this, after all, that is the primary concern of the Speech Clause of the First Amendment.  What are the chances, for instance, that any such commission would use its mandate, and the media’s genuine agony, as cover to advance content regulations that parallel the commissioners’ political beliefs?

Speaking of his idea, Rather said that he was “throwing it out there for what it’s worth.”  Since the Aspen Institute charged $15 per ticket to this event, we know what they think it was worth, but I think admission should have been free.  It wouldn’t have improved the speech but the price would have been right.

Posted on By Patrick Maines

Filling the Open Seats at the FCC

Late Friday afternoon the Senate confirmed Mignon Clyburn and Meredith Baker to fill the last of the open seats at the FCC.  Though not yet sworn in as this note is being posted, it is assumed that both will be joining Michael Copps, Robert McDowell, and Julius Genachowski as commissioners within a few days.

We have not had an opportunity to work with Mignon Clyburn, but Meredith Baker is a favorite of ours.  In November of last year, while still with NTIA, Meredith gave a speech at a Media Institute luncheon.  She spoke of the digital transition and the First Amendment, as shown here, and demonstrated precisely why she’ll be such an asset to the FCC.

Our congratulations and best wishes to both of these accomplished women.

Posted on By Patrick Maines

Bad Prescription for the First Amendment

 

It’s a good thing the USA isn’t experiencing any financial or economic problems, because if we were someone might notice that plans being hatched in committees of both the House and Senate will hurt all kinds of American businesses—and trash the First Amendment in the process.

The plans that are the subject of this note would deny the pharmaceutical industry—a perennial whipping boy—the right, afforded every other for-profit corporation, to deduct for tax purposes their advertising and marketing expenses.

The upshot of it all? An immediate hit to advertising agencies and to the media, all of whom are struggling in an economy that is tanking, and to the profitability of pharmaceutical companies, thereby putting downward pressure on their dividends to shareholders.

The impetus behind these congressional schemes is the frantic search for additional tax revenue as might (but won’t) cover the extraordinary costs, estimated at $1 trillion, associated with health care “reform.”

Of special note in these parts is the breezy dismissal by their congressional authors of the unconstitutional aspects of such legislation. From early landmark cases, such as Virginia Pharmacy and Central Hudson, to the present day, the Supreme Court has accorded commercial speech, as it’s called, a significant and growing amount of constitutional protection under the First Amendment.

Never mind. As demonstrated time and again, lawmakers are inclined to pass legislation without regard to its constitutional infirmities, leaving it to the courts to sort things out. Sorry to say, they are aided in this by a press corps that has demonstrated little or no interest in protecting the First Amendment rights of anyone other than themselves. (See, for instance, the coverage of McCain-Feingold.)

So it is that there’s a certain irony in the effort now underway by a number of media companies to resist this legislation. Having failed for years to explain to their readers and viewers how and why commercial messages too are protected speech, they now find themselves in the unhappy position of having to pay for that neglect.

None of which is to say that this legislation is deserved or a good idea. It is neither. It is, instead, just more economic mush issuing from people who are neither informed nor principled.