Media and Communications Policy

The Intrinsic Menace in 'Media Reform'

Patrick Maines — Tue, 23 Feb 2010 04:18:16 -0500

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.

The American Samizdat

Patrick Maines — Tue, 16 Feb 2010 11:10:03 -0500

Back in the bad old days, “samizdat” was the name given to that body of politically forbidden literature that was clandestinely published and circulated in the Soviet Union. In 2010, the Internet serves as an American samizdat, to the advantage of conservatives of one shade or another.

The Internet advantages “conservatives” more than “liberals” not because there are more or better conservative websites, but because of (1) the larger numbers of conservatives; and (2) the failure of the legacy media to portray conservative views and concerns.

No issue better illustrates this phenomenon than the extraordinary revelations of fraud and abuse in the “global warming” debate. Despite the steadily growing number of Internet stories challenging the findings and practices of such as the IPCC and the East Anglia CRU, the mainstream U.S. media (the broadcast networks, newsweeklies, wire services, the Washington Post and New York Times) have shown little or no interest in these stories.

Instead, most of these news outlets continue to print or broadcast reports that are oblivious to the damage done in recent weeks to the claim of anthropogenic global warming (AGW). And even where they have made mention of this development, they’ve often done so in a way that’s calculated to minimize the impact of the exposes.

A good example is the story published in the Washington Post by Julia Eilperin and David Farenthold. Under the headline “Series of missteps by climate scientists threatens climate-change agenda,” the authors offer a perfunctory rundown of the many allegations that have recently been made against AGW literature, while repeating, mantra-like and in virtually every other paragraph, some variation on the claim of a scientific consensus that “climate change is happening.”

The contrast between this kind of coverage, or non-coverage, by the MSM, and the multitude of critical stories available on the Internet, many of them links to articles published in major British newspapers, is startling. But news aggregators like the Drudge Report aren’t the only example of the way the Internet is empowering conservative voices re this and other issues.

The online comments sections of the MSM themselves are proving to be fertile soil for conservative opinion. In fact, one sometimes wonders what the MSM’s reporters make of the comments that follow publication of their pieces online. As of the time this piece is being written, for instance, the Eilperin/Farenthold story has attracted about 200 comments, perhaps 70 percent of them critical of the reporters for whitewashing, or failing to mention in sufficient detail, the “Climategate” revelations.

Other examples of the ways in which the American samizdat is facilitating right-of-center news and opinion can be seen in the widespread circulation of important stories similarly ignored until late in the news cycle, like the Acorn scandal, and more recently of exposes of the role of public employee unions in the deteriorating financial condition of so many states and municipalities.

There was a time, not so long ago, when news coverage by the MSM could set the agenda, and prosper, whatever its slant. No more. The issue today is how much longer the MSM will continue to practice center-left journalism in a center-right country. At a time when their business models are in disarray, and the economy on its uppers, how long before the MSM come to believe that this is just bad business?

Citizens United and the Commentariat

Patrick Maines — Wed, 27 Jan 2010 10:19:07 -0500

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.

How Sweet It Is!

Patrick Maines — Thu, 21 Jan 2010 16:17:25 -0500

The opinion handed down today in the Supreme Court re McCain-Feingold is good news for everyone who values free speech in general, and political speech in particular. The relief it grants to labor unions, nonprofit and for-profit corporations, who are now free to sponsor issue ads within close proximity to federal elections, is particularly gratifying and long overdue.

As congressional proponents of the Bipartisan Campaign Reform Act scramble to write legislation in an attempt to work around the Court’s decision, they will now have to confront this daunting fact: As of today, speech of the sort that was at issue in this case is constitutionally protected under the First Amendment.

Halleluiah.

Net Neutrality in Retreat?

Patrick Maines — Tue, 19 Jan 2010 07:28:49 -0500

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.

Media 'Reform' and the First Amendment

Patrick Maines — Wed, 13 Jan 2010 10:04:25 -0500

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.

Stuart Benjamin: The FCC's 'Spectrum Reformer'

Patrick Maines — Thu, 17 Dec 2009 10:24:36 -0500

Amid their other problems, broadcasters now have a new one: the FCC’s recently appointed Scholar in Residence, Stuart Benjamin, a law school professor at Duke University. According to an FCC press release, Benjamin will work on “spectrum reform,” among other issues. The problem that broadcasters have is with some articles written by Professor Benjamin, earlier this year, on that very subject.

One such, “Roasting the Pig To Burn Down the House,” seeks to answer the question being asked by all fair-minded people: “Should we welcome new regulations on broadcasters that will make broadcasting unprofitable?” And the answer, according to Benjamin, is “yes.” Or, as he puts it: “Some regulations that would be undesirable standing on their own will be desirable once we factor in the degree to which they will hasten the demise of over-the-air broadcasting.”

In the same piece Professor Benjamin happily acknowledges, in passing, something that broadcasters have argued – namely that some new administrative regulations, like the so-called advisory boards, “could prove fairly costly.”

A few months later, whilst opining on the Volokh Conspiracy blog site, Benjamin gleefully commented on another rueful development, a Supreme Court decision on indecency regulations (FCC v. Fox) that, as he puts it, “makes life worse for local stations” that can’t afford tape delay systems. As with the added expense of advisory boards, Benjamin sees this too as a good thing. “Local television broadcasters,” he says, ”have a new disincentive to airing live local events – and viewers have less reason to watch local broadcasters.”

Never mind for a minute that Benjamin’s comments are informed by what he sees as the inevitable collapse of broadcasting (he gives it only about 20 years to live, even without a nudge), and that he sincerely believes that broadcast TV is not the highest and best use of the spectrum. The remarkable thing is why the FCC would bring aboard, and give this particular portfolio to, someone with Benjamin’s baggage?

It would be funny if it were a joke. But as one long-time broadcasting executive put it, it raises real questions about the kind of personnel vetting that’s going on at the FCC. If views like those that Benjamin has published aren’t enough to disqualify him from appointment to the position he’s just been given, what would it take? A manual on how to poison station managers?

The dust has barely settled on the government's years-long campaign to engineer TV's digital conversion – a conversion that many broadcasters think holds great promise for their industry – and along comes this character, as out of some film noir production, whose ghoulish fantasy is to put broadcasters out of the broadcasting business.

Not to worry, though. Once broadcasting has been polished off, the FCC can focus all its energy on regulating the Internet.

Net Neutrality: Whose First Amendment?

Richard T. Kaplar — Tue, 15 Dec 2009 13:15:18 -0500

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.

The MSM: In a Horse Race to Irrelevancy?

Patrick Maines — Mon, 30 Nov 2009 15:05:22 -0500

Perhaps because of their declining prospects, much of the mainstream media are acting very hinky these days. On the one hand we have the spectacle of such as the Associated Press and Newsweek openly adopting opinion as their journalistic motif. While on the other we see newspapers, like The New York Times and The Washington Post, awash in the kind of political reporting that reduces even the most important policy issues to the banalities of “horse race” journalism.

This latter development has become all the more insufferable in the current nightmarish environment, where every current and proposed law or regulation should be more carefully analyzed for its effect on the economy than for its impact on politicians and political parties.

Coverage of the health care debate has been singularly inadequate for precisely this reason. For every news and feature story that has delved into the effects, say, of the “public option” or the “employer mandate,” a hundred have dwelt on the chances of legislative passage, or on the political winners and losers.

Comes now the leaked e-mail messages from the Climatic Research Unit (CRU) of the University of East Anglia, just days before an important environmental summit in Copenhagen, and the question is whether the MSM, in the wake of it, will finally treat the subject of global warning with the care and objectivity that such a complex subject demands.

Even without so-called cap-and-trade legislation looming on the congressional horizon, the many national and international environmental laws that are now being implemented or considered require that global warming be closely scrutinized for its scientific findings, and for the impact and efficacy of any public policies as may be pursued in consequence. The unseemly aspects of the CRU correspondence simply adds fuel to what should be a brightly burning subject even without it.

Consider, for instance, the critical linkages that have to be established and explained if “global warming” is to be understood by people generally (as distinguished from “warmists” or “skeptics”), as a subject they should care about.

First, it has to be clear that warming is happening, and that it is man-made, a subject about which there was, in fact, debate even before the CRU debacle. Then it has to be determined that said warming is of such peril something needs to be done about it. (Again, the subject of debate.) Then, of course, it has to be shown that there is something that can be done about it. And finally, we have to know that what we do won’t have negative consequences (like, for instance, on the economy) that are worse than the effects of the warming itself.

Seen in this way the opinions of climatologists are just one element, and not even the most important one, that needs to be considered and fully examined. But is that happening in the coverage of this issue by the MSM? Doesn’t look like it. Instead, as with their coverage of health care reform, news stories about global warming tend to be either (1) preposterously opinionated, and wrapped in the familiar blather of political correctness, or (2) woefully superficial, a consequence of their horse-race aspects and focus not on substance but on the political sideshow.

Hardly a day goes by without someone, somewhere, lamenting the prospective demise of journalism, by which they mean, even if they don’t say so, what we have come to call the mainstream media – the broadcast networks, big-city papers, the newsweeklies, the wire services. But as shown in their coverage of global warming and health care reform, today’s MSM appear to be adrift, and operating apart not only from their traditions, but also from what is in their own, and our, best interest.

Cross-posted in Huffington Post, here.

Dueling Philosophies on Minority Ownership

Richard T. Kaplar — Tue, 24 Nov 2009 16:14:39 -0500

What happens when you invite the FCC’s two veteran commissioners to speak about the media at a Rainbow PUSH Coalition symposium? When one of the commissioners is Michael Copps, and the other is Robert McDowell, you get two very different views of where things stand and how they could be improved, as we saw on Nov. 20.

Copps, a Democrat, is a long-time foe of large media companies. So he uses phrases like “excessive media consolidation,” “big media run awry,” “tsunami of consolidation,” and the punchline: “Minorities have suffered greatly because of consolidation.”

One of his proposals to “put some justice back into our ownership policies” would involve a “public interest licensing system for broadcasters.” Copps would like the Commission to “go back to having some guidelines to make sure stations are consulting with their audiences on what kinds of programming people would like.” But wait, I think we already have such a system. It’s called “ratings.”

Copps also favors something called a “full file review,” which would have the Commission award certain broadcast licenses by considering an applicant’s “experiences in overcoming disadvantages,” including race and gender discrimination. (This sounds like a lawsuit waiting to be filed, but that’s another story.) In other words, Copps views the FCC as the referee in a fight between “big media” and the little guy, where the solution is a tight rein on ownership regulations.

Robert McDowell sees things differently. For minorities to get ahead in broadcasting and other media, Republican McDowell is quite clear about what is needed: access to capital. “An important priority for me in my three-and-a-half years on the Commission has been to help create a competitive environment that allows minority entrepreneurs and other new entrants a real opportunity to build viable communications businesses,” he told the Rainbow PUSH group.

McDowell noted that he enthusiastically supported the Commission’s 2007 Diversity Order, which contained nine measures to help small entrepreneurs acquire capital or use their financial resources more efficiently. He has also called for a tax certificate program to help disadvantaged businesses.

At the same time, McDowell is keenly aware of the unintended and hurtful consequences of regulations (of the sort favored by Copps) aimed at helping small, local media owners – like a “localism” proposal to reinstate a 20-year-old rule requiring stations to be manned throughout their broadcast day (technology notwithstanding), or onerous “enhanced disclosure” requirements so complex that they could require the hiring of additional employees.

In short: On the question of disadvantaged minorities, Copps sees the culprit as large media companies. From his perspective, the FCC must be a strict regulator of media ownership. McDowell sees the culprit as the lack of access to capital. He would envision the FCC as a facilitator, creating policies to generate financial opportunities for entrepreneurs.

Whose view is more accurate and whose solution is more likely to succeed? On both counts, my money is on McDowell.

News and Opinion

Patrick Maines — Mon, 16 Nov 2009 14:56:08 -0500

It’s not often that a parenthetical aside is the most notable part of a speech or written document, but that’s exactly the case with an opinion piece published in today’s Washington Post by that paper’s columnist Robert Samuelson.

Writing, and brilliantly as always, about health care legislation, Samuelson takes The New York Times and The Washington Post to task not just for what he sees as their mistaken characterizations of this legislation, but for their inclusion of these mischaracterizations in the papers’ news pages.

Thus does his piece, titled “Obamacare: Buy Now, Pay Later,” contain these words: “[Obama’s] health care plan is not ‘comprehensive,’ as Obama and The New York Times (in its news columns) assert, because it slights cost control…. If new spending commitments worsen some future budget or financial crisis, Obama’s proposal certainly won’t qualify as 'reform,' as the president and The Washington Post (also in its news columns) call it.”

To fully appreciate the gravamen of this parenthetical charge, you have to appreciate the lengths to which newspaper editors will go to insulate themselves from charges of editorial bias, part and parcel of which being their frequent assertions that opinions are confined to the editorial and op-ed pages.

That this criticism issues from someone with such sterling journalistic credentials is also noteworthy. Far from being an outside critic, Samuelson is very much a part of the journalistic establishment, and for him to fault the papers’ journalistic judgment — particularly when it was extraneous to the subject of his piece — is sure to be noted by his editors and colleagues.

Which is just to say that it was a brave thing he did, and something that he probably would not have done had he not been seriously exercised by the subject, and the papers’ treatment of it.

That frustration resonates in these parts because, like Samuelson, The Media Institute too is closely allied with media companies — most notably by the fact that they provide virtually all of our operating support — and yet we have felt the frequent need these days to be critical of their journalistic performance.

Many years ago I co-authored a content analysis of The New York Times and published the results in National Review. The article was titled “Is It True What They Say About The New York Times?” and much to the dismay of many of NR’s readers, we found that the paper’s public affairs reporting, on its news pages, was balanced, and contrasted sharply with the opinions on the editorial and op-ed pages.

Hard to imagine anyone writing such a piece today, about the Times or the Post.

Commissioner Michael Copps and Media Ownership

Patrick Maines — Tue, 03 Nov 2009 12:32:14 -0500

Owing to his earnest and mild-mannered (if intellectually scruffy) ways, FCC Commissioner Michael Copps has rarely inspired anger. No matter how wrong-headed his views – and he’s been wrong about virtually everything for the whole of his time as a Commissioner – he’s been accorded that kind of tolerance that people bestow on those seen to be sincere and to mean well.

That’s about to change. In the midst of the worst economy – and potentially fatal problems for that part of the economy occupied by American newspapers and broadcasters – Copps is saying and doing things that infuriate.

The most recent, and onerous, examples occurred just yesterday and today when, according to stories in Broadcasting & Cable, Copps demonstrated, yet again, how insulated he is from the world of fact and logic.

Presiding (alone) over an FCC workshop convened to hear the views of academics on the subject of media ownership on Monday, “Copps warned against putting too much stock in the doom and gloom scenarios about the health of TV and newspapers, suggesting that trying to ‘save’ the media should not translate to a lighter re-regulatory hand.”

Then today, at yet another workshop, Copps expressed the opinion (as reported by B&C) that “if the FCC can’t rejuvenate shuttered newsrooms, put the brakes on ‘mind-numbing "monoprogramming"’ and otherwise turn the tide ... of consolidation, then ‘maybe those who want the spectrum back have the better of the argument after all.’”

And so there you have it. The parlous state of the TV and newspaper industries, according to Michael Copps, is nothing to be worried about. It’s just a rumor. No need to lighten the regulatory load. In fact, if broadcasters don’t start programming the way Copps would like, maybe we’ll just take their spectrum away from them.

The series of workshops in question have one more day to run. Plenty of time, in other words, for Copps to give us the benefit of even more of this stuff.

Orts and All

Patrick Maines — Mon, 02 Nov 2009 05:12:37 -0500

FCC's "OpenInternet"

The FCC website, now in Beta, called OpenInternet.Gov is interesting. It’s not great, but it’s better than you might expect and sort of refreshing.

Ostensibly given over to a public discussion of the “important issues facing the Internet,” the site’s primary focus is on one issue facing the Internet: Chairman Genachowski’s plans to extend and codify the FCC’s so-called Internet principles.

Unlike the FCC’s main site, which is as unreliable as it is difficult to navigate, OpenInternet actually works pretty well. Much more importantly, it’s attracting, in addition to fans and the usual sycophants, a fair number of people who are critical of the Commission’s plans.

The public’s views are communicated in two ways, through the posting of opinions on the “Join the Discussion” page, and by posting comments there and on the “OpenInternet Blog” page. Check it out.

Love That AMC

Close observers of this blog will remember an earlier piece written in appreciation of the impressive AMC series “Breaking Bad.” Yesterday's was the penultimate show this season of the other award-winning AMC series, “Mad Men.” And coming to AMC on Nov. 15 is a miniseries remake of the classic 1960s series, “The Prisoner.”

All of which begs the question: What’s the deal with AMC? Are they trying to make us love them? If so, they’re succeeding.

Hugo Chavez and Friends

Many of the editors at a magazine I used to work for had “laws.” One’s law was “never go west of Fifth Avenue unless you absolutely have to.” Another’s was “the love of evil is the root of all money.” But the one that I recall most often was “when you find a good thing run it into the ground.” (The same person who authored that law once told me that in order to handle New York cabbies you need to have iron lungs, a nasty disposition, and a law degree, and he had all three.)

Anyhow, I’m reminded of the “good thing” law whenever I reflect on the endless joy it gives me to say something truly unkind about people who’ve earned it. It’s in this spirit that I’m pleased to present this week’s Trousered Ape Award to Sean Penn, Danny Glover, and Oliver Stone (who also receives a Golden Homunculus), for their support of Hugo Chavez at precisely that moment when he’s cracking down on free speech, and every other human right, in Venezuela. One can only wonder where we'd be, as a nation, without such people.

Fox News and Its Critics

Patrick Maines — Mon, 26 Oct 2009 10:23:15 -0500

Criticism of the Fox News Channel by the Obama Administration is neither inexplicable nor unprecedented. But the response to this flap by the press is all of that and then some. From the near-total silence of most, to the blinkered and self-righteous response of a few, the affair casts an unflattering light on the mindset and pretenses of much of the Washington press corps.

Take, for instance, Jacob Weisberg (please). Here’s a gentleman who, when not inflicting his shrill and politically marginal opinions on the three or four people who still read Newsweek, presides over Slate, an online magazine that counts, among its reporters and editors, precisely one (out of 57) who voted for John McCain in the last presidential election.

It’s with these credentials that Weisberg wrote the following on Oct. 17: “Whether the White House engages with Fox is a tactical political question. Whether we journalists do so is an ethical one. By appearing on Fox, reporters validate its propaganda values and help to undermine the role of legitimate news organizations. Respected journalists ... should stop appearing on its programs.”

The very idea that “respected journalists” might advance journalistic ethics by ostracizing another media company solely because of the perspective that company brings to the news of the day — as though other news organizations were value-free vessels of the purest objectivity — is hundred-proof claptrap. That this corrosive idea is the brainchild of a journalist says much more about him, and about journalists generally, than it does about the facts at issue.

Not to put too fine a point on it, the great disconnect in our national dialogue (and the reason for the popular success of Fox News) is that the press corps, and the journalism they produce, skew center-left in a country that is overwhelmingly center-right. It is (fortunately) true, as Marxist and other leftist critics are wont to complain, that the media are to the right of them. However, the media are most assuredly not to the right of the electorate, but to the left, and that’s a problem — first for the country, and also for media companies themselves.

Still, it’s one thing to have mainstream journalists who are out of sync with, and resented by, millions of people, and another thing entirely to have journalists who are unwilling to rally around a news organization under assault by this or any White House. Worse still, of course, are those, like Weisberg, who actually join the assault and invite others to do likewise.

The Knight Commission: Much Ado About Nothing

Patrick Maines — Mon, 12 Oct 2009 00:03:27 -0500

As in the title of the book about Southern belles, We’re Just Like You, Only Prettier, the report of the so-called Knight Commission, released on Oct. 2, is in some ways amusing and in other ways annoying. It amuses in the way that it showcases the most pedestrian observations, as though they were the product of unique and weighty cerebration. It annoys in the way that it pretends to a kind of grandeur and perspective – at precisely that moment in history when either would be useful – that it simply doesn’t possess.

Officially called the Knight Commission on the Information Needs of Communities in a Democracy, the Commission is a collaboration of the Aspen Institute and the Knight Foundation (assets pushing $2 billion), which paid for it all. Early on the report makes clear that this is a commission with uncommon ambition and a high regard for itself.

Referring to the earlier Hutchins, Carnegie, and Kerner commissions, for instance, the Knight Commission co-chairs write: “In pursuing our work, we have been well aware that we are following in the path of other (emphasis added) distinguished Commissions.” This, while a “background” document states that the Commission’s goal is to “start a national discussion – leading to real action.”

Given such a lofty calling one would expect the Commission’s observations to be trenchant and uniquely insightful. One would be wrong. From the foreword to the appendices, the Knight Commission report is a veritable cornucopia of the mundane, sortable into three categories: things that are already happening, and I believe should be (like rapid broadband deployment by the private sector); things that are happening, and I believe shouldn’t be (like the codification of the FCC’s net neutrality principles); and things that are not now happening and never will.

The best example of the latter comes in the Commission’s recommendation number 12 (of 15). So as not to lose any of the rhetorical flavor of this recommendation, I quote parts of it verbatim: “Imagine,” they say, “a ‘Geek Corps for Local Democracy’ where, as a post-college opportunity, American youth volunteer to help connect a physical community to the networked infrastructure…. Geek Corps participants would teach community members how to use technology…. A Geek Corps would weave together the local and the national through networks of passionate youth. Ideally, such a program would have the same stature as the Peace Corps or AmeriCorps, such that participants would be welcomed into jobs with open arms.”

Open, shmopen. The notion that vast numbers of “post-college” American youth would (or should) line up for such a thing is the kind of idea that is dreamed up only by government bureaucrats – and nonprofit organizations that think like them. How about getting or creating a job in the networked infrastructure, paying taxes, and buying things with whatever’s left over as might help the economy?

Speaking of rhetoric, that’s the other thing about the Knight Commission report. Approximately every other paragraph, even the short ones, has the density of a black hole, so that after wandering into the first sentence you find yourself being stretched thin, like a strand of linguine, and by mid-graph frantically searching for a way out of the thing.

This said, if the only problems with the Knight Commission report were its immodesty, dense language, and commonplace insights, one could just ignore it completely and go about one’s business. Unfortunately, however, the report is also marred by something else, specifically the timing and nature of its recommendations in the context of what is happening in the real world.

As it happens, on the very day that the Knight Commission released its report (on the premises of Freedom Forum’s Newseum, another billion-dollar foundation) the government announced that unemployment in the United States had reached 9.8 percent, and that more than 7 million people have lost their jobs since the onset of the current recession.

It is also a time when there is scarcely a state or municipality that is not on its financial uppers; when the national debt and federal deficit are at record highs; and when personal bankruptcies, home foreclosures, and credit card defaults are in the stratosphere and climbing. To say that these data constitute an ongoing tragedy, and the deepest kind of threat to every person in this country, is not the tiniest exaggeration.

Enter into this environment a Knight Commission report whose recommendations are notable mostly for their exquisite attention to what, in the realm of communications policy, are little more than politically correct platitudes. In this fashion, the report endorses things like governmental transparency, higher education, public libraries, broadband availability, net neutrality, diversity of media ownership, young people, old people, and ensuring that “every local community has at least one high-quality online hub.” (If only there’d been an opportunity to say something about global warming.)

In other words, the Knight Commission report is frivolous and ill-timed. This is the kind of report – with its recommendations of greater funding for public broadcasting, “public digital displays of news and culture,” a “federal tax credit for the support of investigative journalism,” and the aforementioned Geek Corps for Democracy – that should be released, if at all, only at a time when the country is so prosperous that people who should know better might actually go for it.

It didn’t have to be like this. It would have been possible, even at this time, to create a commission that investigated the information needs of communities, in the context of our economic crisis, that was relevant and helpful. It just didn’t happen.

To paraphrase Groucho Marx (“I’ve had a wonderful night, but this wasn’t it”), you can find some stimulating ideas about the future of journalism and the information needs of communities, but not in this report.

Keeping the Bluest of the Blues Alive

Patrick Maines — Mon, 28 Sep 2009 11:22:41 -0500

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

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

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

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

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

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

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

Chairman Genachowski's Modest Proposal re Net Neutrality

Patrick Maines — Tue, 22 Sep 2009 09:32:47 -0500

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

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

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

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

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

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

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

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

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

A Unitary First Amendment - Redux

Guest Author — Mon, 14 Sep 2009 11:53:30 -0500

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.

“[W]e don’t put our First Amendment rights in the hands of [government] bureaucrats.” What an extraordinary statement for the Chief Justice of the United States to make when one considers the Supreme Court’s long history of allowing Federal Communications Commission (FCC) content-based regulation of broadcasting and other electronic media!

Chief Justice Roberts made this statement in last week’s oral argument of Citizens United v. Federal Election Commission. Citizens United, involving “Hillary: The Movie,” is the little case that could – could just restore a strong measure of freedom of speech in the most critical of all contexts, namely political speech.

As described in an earlier post occasioned by the first round of oral argument in this case last spring, the narrow issue is the provision of the McCain-Feingold “Bipartisan Campaign Reform Act of 2002” (BCRA) that bans the use of corporate funds for “electioneering communications” via broadcast, cable, or satellite close to an election. In the earlier argument some members of the Court were astounded by the government’s contention that Congress also would have the constitutional power to similarly ban printed material, including books.

This apparently led those members of the Court who long have been troubled by limitations on political speech imposed in the guise of campaign finance reform to set re-briefing and rearguing for an unusual and extended one-day September session. And, the Court broadened the issue for rehearing by asking the parties to discuss whether the Court should overrule not only that part of its 2003 opinion in McConnell v. F.E.C. upholding the specific BCRA provision, but also the Court’s 1990 opinion in Austin v. Michigan Chamber of Commerce. In Austin, over strong dissents, the Court upheld a state’s restrictions on independent expenditures from general corporate funds for ads supporting or opposing a candidate for state elective office.

Not surprisingly, the Court’s actions with respect to Citizens United prompted more than 40 amicus briefs with what the New York Times called “an array of strange bedfellows and uneasy alliances” and set the stage for high drama. How far will the Court go in affirming the political free speech rights of corporations?

Arguing briefly for Senator Mitch McConnell as amicus, Floyd Abrams reminded the Court that in New York Times v. Sullivan the Court eschewed available narrow grounds to resolve the case and instead issued a broad ruling to fully vindicate the vital First Amendment interests at stake. And he told Justice Sotomayor that, similarly here, this is the way the Court would do more good than harm.

Solicitor General Elena Kagan, making her debut appearance on behalf of the FEC, tried to reassure the Court that the government’s position on printed campaign speech had changed. Don’t worry, she suggested, the FEC has never tried to ban a book, though when pressed she immediately stated a pamphlet might be different. And this is when Chief Justice Roberts made his comment about not relying on FEC bureaucrats to protect the First Amendment.

But the Court has left countless First Amendment matters in the hands of the government bureaucrats at the FCC at least since Justice Frankfurter’s 1943 opinion in the seminal NBC v. U.S. case in which, in a single paragraph, he subordinated the First Amendment to the public interest standard of the Communications Act. This later caused Professor Harry Kalven to comment that: “The passage catches a great judge at an unimpressive moment.”

Over the years, the Court’s deference to the FCC has allowed all manner of infringements on free speech in the name of the amorphous public interest, from the now-defunct (but perhaps soon to be resurrected in some version) fairness doctrine, to the recent debacle over broadcast “indecency,” and maybe to a threatened similar campaign against violence in the media.

But members of the FCC, no less than of the FEC, have no expertise or competence in First Amendment matters. This is not a comment on any present or former members as individuals; rather it is the basic recognition that the First Amendment disables any government bureaucrat from claiming or exercising any province over matters of free speech or free press. “Congress shall make no law” is a straightforward “hands-off” policy for government bureaucrats.

During last week’s argument of Citizens United, Justice Breyer suggested to Ted Olson (representing Citizens United) that Congress had a compelling interest for the restrictions it enacted and thought it had narrowly tailored them. So, the justice asked, should the Court really second-guess Congress? Mr. Olson forthrightly replied, “You must always second-guess Congress when the First Amendment is in play.” Exactly so, regardless of the medium of communication at issue, and a fortiori must courts stringently second-guess the FCC when it is infringing free speech, directly or indirectly, as it is wont to do all too frequently.

Whatever the ruling in Citizens United, we can only hope the chief justice’s words reverberate loudly the next time the FCC seeks to sustain an infringement on free speech or press in the name of the public interest.

Citizens United and 'Hillary: The Movie'

Patrick Maines — Wed, 09 Sep 2009 08:24:40 -0500

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

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

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

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

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

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

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

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

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

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

It’s not a pretty picture.

The AP and Joshua Bernard

Patrick Maines — Tue, 08 Sep 2009 10:28:59 -0500

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

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

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

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

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

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

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