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.