Category: First Amendment

Posted on By Patrick Maines

Juan Williams and NPR

OK, so right off the bat let’s deal with what NPR’s firing of Juan Williams is, and what it is not.  It is a free speech issue, but it is not a First Amendment issue.  This is an important distinction because while many First Amendment issues involve freedom of speech, and many free speech issues involve the First Amendment, it is not the case that all free speech issues are First Amendment issues.

At bottom, the Speech Clause of the First Amendment is a proscription on what government can do to the media, not on what the media can do themselves.  As a practical matter what this means is that NPR’s management had the right to do what they did, and that, were this matter to go before a court, its resolution would not turn on First Amendment case law.

This said, the wisdom of the action taken, and what it suggests about the future of freedom of expression generally, are very much at issue here.

People of a certain age may remember the sad case of Jimmy (the Greek) Snyder, who was fired by CBS for some bizarre off-the-cuff comments he made about black athleticism while having a meal at a Washington restaurant.  Other similar cases are those of Don Imus, and more recently Helen Thomas and Rick Sanchez.

So while there are some important differences in these cases, we’re beginning to see a pattern here: When reporters and commentators say things that arguably offend minorities (and thereby disturb the politically correct equilibrium) they get fired.  And the question is whether this is the right, or even the intelligent, way to deal with such issues, especially for media companies?

It used to be believed that the best way to handle speech that is unfair or false was for more speech, not less, and by that measure a better way to have resolved many of these matters would have been for management to issue comments that mock, or directly challenge the falsities, in the offending comments.

Though the dust hasn’t even begun to settle, it’s already clear what many people, of varying political stripes, think of the way NPR has handled the Williams affair: They think it’s a disaster.  As Howard Kurtz, formerly of the Washington Post, put it in a Daily Beast piece: “His firing has backfired, handing FOX a victory and making Williams a symbol of liberal intolerance — on the very day NPR announced a grant from George Soros that it never should have accepted.”

Indeed, the Soros revelation, combined with Republican and (especially) conservative antipathy for taxpayer support of PBS and NPR, guarantee that the Williams flap is not going away any time soon.  As lamented here, there has been a coordinated and richly financed effort underway for months that has, as part of its aim, a substantial increase in government funding for public media generally, and that would oblige PBS member stations to redirect their news programs to more local coverage — the very thing that Soros’s contribution is designed to facilitate at NPR.

But that is a story that will play itself out in days to come.  Front and center now is the question of the impact of the Williams affair on NPR, in which regard it might be useful to examine a couple statements; the offending one, made by Williams, and another, made after his firing, by the president of NPR, Vivian Schiller.

Here’s Williams’s comment: “Look, Bill, I’m not a bigot.  But when I get on a plane, I got to tell you, if I see people who are in Muslim garb and I think, you know, they are identifying themselves first and foremost as Muslims, I get worried. I get nervous.”

And here’s Schiller’s: “Juan Williams should have kept his feelings about Muslims between himself and his psychiatrist or his publicist.”

Under pressure, Schiller later apologized for her remark, but going forward that may not mean much.  Put it this way, of these two comments which one do you think is the most mean-spirited and intemperate?  And of the acts at issue — Williams’s comments or his firing – which one do you think does more damage to NPR?

Yes, I think so too.

                                                                           

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

Posted on By Richard T. Kaplar

Free Speech: It’s Catching On

This week, Oct. 18 to 24, is National Freedom of Speech Week (NFSW).  The Media Institute created NFSW in 2005 in cooperation with the National Association of Broadcasters Education Foundation as a chance for groups and individuals to celebrate the free speech and press that we enjoy thanks to the First Amendment, which protects most speech from government censorship.

The event has grown every year as more organizations have joined the celebration.  This year, however, we have seen a real spike in participation.  Much of this has come from colleges and universities, where professors of communications and law, in particular, see NFSW as an opportunity to host debates and discussions on freedom of speech.

We’re also seeing a big jump in persons writing about National Freedom of Speech Week, and free speech generally.  Much of this is happening in blogs and tweets, as opposed to traditional news stories, by all sorts of people with all sorts of interests who have at least two things in common: They take full advantage of their ability to speak freely, and they generally do so through digital means of communication.

And this is precisely what National Freedom of Speech Week is meant to celebrate.  We are all speakers, and we all have the ability to speak our minds without fear of government censorship.  Many of our large Partnering Organizations are conducting innovative programs, contests, and activities to raise awareness of free speech.  We salute them – and we will do our best to compile a list of their activities to document NFSW 2010.  

In the meantime, we tip our First Amendment hat to the bloggers and tweeters who are using their digital devices to create a new and exciting dialogue about freedom of speech and the First Amendment.  Their free speech is truly the language of America.

The National Freedom of Speech Week website is at freespeechweek.org.   

Posted on By Patrick Maines

‘Citizens United and Its Critics’

The Yale Law Journal has just published online an article by Floyd Abrams.  In language that is stirring in the power of its logic and elegance, yet solemn as a wake, the famed constitutional lawyer writes of his dismay over the way so many scholars and journalists have treated the Supreme Court’s decision in Citizens United, which largely overturned the law commonly called McCain-Feingold.

Abrams is neither surprised nor disappointed that these critics didn’t like the decision; his despair stems from their failure even to acknowledge the most obvious First Amendment aspects of the case.  They have, he says, treated the ruling “as a desecration.”

Many people will review this article narrowly, in that they will focus their comments, pro and con, on the law and facts of the case at issue.  But I view it from a wider perspective.  I think it’s one of the grandest examples in recent memory of the courage that’s required these days to defend and promote free speech even-handedly.

More than this, I think it guarantees, if any such were needed, that Floyd Abrams will go down in history as the greatest First Amendment champion of our era.

In part it has to do with the gentleman’s style.  Far from engaging the critics with language (like their own) that vilifies, Abrams flatters some of them for their scholarship.  Rather than retreat to the safety of quiescence or worse, he calls out even such as The New York Times, his client in the celebrated Pentagon Papers case.  And rather than indulge in any sort of self-pity, Abrams doesn’t even mention the scurrilous attack on him (because he wrote an amicus brief in opposition to McCain-Feingold) by Keith Olbermann, who predicted that Abrams “will go down in history as the Quisling of freedom of speech in this country.”

Summing up the essence of his argument, Abrams writes: “When I think of Citizens United, I think of Citizens United.  I think of the political documentary it produced, one designed to persuade the public to reject a candidate for the presidency.  And I ask myself a question: If that’s not what the First Amendment is about, what is?”

But enough of this.  Abrams’s piece is so powerful that nothing I say can embellish it.

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

Posted on By Patrick Maines

Sen. Franken Opines on Net Neutrality (or Something)

There’s no intelligent life elsewhere in the universe, but chowderheads abound there.  We can infer this from the cosmologists’ predictions of Earth-like planets, and from the way our elected leaders demonstrate the density of Homo sapiens.

Take, for instance, Sen. Al Franken.  In an opinion piece written last week for CNN.com, the gentleman unburdens himself of what may be a record number of non sequiturs per column inch.  For those of you who’d like to judge this for yourself, here’s the whole of the thing as written.

For those who haven’t got the patience (and you know who you are), here’s an abridged version with commentary.

 “Our free speech rights,” says Al, “are under assault — not from the government but from corporations seeking to control the flow of information in America.”

(And what’s the evidence of that?)  “Telecommunications companies want to be able to set up a special high-speed lane just for the corporations that can pay for it.”

(And what has that got to do with our free speech rights?)  “Perhaps,” says Al, “those companies will discriminate based on whose political point of view conforms to their bottom line.”

(And what’s the evidence of that?)  “In the 1990s, Congress rescinded rules that prevented television networks from owning their own programming,” and afterwards the networks started favoring their own entertainment programs.

(And this is evidence that telecom companies will discriminate on the basis of non-conforming political views?)  With all these mergers “we’ll end up with a few megacorporations in control of the flow of information.”

(And so, Senator, what’s the moral here?)  “Net neutrality … it’s the most important First Amendment issue of our time.”

Posted on By Patrick Maines

Shedding Light on Title II and the First Amendment

Now that FCC Chairman Julius Genachowski has proposed what Broadcasting & Cable’s John Eggerton artfully calls a “Title II Lite” approach to broadband regulation, it’s a good time to take a second look (or maybe your first) at a recent paper by Robert Corn-Revere.

Bob wrote a Perspectives policy paper for The Media Institute titled “Defining Away the First Amendment,” which we released May 4.

This noted First Amendment attorney makes a crucial point – but a point that has not received adequate attention: “The FCC’s current ability to change the level of First Amendment protection for a medium simply by changing its regulatory definition is quite limited, if not nonexistent.”

Whoa, you mean there’s a First Amendment dimension to this reclassification debate?  You’d never know it by listening to the FCC, or to “net neutrality” supporters like Free Press.  Maybe that’s not surprising, since the First Amendment could very well prove an unwelcome stumbling block for Chairman Genachowski and his net-neutrality ilk.  Easier for them just to ignore it.

But, I would suggest to you, the First Amendment is far too important to ignore here.  In his issue paper, Bob Corn-Revere has shed some much-needed light on a pivotal concern that the FCC has tried to keep in the shadows.  Taking a “lite” approach to Title II reclassification doesn’t absolve the FCC of its constitutional obligations.  If anything, we need more “light” from Bob and others who are willing to hold the FCC accountable for the First Amendment ramifications of its regulatory agenda.

Posted on By Patrick Maines

The Intrinsic Menace in ‘Media Reform’

Christian theologians refer to the first three books of the New Testament as the synoptic gospels.  This, because of their similarities in content and order.  The new religion of “media reform,” whose principal tenet is that government needs to “save” journalism, is developing its own synoptic gospels – the gospel according to the Knight Foundation, Free Press, and just now rounding into view, the FCC.

For those who, until now, have enjoyed the luxury of knowing little about the handiwork of this threesome, a few words are in order:

The Knight Foundation (the vestigial remains of the defunct Knight-Ridder newspaper empire) is one of the country’s largest grant-giving foundations, with assets in the neighborhood of $2 billion.  Like Glenn Close in "Fatal Attraction" ("I won’t be ignored, Dan"), the Knight Foundation is not going away.

Through its gifts to educational and nonprofit organizations, the foundation funds journalism programs as its “signature work.”  It recently joined forces with the Aspen Institute to create the Knight Commission, the product of whose labor is the recently released report on the Information Needs of Communities in a Democracy (not to be confused with the information needs of community Democrats), an opus that, as reported here, is trivial and irrelevant, about 50-50.

Free Press is the absurd name of a paleoleftist organization that sees government influence over the media as a way to advance its larger political views, a point made both explicitly and inadvertently in the published opinions of the group’s founder and Maximum Leader, Professor Robert McChesney.  Free Press (or its lobbying arm, the Free Press Action Fund) convenes national “media reform” conferences; encourages laws and regulations that aim to increase the role of public media and reduce that of the commercial media; and coins amusingly infantile slogans like “Net neutrality: the First Amendment of the Internet.”

The FCC, of course, is the regulatory agency with sway over the affairs of the media, which, under chairman Julius Genachowski, has embarked on a number of “media reform” initiatives that parallel, if they aren’t in actual collaboration with, those of Free Press and the Knight Foundation.

Genachowski, for instance, was presented with a copy of the Knight Commission report at a publication ceremony at the Newseum, and in an interview with Broadcasting & Cable, the head of the FCC’s Future of Media initiative made explicit reference to the Knight Commission in answer to a question about what form his recommendations would take.

So what “media reform” policy positions do these organizations share?  As shown in their own comments or testimony, that of groups they fund, and/or that of others writing about them, at least three items can be identified.  They favor “net neutrality,” increased funding for public media, and an expanded role, through explicit tax breaks or other changes in the tax laws, for nonprofit organizations.

Looked at one at a time, and from a distance, none of these may seem like an unreasonable objective.  But taken together, and examined closely, they constitute a profound assault on some of our most cherished ideals about the media and its role in our national affairs.

Take “net neutrality,” for instance.  In both the literal and figurative sense of the term, network neutrality is the condition that obtains today.  Nobody is being favored or denied by ISPs of anything worth talking about.  But the proponents of net neutrality don’t want to leave well enough alone.  At the prospective cost of a reduced build-out of the broadband infrastructure (and the guaranteed intrusion of government into the affairs of the hitherto unregulated Internet), Free Press, the Knight Foundation, and the FCC want to codify and extend the Commission’s so-called Internet principles.

But by putting the camel’s nose of government under the tent of the Internet, codified net neutrality regulations would threaten the independence of the freest communications sector in the country, and thereby pose a direct challenge to both the letter and the spirit of the First Amendment, as well briefed by constitutional scholar Lawrence Tribe.

Proposals to change the tax laws so as to permit for-profit media companies to operate, in whole or in part, as nonprofits, or to explicitly authorize gifts to commercial media from nonprofit grant-giving foundations, or (as the Knight Commission recommends) to provide tax credits for investigative journalism, are similarly problematical.

As with net neutrality, the threat in amending the tax laws along these lines is that by doing so one lets the fox in the hen house.  How, for instance, would it be possible to insulate the media from charges of bias, and the concomitant threats to their tax-exempt status, when their political coverage offended one party or the other?  Might this not have the practical, if not the intended, effect of reducing the amount and kind of political coverage, like candidate endorsements?

Calls for greater funding of public media like NPR and PBS, through the Corporation for Public Broadcasting, are not so much constitutionally objectionable as they are ludicrously untimely.  Here we are as a nation, teetering on the brink of insolvency and with millions unemployed, and the recommendation is that we spend more taxpayer dollars on… public broadcasting?  Even without obliging PBS stations to commit suicide by requiring them to reorient their news programming toward local news (as all of the media reform advocates recommend), surely this idea is going nowhere soon.

Nor should it. News coverage by the public media in the United States represents a tiny, and because of that tolerable, adjunct to the vastly more important commercial media, whose independence from government is the sine qua non of its editorial independence.

Whatever one’s qualms or fears about the media of the future, the importance of independent (read: commercial) media is clear.  For this reason, the crisis in “medialand” is no cause to throw the baby out with the bath water, particularly where the “solutions” offered – like those of the media reform crowd – ignore decades of experience in the way the world works.

There are some people who understand this and some who don’t, but should.  An example of the former is FCC Commissioner McDowell who, in obvious discomfort by the direction the agency’s media initiative appears headed, has questioned the “constitutional, legal, and policy implications” of any government effort to “preserve or change journalism.”

Those who, in large numbers, do not get it include much of the “netroots nation” and progressives generally.  But here’s an exercise that might provide a cure for this.  Imagine a time, not too many years in the future, when the GOP controls the presidency, the House, and the Senate.  The Republican president has appointed a majority of the commissioners at the FTC and the FCC, and has, like all presidents, substantial influence with the independent agencies.

In this environment, how confident would progressives be that the Republicans would not attempt to use the FCC’s oversight of the Internet, as established through the years-earlier codification of net neutrality rules, or sway over the committees of Congress (and through it of the CPB), to influence the content of the media, commercial and public?

It is, of course, a rhetorical question.

First published here on The Huffington Post, Feb. 22, 2010.

Posted on By Patrick Maines

Citizens United and the Commentariat

Nothing’s quite so inspiring as the sight of journalists, in high dudgeon, trashing the First Amendment.  Such has been the rule since last Thursday, when the Supreme Court issued its opinion in the campaign finance case called Citizens United.

For the uninitiated, the cause of the hysteria, at places like The New York Times and The Washington Post, is the Court’s entirely correct decision to liberate political speech from the clutches of the Federal Election Commission, such that labor unions, for-profit and nonprofit corporations will hereafter be able to spend general funds on the placement of issue ads and other kinds of what the FEC refers to as “electioneering communications.”

Because campaign finance “reform” has always been a hotly politicized issue, it’s not surprising that politicians, from the White House to Congress, have weighed in on this issue with more heat than light.  But it’s something else again to see journalists – all of whom zealously guard and enjoy their own First Amendment rights – turn a blind eye to those same rights where they’re someone else’s.

The journalists’ criticism of the Court’s decision is (1) that it is unnecessarily overbroad; and (2) that it will allow corporations (by which they mean large for-profit corporations) to dominate the political environment by the fact, or threat, of campaign advertising.

Even if one takes these journalists at their word – that their motive is a value-free concern for the political process rather than a tawdry reflection of their own political biases – we can say without fear of contradiction that, at least in this regard, they value the political process more than they value free speech.

Among the citizenry generally, such sentiments would be neither unexpected nor especially hurtful, but when they issue from journalists they are both.  This, because as people who are professionally engaged in such matters know, the Speech Clause of the First Amendment is not divisible by its applications.  It doesn’t apply just to the print media or broadcasting, news or entertainment, professional journalists or people at large, but to all of these and then some.

And the simple truth is that if you weaken the First Amendment in any area you weaken the whole of it.  This comes about because of the way that precedent is applied, not just in the courts but in policymaking venues as well.

Corporations enjoy constitutionally protected speech rights even where the speech in question is just commercial speech (speech that does no more than propose a commercial transaction.)  There’s no question about this.  There is lots of case law, most notably in Central Hudson.  Given this, how much greater is the value, under the Constitution, of their political speech?

The constitutional weakness in the journalists’ criticism of Citizens United to one side, they are also wrong on its political effects.  Corporations, particularly large and publicly owned corporations, are loath to spend their general funds on election campaigns.  This, because they know that, by doing so, they will inevitably attract criticism from some of their stockholders, and from the disfavored party and candidate(s), in any given election.  Corporations much prefer to stay out of election contests, and to allocate even their PAC money to incumbents, or to both incumbents and challengers.

And what if, despite the general aversion, it sometimes happens that corporations do spend general funds on election campaigns?  Given their reluctance to get involved in this way, perhaps the public ought to hear what they have to say.  It’s not, after all, as though such corporations are without their constituencies.

Indeed, when you consider the vast number of stakeholders that any large company has among its employees, stockholders, vendors, and customers, the company’s views are vastly more representative and diverse than those, say, of the editorial board of The New York Times.

As for the argument that the Supreme Court overreached in this case, a couple of observations.  First, while a number of commentators are now saying that the Court should have allowed the Citizens United film ("Hilary: The Movie") to be broadcast without going further, that’s a point they didn’t make before the decision came down.

Much more importantly, this criticism ignores the history of this case, most importantly oral argument when it first came before the Court, on March 24 of last year.  It was at that time that the government, which was there to defend McCain-Feingold in the person of deputy solicitor general Malcolm Stewart, inadvertently spelled out just how speech-killing our campaign-finance system might be.

Asked by Justice Alito if the government believed McCain-Feingold would permit like restrictions were the product distributed on the Internet, or as a DVD or a book, Stewart responded that it could be applied to all of those, that it could even require banning a book that made the same points.

As Bradley Smith, writing in National Affairs, put it:

There was an audible gasp in the courtroom.  Then Justice Alito spoke, it seemed, for the entire audience: ‘That’s pretty incredible.’  By the time Stewart’s turn at the podium was over he had told Justice Anthony Kennedy that the government could restrict the distribution of books through Amazon’s digital book reader, Kindle; responded to Justice David Souter that the government could prevent a union from hiring a writer to author a political book; and conceded to Chief Justice John Roberts that a corporate publisher could be prohibited from publishing a 500-page book if it contained even one line of candidate advocacy.

In other words, it wasn’t until after they had heard this – straight from the horse’s mouth as it were – that the Court issued, in June, its surprising order that the case be reargued and expanded to include two of the Court’s earlier rulings.

Viewed from a First Amendment perspective, McCain-Feingold was the worst piece of legislation ever enacted and subsequently upheld as constitutional.  That so many journalists are unhappy with its undoing is a black mark on their profession and on them as individuals.

First published here on The Huffington Post, Jan. 26, 2010.

Posted on By Patrick Maines

Net Neutrality in Retreat?

If you’re a “net neutrality” critic, and dabble in schadenfreude, things are looking up!  First, there was oral argument in the D.C. Circuit Court of Appeals (Comcast v. FCC), during which the panel clearly appeared to reject the notion that the FCC had authority to pursue its ambitions in this regard.

Then, just last week, there was the White Paper filed at the FCC on behalf of Time Warner Cable by constitutional scholar Laurence Tribe, arguing that net neutrality as proposed is likely unconstitutional under the First Amendment.

Last but not least is the report, debated but out there, that the Administration is cooling on net neutrality because it fears that it might depress the amount of capital the private sector invests in broadband deployment — an argument also made here — thereby defeating the goal of ubiquitous broadband access and stunting job growth as well.

One can only imagine the anguish such a turn would engender in the net neutrality crowd.  A conflict between Free Press and the Administration?  How could they reconcile it?  What manner of prose could they summon to express their innermost feelings?  The “vituperative retreat” perhaps, or maybe something more stylish, like an Olbermannesque commentary.  Perhaps they’d initiate, simultaneously, 100 diary threads on DailyKos.

Well, we don’t know for sure but we can dream.  What we do know is that Chairman Genachowski’s plan of extending and codifying the FCC’s "Internet principles,” announced with such confident fanfare not so long ago, is now coming under heavy fire from lots of quarters.

Laurence Tribe’s brief is particularly noteworthy, both for its line of argument and for the road map it lays out for a court challenge on constitutional grounds, should net neutrality be formally adopted.  To quote just one of several poignant passages therein:

Net neutrality proposals rest on the mistaken premise that the constitution gives the government a role in ensuring that the voices of various speakers receive equivalent attention and that audiences receive equal access to all speakers.  In fact, a central purpose of the First Amendment is to prevent the government from making just such choices about private speech, including decisions about what amount of any given kind of speech is optimal.

That Tribe was an active supporter of the candidacy of President Barack Obama, and served as a judicial adviser to Obama’s campaign, suggests that he has the Administration’s ear on such matters.  This, coupled with speculation about the reason for the departure of Susan Crawford, a strong proponent of net neutrality, lends weight to the notion that the Administration may be reconsidering its erstwhile support of net neutrality regulation.

If so it would just be another example, as H.L. Mencken put it, that for every complex problem there is an answer that is clear, simple, and wrong.

Posted on By Patrick Maines

Media ‘Reform’ and the First Amendment

Despite their general lack of experience or expertise in law, commerce, finance, or technology, people with journalistic backgrounds are these days testifying before Congress and regulatory agencies, sponsoring seminars, and writing papers in a broadly coordinated effort to influence laws and regulations that govern the media.

They are doing this, they say, out of a concern for the “future of journalism,” but to the extent that policymakers act on the journalists’ recommendations they may do damage to the commercial media, old and new, and great violence to the First Amendment.

For the most part, journalists’ understanding of and support for the First Amendment is limited to their parochial interests.  They want access to government information, protection from libel laws, and the right not to have to reveal their sources.

As it happens, all of those things are of benefit not just to journalists but also to the news-consuming public, which is why legislation creating a federal shield law for reporters, to give one example, is a good idea.  But the point remains: Reporters and the commentariat generally have a very blinkered view of the scope of the Speech Clause of the First Amendment.

This explains why journalists report and opine so infrequently on the myriad First Amendment issues that impact people and institutions other than themselves.  Things, for instance, like commercial speech.

State and federal courts, including the Supreme Court, have adjudicated many cases wherein they have ruled that advertising and other kinds of promotional speech is entitled to First Amendment protection, but these cases are rarely covered, other than in the media trade press, to any significant degree.

In similar fashion reporters – aside from such notable exceptions as George Will – have raised very few objections, along First Amendment or any other lines, to the speech-curtailing aspects of so-called campaign finance reform, as in McCain-Feingold’s restrictions on issue ads.

Nor have they objected much to the “speech codes” that have been implemented on so many college campuses, or to the right of government to regulate the media in ways, as with some of the broadcasters’ “public interest” obligations, where such regulations have the practical effect of undermining the broadcasters’ editorial freedom.

As with commercial speech, all of these issues implicate the First Amendment, and all have been considered by the courts as such issues, but not to the interest or concern of many reporters.

Given this track record it’s shocking but not surprising, as the saying goes, that journalists are these days recommending so many ill-considered ways that government might “save” or “restructure” American journalism.

There are a number of examples of this trend, like Dan Rather’s embarrassing speech last year at an Aspen Institute symposium, where he asked President Obama to create a government commission to “save journalism,” or the recommendations of the risibly clueless Knight Commission, with its recent call for a “federal tax credit for the support of investigative journalism” and creation of a “Geek Corps for Local Democracy.”

But the mother lode of the literature in promotion of this unfortunate movement is a lengthy piece published last year in the Columbia Journalism Review.  Titled “The Reconstruction of American Journalism,” the article was co-authored by Michael Schudson, a Columbia University journalism professor, and Leonard Downie, Jr., the former executive editor of The Washington Post.

Among their recommendations:

  • The IRS should explicitly authorize news organizations to be created or converted into nonprofit entities, regardless of their mix of financial support, including advertising.
  • Public radio and television should receive increased funding from the Corporation for Public Broadcasting, for which their programming should be “substantially reoriented” so as to provide significant local news reporting.
  • The FCC should create a “Fund for Local News” with money the Commission collects from fees imposed on broadcasters, telecom users, and/or Internet service providers, said funds to be distributed through grants from “Local News Fund Councils” to news organizations (commercial and nonprofit alike) that propose “worthy initiatives in local news reporting.”

Breathtaking.  And it begs the question: Is it too much to ask that a professor of journalism, and the former executive editor of a leading U.S. newspaper, have some understanding of the crucial need for a separation of government and the press?  Does it not occur to either of these gentlemen that it’s insufficient just to give lip service to that concept?

Though we live during a time when journalists spend more time reporting on corporate rather than governmental malfeasance, the greatest value of a free press is in its check on government.  The marketplace, after all, provides some control on the conduct of corporations (and particularly so where government regulators aren’t in bed with them) but without an independent and credible press there really is no check on government.

Journalists often speak, and wisely so, of “following the money trail.”  It’s a good practice, and one that immediately illuminates the profound error in any scheme that proposes to deliver funding from the government to the media.  It’s really pretty simple.  Where the media do not receive government funding – directly or indirectly – they are free to speak critically of the government without fear of a loss of revenue, a condition that is undone if they do receive funding.

Apart from the long-term effects, the mechanics of doling out government assistance itself invites abuse.  Take, for instance, the idea of taxpayer funds being funneled to the commercial press through the Orwellian-sounding “Local News Fund Councils.”  What kind of people, you might ask, would be appointed to serve on such councils?  The authors recommend journalists (?), educators, and diverse “community leaders.”  In practice what this would mean is a veritable Noah’s Ark of single-issue and special-interest groups (all of which would call themselves public interest groups) with strong political connections.  And woe to those would-be grant recipients who failed to successfully run the PC gauntlet laid down by this crew.

And what about those who did receive funding?  Well if, for instance, they happened to be broadcasters they could look forward to the day when their “Local News Fund Councils” hooked up to compare notes with their “Community Advisory Boards,” as some at the FCC are proposing be created.  Wouldn’t that be a great idea?  Democracy in action.

The headlines on some news stories suggest that schemes like these have appeal not just to “media reformers,” but to the very people that free press advocates should fear most: politicians.  Thus, from Reuters, this recent nugget: “Gov’t Will Need to Help Shape U.S. Media: Rep. Waxman”; and from Broadcasting & Cable: “FTC Will Team With FCC To Vet Journalism’s Future.”

Speaking before an FTC workshop in December, Rupert Murdoch made some remarks that ought to resonate with journalism professors and former editors.  Here is part of what he said:

“The future of journalism is more promising than ever – limited only by editors and producers unwilling to fight for their readers and viewers, or government using its heavy hand either to over-regulate us or subsidize us….

“In my view, the growing drumbeat for government assistance for newspapers is as alarming as overregulation.  One idea gaining in popularity is providing taxpayer funds for journalists.  Or giving newspapers ‘nonprofit status’ – in exchange, of course, for papers giving up their right to endorse political candidates….

“The prospect of the U.S. government becoming directly involved in commercial journalism ought to be chilling for anyone who cares about freedom of speech.”

Bad as the Schudson-Downie opus is on First Amendment grounds – and this is its worst aspect, to be sure – there are other problems, most importantly the commercial impact government subsidies would have on unsubsidized news organizations, whether old or new, that had to compete for readers, viewers, and advertisers with those who were subsidized, either directly or through tax breaks of one kind or another.

An example of this problem could arise in the prospects after launch of what is called mobile TV, or mobile DTV.  Made possible in part by broadcasters’ conversion from analog to digital transmission, the mobile TV service about to be test-marketed in Washington, D.C., will likely be free and interactive.

Consumer electronics companies and broadcasters, who are the principal players in the development of the technology, believe there may be a $2-billion market for it, gained through advertising.  If so, those funds would be helpful to an industry that has been reeling from the combined effects of the disastrous economy and competition from the Internet.

So here we have an industry – whose declining fortunes, along with those of newspapers, are most often cited as the reason for government to lend a hand – working to find a way to grow and prosper, without taxpayer dollars or other subsidies, as independent sources of news.

But standing on the sidelines are current and former journalists, and their financial enablers in the grant-making world, proposing to erect a national system as would invite competition from taxpayer-subsidized companies that would be crucially dependent on the goodwill of their governmental patrons.  Such is the idealism of journalism reformers and “reconstructors.”

Their perfunctory acknowledgment of the need to be wary of government funding notwithstanding (Schudson and Downie admit that “political pressure has played a role at times in the history of the arts and humanities endowments”), they show themselves to be pretty adept at knowing how to apply that pressure themselves.

Toward the end of their recommendation about the need for PBS to reorient its programming toward local news (through “significantly increased” appropriations for CPB), the authors write this: “The CPB should encourage changes in the leadership of public stations that are not capable of reorienting their missions.”

So in other words the plan here is that, if PBS stations won’t voluntarily submit to the kind of local news programming that Schudson and Downie want to see, the CPB should use its control over the purse strings to oust the management of those stations.

Yes, just so.  That’s it exactly.

First published here on The Huffington Post, Jan. 12, 2010.

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Posted on By Richard T. Kaplar

Net Neutrality: Whose First Amendment?

It shouldn’t come as any great revelation that when the government proposes regulations affecting the media, there very well might be implications for the First Amendment.  Raising such concerns, and then examining their validity, is a normal part of the regulatory process.

Kyle McSlarrow did just that last Wednesday in a speech to a Media Institute luncheon audience.  As president and CEO of the National Cable & Telecommunications Association,  McSlarrow was rightly concerned that the FCC’s proposed regulatory enforcement of “net neutrality” would impair the First Amendment rights of Internet service providers, especially to the extent that they offer other types of programming services apart from Internet access.  He also noted that such rules could impair the free speech of start-up content providers who are willing to pay extra for priority distribution of their content to better compete with established entities, and for others who use the Internet.  

The response to McSlarrow’s speech by many proponents of net neutrality regulation was nothing short of remarkable for its rancor.

The underlying assumption of this net neutrality crowd and their ilk was the tired old mantra: Big media are bad.  Corporations are bad.  Corporations don’t deserve First Amendment rights.  The bloggers from this camp (including a former Free Press lawyer) seemed at once incredulous and offended that anyone (except maybe Washington lobbyists) could assert with a straight face that media companies are speakers with First Amendment rights.  

The other underlying assumption involves the revisionist view that the First Amendment is a tool the government has an obligation to use affirmatively to promote diversity of speech, rather than what it was created to be: a protection against government censorship of speech.

It would be bad enough if the reactions to McSlarrow’s speech suffered only from flawed assumptions like these.  That wouldn’t even be so terrible, because one can always challenge another’s assumptions and hope to engage in something resembling a serious debate.

It’s possible to do that, for example, with the response offered by the ACLU, which noted that ISPs do have First Amendment rights when they’re providing their own content, but should function as common carriers (like phone companies) when they’re carrying the content of others.  Whether tiered pricing for different levels of service amounts to discrimination and implicates free speech is at least something that can be debated.    

But the level of vitriol is running so high among many in the net neutrality crowd that some writers are totally twisting what McSlarrow said, and attributing to him words he never uttered and positions he never (and I believe would never) take.  For example, blogger Marvin Ammori (with the Free Press connections) wrote: “According to the NCTA’s Kyle McSlarrow … Americans (like you) don’t have rights to access or upload content on the Internet.”  FALSE.  McSlarrow never said any such thing.  Ammori calls McSlarrow’s reasoning “silly” and “offensive.”  But if anything is silly and offensive, it is Ammori’s fabrications.  

One is reminded of the Cold War, when the Soviet propaganda machine excelled at “disinformation” – false information which, if repeated enough and eventually picked up by a credible outlet, would be regarded as true.  Ordinarily I wouldn’t bother commenting on the more egregious responses to McSlarrow’s speech, because they’re just not worthy of serious comment.  But I’m taking the time because so much of what has been written needs to be identified for what it is – disinformation – that will only stifle meaningful debate and do a disservice to the First Amendment.   

And while we’re talking about this constitutional guarantee, let’s not forget the big picture, which can easily become obscured by the details (and heat) of the moment.  Do we really want the FCC regulating a whole new realm – the Internet – which heretofore has been a safe haven for free speech?  Virtually everyone in the net neutrality camp seems to think this is a great idea.  I do not.  In fact, I think it’s a terrible idea.  For speech to be truly free, government regulators should be kept as far away as possible, whatever the medium.  Maybe this is where the real debate over net neutrality and the First Amendment should focus.