Tag: Journalism

Posted on By Kurt Wimmer, Esq.

Five Myths About the Federal Shield Law

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

Free speech is the oxygen of the blogosphere.  Blogs, tweets and Facebook posts couldn’t have the profound influence they have rightfully earned in our new and diverse marketplace of ideas without a robust freedom to debate, to challenge, and even to be outrageous.  So it’s hardly surprising that when a congressional debate about protecting confidential sources mentions blogs, it touches a nerve.

That debate concerned the Free Flow of Information Act, which was approved by the Senate Judiciary Committee last month on a bipartisan, 13-5 vote.  If passed by Congress, the Act would be the first statute to protect journalists from being forced to identify their confidential sources in federal court.  It would build on the protections of the First Amendment (because no act of Congress, of course, can minimize those rights) and fix a serious bug in our constitutional system – multiple federal courts now have said that the only way for reporters to protect a confidential source is to go to prison indefinitely.  Many of our federal courts have held that the First Amendment simply does not allow a reporter to protect a confidential source.  That’s hardly a solution that reflects our country’s global leadership in free expression.  Although 48 states and the District of Columbia already provide such protection in state courts, Congress has never passed a federal shield law.  So the Judiciary Committee’s vote should give journalists reason for optimism, as Emily Bazelon of Slate has so persuasively described.

So why did debate on the Act touch such a nerve?  Because when the Act creates a new privilege, it has to define who can claim that privilege, and defining “journalist” in our diverse online environment is a sensitive task.  The way the Act accomplishes this delicate balance earned the endorsement of the Online News Association and other non-traditional journalists.  But this issue also prompted some commentators to spread myths about the Act.  For example, Free Press released a paper this month, “Acts of Journalism: Defining Press Freedom in the Digital Age,” which purports to analyze the bill.  Remarkably, however, the paper didn’t discuss the bill itself; indeed it is unclear whether its author has even read the bill.  Other bloggers, drawing from blogs rather than the Act itself, claimed the Act “is an attempt to carve out certain types of journalism that Congress is uncomfortable with,” and that it is “basically a licensing law.”

It’s time for some level-setting here, based on the novel concept of looking at what the Act actually says rather than simply echoing the conspiracy theories about how Congress is slighting the blogosphere, or about how the Act is weak-kneed and won’t protect national security reporters.  These claims are simply myths that don’t stand up to analysis.  In fact, the Act will protect journalists – whether they report on a blog or the New York Times, and is our very best chance to keep the people who are informing us from being treated as criminals for committing journalism.

Myth: The Free Flow of Information Act does not cover bloggers.

Fact: False.  Bloggers who practice journalism will be explicitly covered by the privilege.

Free Press writes that today’s “pamphleteers use iPhones and blogs instead of carbon paper, but their acts of journalism still deserve protection.”  That is, of course, correct, and the Act’s authors agree.  That’s why the bill explicitly includes people who disseminate news via websites, mobile apps, “or other news or information service (whether distributed digitally or otherwise).”  Although many state shield laws cover only traditional media, such as newspapers and broadcasters, the Senate bill is platform-agnostic and covers all journalists, regardless of how they distribute their news.

Some also believe the Act should cover all Americans, under the theory that anyone could be a “citizen journalist” and the First Amendment requires that everyone be given the same rights as journalists.  This is, of course, a classic “poison pill” advocated by those who really want to kill the bill (including some lawmakers who proposed such an amendment but also voted against the Act).  A privilege for everyone would mean a privilege for no one, because Congress would never pass an act that allows every single citizen in the United States to quash a subpoena.  The Act properly focuses on a medium-agnostic way to make sure it covers all those who are practicing journalism, but a suggestion that it cover all Americans is simply a smokescreen for those who would rather see the bill die.

Myth: Rather than attempting to define “journalist,” the bill should focus on defining the practice of journalism.

Fact: That’s exactly what the bill does.

Tricia Todd wrote in a Huffington Post blog that Congress “needs to craft a law that protects acts of journalism rather than targeting the messengers and intimidating sources.”  Similarly, Free Press discusses the danger of drawing “a line between who qualifies as a journalist for the purposes of the reporter’s privilege or shield-law protections.”  As an example, the paper cites the Second Circuit’s decision in von Bulow v. von Bulow, which held that the reporter’s privilege should focus on the journalist’s activities, rather than occupational title.

There’s just one problem with the Free Press criticism: The Free Flow of Information Act does, in fact, focus on people who practice journalism, regardless of their job title.  The bill covers people who gather information “with the primary intent to investigate events and procure material in order to disseminate to the public news or information concerning local, national, or international events or other matters of public interest[.]”  That test comes directly from the Second Circuit’s opinion in von Bulow – the very test that Free Press advocates.

Myth: The bill would require the government to license journalists.

Fact: False.  The argument that “defining a journalist will lead to licensing” is as old as shield laws themselves.  But it’s just false – “journalists” have been defined in other laws dating back to 1900, and federal laws dating back to FOIA.  No “licenses” ever have been created under American law, and none could ever be required for journalism because denying a “license” would be a blatant First Amendment violation.

Rush Limbaugh and other critics have argued that the Free Flow of Information Act would create a de facto licensing system for journalists.  This could never happen because the First Amendment right to publish applies to everyone.  The “government” would not license journalists under the Free Flow of Information Act.  Independent, life-tenured judges would determine whether a journalist is able to claim an additional privilege under the statute to protect a source, but this is not a system of licensing.  It’s a system of determining who can resist an otherwise valid order to testify in federal court, just like courts always have done under the attorney-client privilege, the doctor-patient privilege, and the spousal privilege.

Nonetheless, some believe that once Congress passes a shield law, it will eventually permit only state-approved “journalists” to practice journalism and claim First Amendment protections.  It”s sort of like saying, “if they learn to make metal, they’ll build a bazooka.”  In fact, all of the state shield laws require judges to determine whether an individual is covered, and the federal Freedom of Information Act has defined “news media” for years for purposes of obtaining a fee waiver when requesting federal government records.  None of these laws has led to “licensing” of journalists.  (Any law that would “license” journalists would undoubtedly be unconstitutional and easily struck down.)

Myth: The bill would deprive non-covered journalists of their First Amendment rights.

Fact: False.  The Constitution stands above any law passed by Congress, and this law will not limit the First Amendment.

James Tracy, of Activist Post, wrote that under the Senate bill, “only salaried journalists will be given the free press protections guaranteed to all US citizens by the Constitution.”  Similarly, in a bizarre non-sequitur, the Free Press paper describes non-traditional journalistic activities, as if these activities would somehow be limited by the bill.  In the rare instance where an individual does not receive protection under the statute, that individual retains all of her First Amendment rights.  In fact, Congress does not have the power to pass a bill that would deprive people of their constitutional right to publish.  (And the Senate bill does not require a “salary” to claim its privilege.)

Myth: The bill would not protect national security reporters, because its “national security exception” denies the privilege to any reporting about national security or classified documents.

Fact: False.  The bill’s national security provisions are the most speech-protective to emerge from Congress’s nine years of working on this legislation.

The bill, in fact, would prevent courts or agencies from forcing journalists to disclose sources in national security leak investigations in the vast majority of cases.  The “national security” exception in leak cases is very narrow – it applies only if an independent federal judge finds that the disclosure would materially assist the federal government in preventing or mitigating an act of terrorism or other acts that are reasonably likely to cause significant and articulable harm to national security.  The bill would not require disclosure merely to identify the source for later prosecution.  And the bill explicitly states that the court cannot order disclosure of the source’s identity merely because that source is capable of disclosing more classified information in the future.  This “exception” for national security interests is narrowly tailored, and it will provide significant and important protections for investigative reporting on national security issues.

In all, I recognize that Internet memes are pretty hard to slow down once they begin.  But the meme that Congress is somehow seeking to undermine bloggers and to stop non-traditional journalists from being protected by the First Amendment is simply belied by the facts.  The best remedy might be to do something truly radical – try reading the bill.  And then look at the reporters, such as author and New York Times reporter Jim Risen, who right now are threatened with imprisonment for doing their jobs.  The next step is simple: Support the bill.

Note: Mr. Wimmer represents a 70-member coalition of associations and companies advocating for the Act.  This article appeared in the Huffington Post on Oct. 29, 2013.

Follow Kurt Wimmer on Twitter: www.twitter.com/kurtwimmer

Posted on By Patrick Maines

Reflections on the Sale of the Washington Post

Much is being said, almost all of it guesswork, about why Jeff Bezos bought the Washington Post, what he plans to do with it, and what it all means.  Some argue it’s just a kind of trophy purchase, others that it was done to gain political influence, for Mr. Bezos and/or Amazon, in the Nation’s Capital.

Still others see in the purchase a path leading to a future in which important elements of the news media are nonprofit entities, either by design or in consequence of operations that, while unprofitable, are subsidized by owners with deep pockets.

I would guess, and hope, that all of these speculations are false.  The more likely reason that Mr. Bezos bought the Post is because he suspects he can operate it, using the tools of the new technologies, at a profit.  That by doing so he would also, serendipitously, save professional journalism may be a by-product of his purchase, whether it’s part of his motivation or not.

In 2000, The Media Institute gave Mr. Bezos its Free Speech Award, largely in recognition of the global reach of his book selling operation, sometimes over the objections of local governments.  In his acceptance speech, Mr. Bezos talked at length about the path he and his wife had followed in the creation and growth of Amazon, and the picture that emerged was not that of a politician or a philanthropist.

Instead, Mr. Bezos came across as an ambitious, disciplined, and hard-charging businessman.  (That same year, the Institute gave its other annual award to Robert Johnson, founder of BET, and I have often thought how similar the two men are.)

To put it another way, I think Mr. Bezos has too much self respect, and too little ego, to have purchased the Post either as a kind of grandstanding event, the better to aggrandize himself or Amazon, or to stand by and subsidize indefinitely a financially failing company.

After all, if news organizations are not created to make a profit, what are the standards of success or failure?  The idea that nonprofit status produces a more value-free product is belied by the reality that most philanthropists operating in the realm of the media have decided political views, a la the Knight Foundation, ProPublica, Open Society Institute, etc.

Going forward, there is one thing I would recommend to the gentleman: that he insist that the editors and reporters at the Post understand how important it is that the media be a watchdog on government. After all, if the media are not a check on government, who is?  If the only role of the media is to deliver eyeballs to advertisers, the media wouldn’t deserve a First Amendment and the Founders wouldn’t have produced one.

Which is not to say that the Post is in all ways politically or ideologically one dimensional.  As contrasted with the New York Times, where the right-leaning Ross Douthat toils away in solitary isolation, the Post’s editorial page features lots of conservative columnists.

The problem so defined is not in the editorial pages but in the news pages – the paper’s breaking, feature, and investigative reports.  No subject better illustrates this point than the paper’s coverage of the ruinous, not to say corrupt, fiscal antics of Congress and the Administration.

Perhaps the greatest threat not just to the financial health but to the very security of this country’s citizens is the growth of government, and of the corresponding governmental debt, at the federal, state, and local levels. Nor is this a new development. It’s been going on for years and the Washington Post has looked right past the kind of things that, were they done in the private sector, would yield indictments and incarceration.

There are things to admire in the Washington Post, and it’s to be expected that Mr. Bezos would not come out with early comments of concern about the editorial product there.  But if he cares about the promotion of excellence in journalism, and would like to add conservatives and Republicans to the newspaper’s admirers, this is something he ought to put in his cart.

                                               

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

Posted on By Patrick Maines

Google’s Impact on Journalism

The products and services offered by Google are well known and highly regarded.  Every day, millions of consumers around the globe visit the company’s search engine or sites like Google News or YouTube.  And for this, the company’s employees and (especially) its founders have been well compensated.

But there’s another side to Google that consumers know very little about.  That is Google the corporation, and the effect its business practices are having on competitors, and most dramatically on the professional media, news and entertainment alike.

In important measure, people know little about Google the corporation because news stories and commentary about the company’s business practices are mostly confined to industry trade publications, or technology and economic journals.

Even the public policy issues that the company addresses are complex, and hard to write about in a way that wouldn’t cause most readers’ eyes to glaze over.  How, for instance, would one popularize such issues as the district and appellate court rulings in Viacom v. YouTube, or the FCC’s “network neutrality” proceedings, or the FTC’s recently concluded investigation of Google’s search and advertising policies?

So it’s easy to understand why the public at large doesn’t know much about Google’s role in these matters, but book and newspaper publishers do.  So too do movie studios and Google’s competitors in the online travel business, to name just a few.

And what all of these other companies know is that Google’s scale, business tactics, and aggressive lobbying amount to a distinct threat to their very existence.  A single datum provides a startling view of the challenge: Through the first half of 2012, Google by itself took in more ad dollars than the entire U.S. print media, magazines and newspapers, excluding only the ads on newspaper websites, which even today generate only about 25 percent as many ad dollars as print advertising.

The ways in which Google uses its dominance in search to monetize, by corralling and aggregating (without permission) the content of others, is a story that is long in telling.  But a common feature, as stated in a White Paper submitted to the FTC in 2011 by The Media Institute, is that Google’s “main search page biases Google News results over results of news organizations and other publishers.”

Nor is this the perception and complaint just of American publishers.  On June 25, a coalition of hundreds of Europe’s leading publishers urged the European Commission, which is the EU’s antitrust authority, to  reject outright some remedies that Google offered to end an investigation by the Commission of the same kind of practices the company is accused of by publishers on this side of the Atlantic.

As summarized by GigaOm, “Google is accused of surreptitiously favoring its own services in its search results, locking advertisers onto its platform and scraping content from rival, subject-specific search engines.”

In elaboration of the European publishers’ rejection of Google’s proposals, the president of AEDE, a Spanish association of daily newspapers, put it this way: “In short, Google’s proposed remedies do not address the overarching problems and fundamental harms that Google’s conduct causes in search-related markets and none of them aims at restoring effective competition….  In some ways, they might actually make matters worse by entrenching dominance and misleading consumers.”

Here, as in Europe, the principal venues of appeal for those being harmed by Google’s business practices are the antitrust authorities, which is to say quasi-political bodies.  And that’s a problem. In this country, the FTC has already dismissed an opportunity to do a full antitrust review of Google, in part, we can speculate, because there is no great public support for the news media generally.

Indeed, a Pew poll, released on July 11, found that only 28 percent of respondents believe that journalists “contribute a lot,” down from 38 percent four years ago.  And a Gallup poll, published on June 17, revealed that only 23 percent of the public have “overall confidence” in newspaper and TV news.

Given this lowly rating by their own customers, one might be tempted to dismiss the news media’s cannibalization by Google as something they had coming to them, and there’s an element of truth in that, as with the special contempt for them that the media have inculcated in conservatives and Republicans.

But there’s a much larger issue involved in Google’s anti-competitive behavior, and that is whether this (or any) country will in future have a robust and profitable news media industry, marked not by opinion but by objective news, investigative, and feature reporting.  Surely people of all political persuasions can agree that blogs and content aggregators are not going to fill that role.

At a time when the Internet is obliging mainstream news outlets to publish online, it is not yet clear whether a way can be found to make up, in that process, for the necessary advertising revenue that once came their way – a problem not confined just to the legacy media but to prospective newer entrants in the news reporting business as well.

And it is at this crossroad where Google, the company whose fraying motto is “Don’t be evil,” may prove decisive.

                                               

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.  This piece was first published in USA Today on July 19, 2013, under the headline "Beware of Google’s Power."

Posted on By Patrick Maines

Britain Opts To Censor the Press

With its peerage and royals, Beefeaters and such, Britain in the 21st century sometimes seems like a large theme park, but its historical influence on the USA is clear.  From language to culture, and above all to law, what’s happened in Britain hasn’t stayed in Britain.

Which is precisely why that nation’s new press law, which creates by “royal charter” a speech-suppressing media “watchdog,” is so much to be rued.  Briefly stated, the watchdog will have the power to oblige participating media to post apologies and take complaints into arbitration, thereby creating a system of government regulation of the press that hasn’t happened there since 1695.

It is commonly said that the tracks that led to this train wreck were laid by the misbehavior of Britain’s tabloid newspapers, and there’s truth in that.  Caught in the act after years of hacking into private e-mail and phone calls, and bribing public officials, the tabloids acted outside the bounds not just of ethical journalism, but of the law.

But the better explanation for why the British have now endorsed regulation of the press (rather than relying just on the enforcement of criminal laws already on the books) is because that country has no First Amendment. That, and also because there (as here?) there exist large numbers of people who value political correctness, and political advantage, over freedom of speech.

Indeed, though the new press rules are said to have become inevitable given the failures of Britain’s (recently extinct) Press Complaints Commission (PCC), another way of looking at it is to say that the very existence of the PCC inadvertently cleared the way for the more intrusive regulations.

Some years ago there existed in the United States a National News Council (NNC), whose charter was similar to the PCC.  It failed to take root for many reasons, but perhaps most notably because the New York Times’ Abe Rosenthal wisely refused to cooperate with it.  Rosenthal’s concern was that the NNC would fail to satisfy press critics, and that some sort of government program would then be invited to succeed it.

The British have long been accustomed to a significant degree of governmental oversight of their broadcasting companies’ content through what is called Ofcom (Office of Communications), but until now the print media have been spared that oversight.

Though billed by its parliamentary sponsors as a voluntary arrangement, the terms of the new press regulation carry onerous potential liabilities, specifically including “exemplary damages” in court, for media companies that don’t join the quango.  This may even include some companies that are based elsewhere. Indeed, one of the most powerful criticisms – from such as the New York Times and the Committee To Protect Journalists – is that the regulation assumes authority over bloggers and websites, large and small, foreign and domestic.

“In an attempt to rein in its reckless tabloid newspapers,” said the New York Times, “Britain’s three main political parties this week agreed to impose unwieldy regulations on the news media that would chill free speech and threaten the survival of small publishers and Internet sites.”

But the most compelling and powerful criticism has come from The Spectator, the British publication said to be the oldest continuously published magazine in the English language.  As Nick Cohen wrote on March 18:

The regulator will cover “relevant publishers.”  If they do not pay for its services and submit to its fines and rulings … they could face exemplary damages in the courts.  It is not just the old (and dying) newspapers, which the state defines as “relevant publishers” but “websites containing news related material.”

What “news related” material can get you into trouble?  It turns out to be the essential debates of a free society.  Dangerous topics to write about include “news or information about current affairs” and “opinion about matters relating to the news or current affairs.”  Any free country should want the widest possible range of opinions about current affairs.  As of tonight, Britain does not. 

There will be a temptation among many in this country to look past what the British have done as nothing more than the antics, as someone once put it, of an exhausted stock; not to worry about anything similar happening here.  And there’s some truth in that.  Because of our First Amendment and strong case law in defense of it, such regulation is unlikely in this country.

But it’s worth remembering that this happened in Britain at the hands of parliament and that we too have a “parliament,” and regulatory agencies, and that, as in Britain, we have organizations, like the cynically misnamed Free Press, that are constantly pushing for an expansion of government oversight of the media.

Thanks to the Founding Fathers we have some additional protection against the kind of thing that’s just happened in Britain, but vigilance is required, now more than ever.

                                             

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.  A version of this article titled "Keep U.K. media rules out of U.S." appeared in the print and online editions of USA Today on April 23, 2013, and can be viewed here.

Posted on By Richard T. Kaplar

DOL Reportedly Postponing New ‘Lock-up’ Policy

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

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

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

                              

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

Posted on By Patrick Maines

On Growing Old(er)

Owing to a desire, after posting so many pieces about communications policy, to establish a more personal relationship with the five or six people who read this blog regularly, herewith a piece on something altogether different.

I speak, as do so many, about the phenomenon of aging, and about the dread “D’ word associated with it.  Have you ever noticed that, whatever their age, most people say that they’re “getting older” rather than that they are old?  They can be 80, or even 90, and still they describe themselves as getting older.  For such people old age is a destination never to be arrived at in their lifetimes, no matter how long they live.

I can relate to that.  I have reached an age where I’m made uncomfortable about surrendering my driver’s license to some youngster, especially the females.  Equally disturbing are those scroll-down date-of-birth features on so many websites.  By the time I get to mine, so far down the list, I often don’t even care anymore about whatever product or service required the information.

And there are other things.  Like doctors and doctoring.  When I was young, whatever ailments I had were always recognized, and treated, immediately.  Now that I’m (getting older), I find that my ailments are not only undiagnosable and untreatable; they cause, more often than not, the doctors’ eyes to glaze over upon hearing about them.  The impression one gets on such occasions is that they think you’re lucky to be alive, and should stop with the complaining.

Luckily for me, I look and act like a person who is 20 or 30 years younger than I am.  (Well, actually nobody has ever said that, but that’s the way I see it.)  And for this reason I have every expectation that, when I go to my reward (it should be so good), I’ll arrive there fresh as a daisy.

And speaking of death – the Great Oblivion, as it were – I have some ideas about that too.  It’s hard for many people to imagine the world without them, even as the world itself has no trouble at all, and in some cases positively relishes the thought.

But I have a different take on it.  Whereas most people believe death of the elderly is a consequence of cellular decay or disease, I incline to the view that, when you’ve reached a certain age, God (like your wife) is just tired of putting up with you.

So to wrap it all up, let me leave you with something that, though it has nothing at all to do with the subject at hand, is also worth sharing.  I refer to a quote by that other great man, Albert Einstein: “Gravitation cannot be held responsible,” he said, “for people falling in love.  How on earth can you explain in terms of chemistry and physics so important a biological phenomenon as first love?  Put your hand on a stove for a minute and it seems like an hour.  Sit with that special girl for an hour and it seems like a minute.  That’s relativity.”

                                  

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

 

Posted on By Patrick Maines

Sugar and Spice

Every month or so, poll results that rankle are published by somebody.  A good example of the genre is the Gallup poll, published June 23, wherein it’s revealed that, by a more than two-to-one margin, men (young men especially) would prefer a boy child to a girl.

Gallup put the question this way: Suppose you could have only one child.  Would you prefer that it be a boy or a girl?  Men as a whole said they would prefer a boy, 49% to 22%, while young men (18 to 29 years old) favored a boy over a girl 54% to 27%!

Not for the first time, such results lead one to ask the question: Are you guys nuts?  Never mind that girls grow up to be women, among the most beautiful things in this world, even before then, as children and babies, girls are among the greatest treasures any man will ever find.

I know this first hand because, as the father of two girls, and the grandfather of four, I’m an expert on little girls (and big girls too).  When my younger daughter was two, and being held by her mother one night, she noticed faintly an image in her mother’s pupils, and told her she had “angels in her eyes.”  With her blond hair and pink nightgown it was an easy mistake to make, but the truth, of course, is that the angel was in her mother’s lap.

For men especially, girls of whatever age can provide a unique kind of refuge – to a calmer, less materialistic, and more nurturing place – that by their nature boys and men would otherwise experience only rarely.

None of this, of course, is to say anything negative about boys.  I have a grandson too. But the poll in question suggests that boys are already held in sufficiently high regard.

Gallup has been asking this question for 70 years, and the results in 2011 are little different from those in 1941, so if you’re a glass half-full kind of person you might be relieved that things haven’t gotten worse over time. But guys, please, if Gallup ever asks you this question, remember what Dave Barry said: “If a woman has to choose between catching a fly ball and saving an infant’s life, she will choose to save the infant’s life without even considering if there are men on base.”

                                 

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

Posted on By Patrick Maines

Dodging a Bullet: The FCC’s Report on the Future of the Media

Seventeen months ago the FCC teed up what until last Thursday was known as the “Future of Media” project.  For all practical purposes the project’s report, now called “The Information Needs of Communities,” is likely to be forgotten in half that time.

On the face of it this sounds like a criticism.  Far from it!  For its thoroughness and level-headed analysis, and especially for its acknowledgment of the constitutional limits on governmental involvement in the media, this report, and its principal personnel – most notably the man brought in to oversee the effort, Steven Waldman – are owed a debt of gratitude.

Before this project began there arose a powerful network comprised of ideologically motivated activist groups like Free Press; academic institutions and their publications, like Columbia University’s CJR; and deep-pocketed grant-giving groups, most importantly the Knight Foundation; all in the vanguard of what is euphemistically called the “media reform” movement.

And as Chairman Genachowski himself acknowledged, it was the work of these players – most notably the Knight Commission (a creation of the Knight Foundation, which two years earlier released a similarly titled report) that prompted the FCC’s own project.

So with this as its provenance, who would have been surprised if the report had embraced the media reform crowd’s recommendations?  But, mirabile dictu, it did not!  Instead, the report effectively dismisses the worst aspects of the media reformers’ governmental agenda.  Missing or explicitly rejected, for instance, are increased funding of public broadcasting, a “Geek Corps” for local democracy (patterned after AmeriCorps), federal tax credits for investigative journalism, and calls for a halt to media consolidation.

In fact, one of the few “action elements” in the report was a call for less government regulation.  As remarked by media reporter John Eggerton, the report “recommended scrapping the FCC’s ascertainment rules … as well as closing the localism proceeding without taking steps like creating community advisory boards to weigh in on public interest programming.”

There are those of us who believed that it was a mistake for the FCC to engage in this project at all – first out of conviction that the FCC had no authority to venture so far afield, and second out of fear that the report might provide the impetus for intrusive and unconstitutional regulations or legislation.  But in light of what the project report says, and doesn’t say, the feeling now is that some good will come of it.

After all, the “media reformers” will never have a better setup than they had here. With a Democratic majority on the Commission, a substantial infrastructure of activists and their financial enablers, and a media industry that is in fact struggling, if ever there were a time when the reformers’ wish lists might find policy traction this was it.  And now they have their reward: an exhaustive report that almost completely ignores that part of their agenda requiring governmental action.

During the Clinton era, many of the same kind of people who today support media reform helped man a presidential commission that came to be known as the Gore Commission.  Its focus was on the “public interest obligations of broadcasters in the digital age.”  And like the agenda of today’s media reformers, it encouraged government action in ways that undermined the First Amendment.

In the end, the Gore Commission produced its own report, a document that was as dense as it was feckless, and the whole enterprise sank from public consciousness almost immediately – as well it should have, since it produced nothing of value.  The guess here is that the FCC’s Information Needs of Communities report will also sink from public consciousness – not because it lacks value (its scholarship and usefulness as a research document are undeniable, for instance), but because it wisely steered clear of recommendations advanced by the more feral elements within the media reform community – people, for instance, like Commissioner Copps, a long-time spear carrier in that army, who immediately released an impassioned denunciation of the report.

Had the report endorsed radical (and preposterous) things, like a federal tax credit for investigative journalism, it would have attracted more ink, and been the subject of conversation far longer.  But it’s a credit to its authors, and to Chairman Genachowski, that it did not do so, because it shows they possess both a realistic view of the scope of the FCC’s limited authority and a healthy respect for the First Amendment.

                                  

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

Posted on By Patrick Maines

Political Reporters and the ‘Dismal Science’

The story is told that five years after Hannibal’s victory at Cannae, with his troops camped outside the very gates of Rome, the Roman Senate auctioned off, at full price, the very ground upon which Hannibal was standing; perhaps the first example in history, given the Carthaginians’ subsequent retreat, of the market as a predictor of future political events.

More than 2,000 years later, the markets are still the best single predictor of political events, but you’d never know it if you get your clues about such things not from financial and economic data but from that breed of journalists called political reporters.

A couple years ago this was the subject of a blog called “What Do Political Reporters Know?”  The answer given to that question (little of value) is as true today as it was then, but more about that later.

First, let’s take a brief stroll down history lane.  For all the angst and surprise now being expressed by many about the state of the American economy, it’s not as though we couldn’t see some of this coming.  Indeed, many people (those who follow the markets) knew by election time, 2008, that the country was in great economic distress.  Some knew this even earlier.

And how did they know?  Let’s count the ways: They knew because commodity prices, especially oil and gold, were rising rapidly; that unemployment was rising and the dollar was falling; and that two of the most iconic names in American industry – General Motors and Chrysler – were petitioning the government for assistance to avoid bankruptcy.

They knew because in September of that year Lehman Brothers bellied up, the largest bankruptcy in U.S. history; and because, after peaking in 2006, house prices began a steep fall, such that by December 2008, the Case-Shiller home price index reported the largest price drop in its history.

All of this was known by people who follow the markets; this, and something else too: They knew that government at all levels – state, federal, and local – were running big and unsustainable deficits, tricked out with accounting gimmicks and featuring licentious borrowing, often to pay off unfunded liabilities.  In short, they knew that governments were running the same kind of game for which Bernie Madoff would later get a life sentence in the slammer.

Given that nobody had ever seen anything like this kind of economic maelstrom since the Great Depression (even as aspects of it – most notably, housing and unemployment – were to get vastly worse in the years following), and given too that this was occurring right in the middle of a presidential election, one would expect that historians reviewing the period would find that the “people’s sentinels” – political reporters – shined a bright light on the economy and its portents, and obliged the candidates for the presidency to do likewise, right?  Forget about it.

Not only did political reporters fail to oblige the presidential candidates to focus on the economy, they didn’t spend any quality time on the subject themselves. Instead, they treated the economy like a sideshow to the main event – the political horse race.

Now in fairness, it should probably be acknowledged that neither Barack Obama nor John McCain knew the first thing about the economy, and Obama’s only passionate comment about the matter – that he inherited the mess from President Bush – is not without some factual bases.

But none of this is to excuse the triviality and nonperformance, then and now, of the nation’s political reporters.  More importantly, the mere knowledge of reporters’ shortcomings isn’t enough to enable citizens generally to make smart and informed decisions about those economic and socio-political developments as will affect them personally down the road.

If, for instance, they wonder how they – or anyone without a defined-benefit pension plan – are going to be able to retire with interest rates near zero; or if they are concerned about the likely effect on crime and our civic culture of the impoverishment of millions of formerly middle-class people; or if they worry about the effect on their assets of further significant declines in the purchasing power of the dollar; or if, mindful of the growing might of a country like China, they are concerned about the future, including the future security, of their children or grandchildren; if, in other words, they are interested in things more serious than which political party is best spinning the misery, or likely to be awarded at the polls, then they need to begin to familiarize themselves with finance and economics.

There is no guarantee, of course, that a subscription to the Wall Street Journal, or any such, will make of you a veritable soothsayer.  But it’s a safe bet that if you follow the markets you’ll get a better handle on those things that matter than if you rely only on political reporters for your news of the world.

And there is my lesson for the day. That’ll be $50 (payable in silver bullion).

                                   

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

Posted on By Patrick Maines

Orts and All

Can’t Miss TV

Comes now the news that Michael Moore, the merry propagandist, is joining Keith Olbermann on Al Gore’s Current TV, the legendary television network.  It’s practically a miracle!  Even now the crowds are queuing up to catch a glimpse of this dynamic duo.

One can only imagine the kind of material that, in collaboration, they may produce.  Perhaps an investigative report on the link between Citizens United, the Tea Party, and global warming.  Or maybe something even more intellectual, like a video essay on how the alleged indebtedness of the federal and state governments is just a rumor started by the gnomes of Zurich.

Whatever, isn’t it great to know that we live in a country where bombast and imbecility can have their day in the court of public opinion?  As they say in the ad – “mm, mm, good!”

Those ‘Public’ Airwaves

The Speaking Freely essay written by Erwin Krasnow, recently co-published by The Media Institute and The Thomas Jefferson Center, is striking in a number of ways, not least because its author is a former general counsel of the National Association of Broadcasters.  As such, Mr. Krasnow has known for years of broadcasting’s embrace of concepts like “scarcity” and the "public interest" standard as useful tools in re certain policy issues, like cable TV’s “must carry” obligations.

So how to get a handle on Krasnow’s call now for an end to such concepts, and to the notion that the public “owns” the airwaves?  Perhaps it’s the prospect of forced spectrum surrender, or maybe the notion that broadcasters are able these days to charge for their carriage by cable that explains it all.  Whatever, it will be interesting to see if, in days ahead, the NAB echoes some of Krasnow’s arguments.  For that matter, it would be interesting to know what those at NAB think of Krasnow’s essay, which has attracted rather a lot of attention.  Goes without saying that we at TMI would be more than happy to publish any such.

It’s the Gospel (‘Jesus Dropped the Charges’)

Doubling down on my earlier reckless confession of love for the blues and gospel music, herewith a link to a piece by the late O’Neil Twins.  (Yes, the title is amusing, but I’ll fight any man in the bar who says he doesn’t like the music.)  Check it out here.

Drudging Respect

Writing in The New York Times, David Carr has this to say about the extraordinary influence of the Drudge Report: “Yes, Mr. Drudge is a conservative ideologue whose site also serves as a crib sheet for the likes of Rush Limbaugh and Sean Hannity.  But if you believe that his huge traffic numbers are a byproduct of an ideologically motivated readership, consider that 15 percent of the traffic at Washington Post.com, which is not exactly a hotbed of Tea Party foment, comes from The Drudge Report.”

Say what?  Featuring, on its editorial pages, such as George Will, Charles Krauthammer, Jennifer Rubin, Robert Samuelson, Mark Thiessen, and Michael Gerson, the WAPO may not be a hotbed of “Tea Party foment,” but it is the source of a lot of conservative opinion of the sort that Drudge links to often.

Carr’s opinion to the contrary notwithstanding (and how many times do we have to say this?), the primary reason for Drudge’s success – as for the success of conservative talk radio and the Fox News Channel – is its political point of view, which is different from that of most of the MSM, and popular with a large number of people.  Sheesh!

                                   

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