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Posted on By Patrick Maines

‘Breaking Bad’: An Appreciation

Every once in awhile something happens in medialand that elevates and refreshes, and at least partially reclaims the enormous potential of the industry.  Media coverage of the events of 9/11 is one example, and the minor miracle that is AMC’s series "Breaking Bad" is another.

For the uninitiated, who unfortunately are legion, "Breaking Bad" is the story of Walter White, a high school chemistry teacher who, discovering that he has late-stage lung cancer, embarks on a career as a methamphetamine producer.

As measured by the awards, which already include a Peabody and two Emmys, and by the reviews, "BB" has already established itself as perhaps the best show on television.  The writing, acting, directing, and camera work are achingly good.  Unlike the X-rated products that are consumed by people with the emotional maturity of children, whatever their age, "Breaking Bad" really is adult entertainment.

In this brilliant series human beings are complex, neither all good nor all bad, itself a kind of challenge to a world immersed in the poses and pieties of political correctness.  And then there’s the subtlety of it; the communication, with no more than a look or a word, of a world of meaning. 

But the best is the essential humanity of the production — the notion that, no matter how unequal our circumstances, we are essentially the same, and capable of great understanding and empathy.  How else to explain the poignant and touching relationship between Walter and Jesse, Walt’s wayward former student and now partner in crime?

Because of the way the series ended its second season — and because the producer (Vince Gilligan) has told us so — we know that "BB" will be back for a third year, a fact that virtually guarantees more awards and critical acclaim.  And that’s all to the good.  But there are aspects of this phenomenon that invite some further comment that go not to art but to the lesser realms of politics and commerce.

One such observation is the folly of trying to enforce content standards on TV fare where no account is given to the context in which certain words or pictures are used.  "Breaking Bad" features a number of words, and acts of violence, which by themselves might offend some people.  But where, as here, such things are employed not to titillate but to deepen and extend the reality of the experience, one would think many people might see what a mistake it is to allow any kind of governmental censoring scheme that is blind to such distinctions.

The commercial aspect of this show that rankles a bit is the fact of its distribution by American Movie Classics (AMC), owned by Rainbow Media Holdings, itself a subsidiary of the cable operator, Cablevision Systems.  Which is not to say anything derogatory about AMC.  Far from it, the network, and all involved, should be enormously proud of what they’re delivering.  (Which, by the way, also includes the terrific original series, "Mad Men.")

But why, one wonders, isn’t "Breaking Bad" being shown on one of the bigger cable networks, or indeed on one of the broadcast networks?  Kind of hard to imagine that AMC was the producer’s first choice when, were the show being aired on USA or TNT — not to mention, say, ABC — the audience would likely be orders of magnitude larger.  One assumes it may have something to do with the very qualities that make the show so rewarding —that  it’s seen as too smart or sophisticated for a mass audience. 

If so, that’s a shame, both for the country and for the industry, and something that’s being noted.  As Tim Goodman, TV critic for the San Francisco Chronicle and enthusiastic fan of the series, put it: “It’s like I’ve been freed from the tyranny of network programming.” 

Posted on By Richard T. Kaplar

Leave PBS Stations Alone

Since 1985, the Public Broadcasting Service (PBS) has had a policy on the books stating that its member stations must offer a “nonsectarian, nonpolitical, noncommercial educational program service.”

It might be going a bit far to say that PBS has “adhered” to the policy.  Member stations routinely air presidential debates and weekly shows like “Washington in Review” that are nothing if not political.  The “enhanced underwriting credits” for big program funders like Boeing and Lockheed Martin look suspiciously like slick network TV commercials.   

And being British isn’t enough to make shows like “Are You Being Served?” and “As Time Goes By” educational.  Moreover, a handful of smaller stations run sectarian programs that include Catholic Masses and Mormon worship services.

Now, however, the PBS board is considering a revision to its so-called “Three Nons” policy that could force local religious programming off the airwaves of PBS member stations, or force those stations to give up their PBS membership.

A change in policy would likely affect stations like WLAE in New Orleans, which has aired a Sunday Mass since 1984, and Brigham Young University’s KBYU in Provo that carries Mormon worship services.

The proposed policy change is a bad idea.  A PBS committee “believes that if PBS or its Member Stations were perceived by the public to be ‘commercial,’ ‘political,’ or ‘sectarian,’ PBS could be hampered in its ability to carry out its mission.”  

Wait a minute – PBS seems to be carrying out its mission just fine with its members’ current mix of programming that includes all of the above.  

So why single out sectarian programming?  Some might argue that there should be a strict separation of church and state, since PBS member stations receive some funding from the federal government’s Corporation for Public Broadcasting, either directly or through PBS.  

But one need look no further than the FCC, which regulates both noncommercial and commercial broadcasting, to diffuse that argument.  As far back as 1929, the agency (then the Federal Radio Commission) said that broadcast licensees would meet their “public interest” obligations by offering a “well-rounded” mix of programming that included “religion, education and instruction.”  In a 1946 report, the FCC said it expected broadcasters to make free time available to “religious, civic, agricultural, labor, and educational groups.”

The FCC strayed from that policy briefly in 1999, when it issued a ruling that would have banned religious exhortation, proselytizing, and personal expressions of religious belief.  The resulting firestorm was so fierce (including the swift introduction of several bills in Congress) that the FCC deleted the provision a mere month later.

PBS should take its lead from the FCC.  PBS would do well to respect the local character of its member stations, and allow those stations to meet the needs of their audiences without injecting an anti-religion bias.

As it is, public broadcasting in this country is a strange and unlikely amalgam of governmental and private interests, with stations licensed to state and local governments, public and private universities, and even religious groups.  Its fragile equilibrium could easily be disrupted – say, by an untoward policy change.

Changing the “Three Nons” policy as proposed will accomplish nothing positive.  On the contrary, quite likely it will cause a firestorm of its own that might well ignite the now-simmering debate about the very existence of PBS, and whether a broadcasting system that receives even minimal government funding is still a good or necessary idea in this age of media abundance.    

Posted on By Patrick Maines

Whither Journalism? Part II

If journalism of a satisfactory depth, independence, and scale is going to survive, it will have to be produced by professional journalists employed by profit-making organizations.  As such it will require revenue streams that are sufficient for the purpose.  As a practical matter this means that newspapers will have to find ways of getting paid for access to their online content.  Advertising by itself will not do the trick.

But given the growing number of bloggers, citizen journalists, and news aggregating sites who specialize in opinion pieces (RealClearPolitics, Huffington Post, Drudge) there is a real question of how professional journalists can distinguish themselves from the rest of their online competition.

The view from here is that the question answers itself.  Professional news organizations, newspapers especially, should rid their online news pages of opinion and concentrate instead on the production of news and feature stories that run deep and straight down the middle.

Unfortunately this is the precise opposite of what is in vogue today, with media organizations like Newsweek and even the Associated Press moving in the direction of more rather than less opinion in their news stories.  It’s a mistake.

Opinion is the cheapest commodity in the world, precisely because everybody has one.  No need for inside or expert sources, for special expertise in the subject matter, or even for any real writing ability.  Opinion gains recognition in direct proportion to the extravagance of its expression.  As such, opinion is the “killer app” not of newspapers but of the blogosphere, which is why a site as undistinguished as Daily Kos attracts such a large number of visitors.

The problem for newspapers is compounded when the opinions they express in their news and editorial pages are too one-sided politically.  To give one example, the New York Times, which is losing paid circulation at a ferocious pace, reads these days very much like a house organ in its support of the Democratic party and policies.

To believe that this is not spotted, and resented, by people who are, say, Republicans or conservatives, is an exercise in self-delusion.  Even if one wants to argue that Republicans and conservatives are not in the majority today, they represent a very large minority for any business needing to sell itself to the public at large.

In any case, the main point is that newspapers and other professional news organizations should concentrate on doing those things, like in-depth and objective coverage of domestic and foreign affairs, which neither the news aggregators nor the bloggers have the talent or resources to do themselves.

Whatever their future revenue streams — from advertising and micropayments or walled content — it’s going to be necessary for the “mainstream media” to finds ways of distinguishing themselves from their online competitors.  One way of doing that would be to practice first-rate journalism and rigorous objectivity in the reporting and analysis of the news.

Posted on By Patrick Maines

Whither Journalism? Part I

As evidenced by recent hearings in the House and Senate, the future of journalism is attracting a lot of attention these days.  And why not?  Hardly a week goes by without news of the shutdown, bankruptcy reorganization, or downsizing of a daily newspaper somewhere.  And pretty much everyone seems to agree that newspapers are the “gold standard” among journalism organizations.

Journalists themselves have been dedicating large quantities of ink to the subject.  But like the witnesses at the congressional hearings, the prescriptions of journalists are as notable for what they don’t recommend as for what they do.

Actually, journalists aren’t recommending much of anything.  For the most part they content themselves with finger-wagging diatribes under headlines that read like draft obituaries.  Stories, for instance, like Howard Kurtz’s in the Washington Post (The Death of Print?) in which it’s argued that the blame belongs with the Internet and unimaginative and slow-footed management.  Or Frank Rich in the New York Times (The American Press on Suicide Watch), whose villain is an ungrateful public which “thinks nothing of spending money for texting or pornography” but is unwilling to shell out for … the opinions of Frank Rich?

And then, of course, there are the ideological opportunists, like John Nichols of The Nation (David Simon, Arianna Huffington and the Future of Journalism) who, true to his “class warrior” conceits, sums things up this way: “There will be time for the debate about solutions.  For now, it is not just useful but necessary to be clear about the cause of the crisis in journalism….  It wasn’t the Internet.  It wasn’t the current economic downturn.  It was a lousy ownership model that saw civic and democratic values replaced by the rapacious greed and commercial calculations of big media companies.”

Well, enough of this.  Let’s consider some solutions, and one very bad idea that is being offered up as a solution.

To take the bad idea first, the granting of nonprofit status to newspaper publishers makes no sense from either a journalistic or a business point of view.  Looked at journalistically, such a development would lead inexorably to challenges of these companies’ nonprofit status by governmental or private parties who would allege political partisanship.  Sooner or later these challenges would find traction, either in the courts, Congress, or in media boardrooms, thereby compromising the papers’ very reason for being.

As a business proposition, nonprofit status seems even more bizarre.  After all, the papers that are most notably failing today aren’t the work of mom-and-pop organizations.  They’re the products of the biggest companies in the industry, like Hearst, McClatchy, Gannett, and the Tribune Company — all of which are not only private, for-profit companies, but publicly owned companies (save for Tribune) at that.  How would the shareholders (or creditors) of any of them fare in such an arrangement?

Posted on By Richard T. Kaplar

Back to Square One

Two of the Supreme Court’s decisions most awaited by First Amendment advocates this term have landed with a thud.  Or maybe a whimper.  But certainly not with a bang.

On April 28, the Court upheld the FCC’s power to implement a tougher policy against so-called “fleeting expletives” on live television.  This was the Second Circuit’s case involving profanities uttered by Nicole Richie and Cher during music-awards shows in 2002 and 2003.

The other shoe dropped today when the High Court considered the Third Circuit’s case involving Janet Jackson’s “wardrobe malfunction” during the 2004 Super Bowl halftime show.  The Supreme Court told the appeals court to consider reinstating the FCC’s $550,000 fine against CBS.  

In both cases the High Court skirted the constitutional question of whether the FCC’s content controls run afoul of the First Amendment.  Last week’s profanity decision, for instance, was decided on procedural grounds (upholding the FCC’s right to change its indecency policy) and only then by a slim 5-to-4 vote.

In both cases too, the courts of appeal had sided with the networks and against the FCC.  The First Amendment question will now most likely be addressed specifically at that appellate level and, one hopes, make its way back to the High Court for a definitive ruling.  

We know that the Supreme Court avoids reaching constitutional questions when a case can be decided on other grounds.  That’s exactly what happened here, so it shouldn’t come as a surprise.  But it’s still a disappointment.

On a bright note, however, Justice Clarence Thomas said in a dissent that he thinks it’s about time to reconsider the two cases at the heart of broadcast regulation: Red Lion, which creates a lower standard of First Amendment protection for broadcasters; and Pacifica, which turns on the FCC’s authority to regulate “indecent” broadcast fare.

The openness of Justice Thomas is both refreshing and hopeful.  But, with the First Amendment question presently back at the appellate level, it will be a long time (if ever) before the Supreme Court tackles the underlying premises of Red Lion and Pacifica.  And with a new, and as-yet-unnamed justice thrown into the mix following the retirement of Justice Souter, all bets could be off.
 

Posted on By Patrick Maines

Time Warner Cable and Consumption-Based Billing


Time Warner Cable has had quite a bumpy ride for the past couple weeks.  Having announced earlier a plan to conduct trials of a consumption-based billing policy, in which users would be charged based on the amount of data they download and upload, by week’s end the company was obliged to suspend the trials altogether.

What happened in between were the protests of some customers and bloggers, the usual mischief of some of the “public interest” lobbies (they’re from Washington and they know what you want), and most importantly, the intervention, as critics, of a congressman (Massa) and a U.S. senator (Schumer).

Aside from the fact that broadband users who consume unusually large amounts of bandwidth, downloading movies and the like, would have to pay more, it’s not immediately clear what’s wrong with consumption-based billing.  That is, after all, the way we pay for most things, and it protects those who use less from having to subsidize the payments of those who use much more.

No matter.  In an age when information “wants to be free,” and everyone is entitled to everything, arguments based on marketplace economics are probably not going to persuade a lot of people, and certainly not grandstanding members of Congress.

Which is why, at the end of last week, Glenn Britt, Time Warner Cable’s CEO, announced a suspension of the trials scheduled for later this year in Rochester, N.Y., Austin and San Antonio, Texas, and Greensboro, N.C.

In a display of their usual savoir-faire, several of the “public interest” moguls were full of gloating, like that of Timothy Karr of Free Press: “We’re glad to see Time Warner Cable’s price-gouging scheme collapse in the face of consumer opposition.  Let this be a lesson to other Internet service providers looking to head down a similar path.”

Only slightly less tiresome was the statement of Gigi Sohn of Public Knowledge: “The company properly listened to its subscribers, the public and policymakers, all of whom (emphasis added) were highly critical of the proposition in the first place.”

The celebrations, however, may be a bit premature.  What Time Warner Cable said was that it was suspending the trials, not abandoning consumption-based billing, and that in the meantime it was going to deploy measurement tools, a kind of “gas gauge,” that would allow users to see how much bandwidth they were using each month.

Assume that some months from now it transpires that the vast majority of users consume bandwidth in amounts that would qualify them for the lowest and cheapest tiers, while only a small minority would have to pay at the highest rates.  Now that would be awkward, wouldn’t it?

Posted on By Richard T. Kaplar

A Disappointing Delay on Cross Ownership

Since January we’ve heard a lot of talk about changing the way the government does business.  At the FCC, however, it looks like it’s still just talk.  When it comes to the newspaper-broadcast cross ownership rules, at least, the times … they definitely are NOT a-changin’.

This week the U.S. Court of Appeals for the Third Circuit said it would put off a decision on whether to lift a stay on the FCC’s modest attempt to loosen the rules until after the Obama FCC has a chance to review the revisions.

This comes after acting FCC chairman Michael Copps announced that the Commission would no longer oppose a petition by activist groups to put the case on hold until the new FCC leadership was in place.  

Let’s add this up.  The usual suspects in the activist realm (Media Access Project, Free Press, United Church of Christ, etc.) try to stall a court action that might loosen the cross ownership rules.  They know that if they can stall until a Democratic-majority FCC is in place, the changes are as good as dead.  The acting FCC chairman, who favors that outcome, goes along with the idea.

So it’s business as usual at the FCC.  But we expected more from the federal judiciary.

The court’s decision was unfortunate.  The judges should have acted decisively and immediately to lift the stay – as a matter of principle.  The ban on cross ownership makes absolutely no sense, neither in this digital age, nor in this recession.  The ban should have been abolished in its entirety years ago.  Some relaxation now would at least be a step in the right direction.

As for the activist groups and the acting FCC leadership – shame on them.  Has nobody among them noticed that in recent months newspapers have been biting the dust at an increasing rate that is nothing short of alarming?

If these policy watchers and makers truly cared about the public interest and a diversity of media voices, as they purport to do, they would be doing everything possible to help newspapers survive.  

It’s true that the problems facing the newspaper industry go well beyond the scope of the newspaper-broadcast cross ownership rules.  And it’s true that repealing the rules will not, by itself, restore the industry to robust health.

But getting rid of the rules – or even relaxing them a bit as the previous FCC chairman had proposed – might just help a little around the edges.  And if even one newspaper were able to keep publishing as a result, wouldn’t the public interest be better served?

That would be a change we could believe in.

Posted on By Prof. Laurence H. Winer

A Unitary First Amendment

By guest blogger LAURENCE H. WINER, Professor of Law and Faculty Fellow, Center for Law, Science & Technology, Sandra Day O’Connor College of Law, Arizona State University, Tempe, Ariz.
 
In last week’s Supreme Court oral argument of the “Hillary: the Movie” case, Citizens United v. F.E.C., the government attorney apparently perplexed several of the Justices by the breadth of his argument.  His argument, and the responses of some Justices, highlight a crucial aspect of the First Amendment.

Citizens United is a nonprofit corporation that made a 90-minute film sharply critical of Hillary Clinton.  During her presidential campaign it wanted to pay cable companies to make the film available to subscribers free via video on demand.

The McCain-Feingold “Bipartisan Campaign Reform Act of 2002” (BCRA), however, bans “electioneering communications.”  This ban prohibits a corporation or labor union from using its general treasury funds for any broadcast, cable, or satellite communication that constitutes express advocacy or its functional equivalent regarding a clearly identified federal candidate within a set time prior to an election.  Electioneering communications, however, do not include news or commentary by a media company, and the statutory ban does not apply to the print media or the Internet.

We are used to media exceptionalism, at least with regard to broadcasting.  That is, throughout its history broadcasting has struggled under a strange First Amendment jurisprudence affording it limited freedom of expression and subjecting it to a panoply of “public interest” obligations that would be constitutional anathemas for any other medium of mass communication.  

Political access rules and requirements for children’s educational programming, for example, fall in this public interest category for broadcasting.  BCRA strangely perpetuates this dichotomous approach by, on the one hand, in effect covering only “television” (broadcast, cable, and satellite), and at the same time exempting from its reach news and commentary in all media.

When pressed by the Justices, the government attorney took the position that the Constitution would allow Congress, if it wished, to extend the statutory ban to print media, a book for example.  To this, Justice Alito replied, “That’s pretty incredible,” going on to characterize the government’s position as allowing it to ban a book about politics, under an expanded BCRA statute, if published by a corporation close to an election.  

Justice Kennedy then demonstrated how bizarre the government’s position is by noting that a book, downloaded by satellite onto a Kindle reader, presumably both would come under the reach of the present statute and, in the government’s view, constitutionally be subject to censorship.  Before long Justice Scalia confessed to being “a little disoriented” because he thought the Court was dealing with the constitutional provision, known as the First Amendment, that he remembers as beginning with “Congress shall make no law.”

BCRA’s restriction on political speech in the guise of campaign finance reform is troubling in its own right.  What great evil of political propaganda justifies this sort of censorship?  But it is good to see members of the Court now “disoriented” by the hopelessly disjointed, media-based approach to First Amendment freedom of expression that the Court itself spawned in the middle of the 20th century and unfortunately maintains in our radically transformed digital era.  

These Justices were incredulous that the government would suggest it could extend a regulation of electronic media to print.  But the disconnect finally should go just as strongly in the other direction – what is prohibited in regulating print media is also prohibited for all media, including broadcasting.

In recent years, the Federal Communications Commission under former chairman Martin pursued a relentless and unwarranted campaign against so-called “indecency” on broadcast television.  The Supreme Court has pending before it a challenge to the Commission’s authority in this area to regulate what no government entity can restrict in any other media.  It would be gratifying if in its decision in the next few weeks the Court finally adopts and applies a unitary First Amendment.

Professor Winer is also the Faculty Editor of Jurimetrics.

Posted on By Richard T. Kaplar

Blaming the messenger, and why not?

 

A program held at Rockefeller University last week—an Oxford-style debate on the subject of the financial crisis—inspires and dismays. It inspires because it demonstrates how much can be learned when knowledgeable people communicate honestly and intelligently, even where they disagree. It dismays because it contrasts so sharply with the quality of the stuff being served up on the subject by so much of the news media, political reporters in particular.

With funding from the Rosenkranz Foundation, the debate was sponsored by Intelligence Squared US, the stateside companion to a similar program in London, and featured six debaters, three on each side of the motion: “Blame Washington more than Wall Street for the financial crisis.”

Arguing in favor of the motion were Niall Ferguson, of Harvard; John Gordon Steele, of NPR; and Nouiriel Roubini, aka Dr.Doom. Arguing against the motion were Alex Berenson, of The New York Times; Jim Chanos, of Kynikos Associates; and attorney Nell Minow.

Not to put too fine a point on it, it is a better and more enlightening discussion of the “political economics” of our financial crisis than anything I have read in any of the news, Op-Ed, or feature stories produced by the Washington press corps. More than this, mirabile dictu, one comes away from the debate not only feeling better informed, but with a certain measure of affection for all the debaters! But don’t take my word for it, read the transcript here.

In a recent blog I lamented the report that Newsweek magazine was planning to become more of an opinion journal, thereby officially abandoning the journalistic concept of objectivity. For my pains I received an email from the head of a major Washington think tank, who wrote mockingly of the idea that this was something new. His point being that Newsweek had always practiced opinion journalism. In my reply I said that he might be right, but that there was a difference between giving lip service to an ideal, and abandoning it altogether.

I’m reminded of that exchange, and mention it here, because it shines a light on yet another dimension of our journalistic impoverishment. Our financial and economic crises are being poorly reported not just because so many political reporters know nothing about finance or economics, but because, in an age and an industry where opinion trumps fact, they don’t have to. They just have to put on display the right kind of opinions.

 

Posted on By Patrick Maines

‘Fixing’ CNBC

From a viral video to an online petition campaign, the Jon Stewart smackdown of the hapless Jim Cramer has spawned quite the kerfuffle.  As an Associated Press story describes it: “Some liberal political activists and economists are seizing on comedian Jon Stewart’s attacks of CNBC to push an online petition drive urging the network to be tougher on Wall Street leaders.”

According to the website put up by the organizers, FixCNBC.com, the petition has attracted more than 15,000 signatures as this is being written.  So what are we to say of all this?  A wholesome exercise in media criticism?  An earnest effort in promotion of journalistic excellence?

Well … no.  Actually, the whole affair is little more than a kind of “would you believe” gambit by people whose reason for being is the promotion of their ideological beliefs.  Truly, if there were a Madame Tussauds of the American Left, virtually all the organizations and individuals involved in Fix CNBC would be found there: Free Press, Robert McChesney, Media Matters for America, Eric Alterman, Fairness and Accuracy in Reporting.  The list goes on and on.

Like the conservative Brent Bozell’s minions at the Media Research Center, the only interest these people have in the media is as vehicles through which they may spread their political ideas.  That, and nothing else.  Not the public interest in quality journalism, nor in any kind of objective coverage of news and public affairs.  And most certainly not in any sophisticated and even-handed coverage of the financial and economic crisis.

So far the network has not responded directly either to the Fix CNBC organizers, or to Jon Stewart.  It will be interesting to see if they can maintain that posture, or if, given the temper of the times, they are obliged to treat the subject of their alleged malfeasance as though it had merit, and issued from people of independent character.

Interesting too will be the response to this flap of others in the media.  On those occasions in the past when conservatives have organized similar protests, their activities have been condemned as heavy-handed if not positively threatening to freedom of the press.  But of course those were conservatives while these are "progressives," so who knows?