A Disappointing Delay on Cross Ownership

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

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

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

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

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

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

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

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

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

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

That would be a change we could believe in.

A Unitary First Amendment

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

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

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

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

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

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

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

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

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

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

Professor Winer is also the Faculty Editor of Jurimetrics.

Blaming the messenger, and why not?


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

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

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

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

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

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


'Fixing' CNBC

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

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

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

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

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

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


The First Amendment's Fleeting Friends

If anyone has seen his share of First Amendment friends and foes over the years, it’s Floyd Abrams, that iconic New York attorney whose name can hardly be uttered without the words “First Amendment” somewhere in the same sentence.

But, as Floyd pointed out in a new Speaking Freely opinion paper this week, the real problem facing the First Amendment is not outright opposition – everyone claims to “care about” this constitutional guarantee, after all.  The problem lies with many of its “friends,” who invoke the First Amendment at their convenience to further their own agendas, without much regard for the underlying principle itself.  And who then sit out First Amendment challenges that don't suit their ideological taste. 

Liberals and conservatives are equally guilty of being fair-weather friends, Floyd notes.  “Liberals vigilantly seek to protect the rights of adults to receive not-quite-obscene materials on the Internet, but seem all but indifferent to UN-sponsored efforts to ban the supposed ‘defamation’ of Islam.  Conservatives care deeply about such efforts to stifle speech, but offer little if any protection to American students when they mouth off outside of their schools.”

Floyd poses a telling question for each ideological camp: Would conservatives be so adamantly opposed to a return of the Fairness Doctrine if talk radio were leaning left?  Will liberals get over their long-held belief that money is inherently corrupting of political speech, now that candidate Obama raised staggering amounts of cash (while refusing federal funding) to reach the White House?   

The title of Floyd’s opinion paper says it all: “First Amendment Deserves More Than Fleeting Friends.”  Liberals and conservatives alike, take heed – even if it hurts.

Truth Is No Longer Absolute Libel Defense

By guest blogger ASHLEY MESSENGER, Editorial Counsel to U.S. News & World Report, L.P., Washington, D.C.

The U.S. Court of Appeals for the First Circuit recently ruled in Noonan v. Staples, Inc. that truth is not necessarily a defense to a libel claim.  This is a troubling holding, as libel is generally defined as a false, defamatory statement.  

But Massachusetts has a law that allows a true statement to be the basis of a libel claim if the statement is made with “actual malice,” which the First Circuit interpreted as “ill will.”  The ruling appears to be predicated on the fact that the plaintiff, Alan Noonan, is a “private person” and the statement was not a “matter of public concern.”

It is undisputed that Alan Noonan was fired from Staples for violating the company’s expense policies.  A vice president sent an e-mail to Staples employees stating that Noonan was fired for failure to comply with expense policies and reminding employees of the importance of compliance.  The court allowed his claim to go forward to let a jury decide whether the statements were made with “ill will.”

But if a private person can sue for libel when a true statement is made with ill will, the courts will be flooded with victims of petty gossip and spiteful ex’s.  A cheating spouse, for example, would now have a libel claim if the aggrieved spouse vents to friends about the betrayal with “ill will.”

In addition, there is the policy matter of permitting a person to recover damages when their reputation is damaged with good cause.  If a spouse cheats and that true fact is disclosed, his or her reputation may be damaged, but justifiably damaged.  Do we truly want to permit people to be compensated for their own bad behavior?

Finally, there is a problem with the increasingly false distinction between matters of “public concern” and “private” things.  The value of hearing truthful information is the same reason reporters use anecdotes in newspaper stories.  It makes a situation more real when you can associate a name and specific event to an issue rather than relying on vague assertions of what might or might not have happened.  

In fact, if a reporter had used Noonan’s story as anecdotal evidence of why it is important to comply with company policies, it should have been deemed a matter of public concern.  The correct result, whether it’s a company or a reporter, is that all speakers should be protected by the First Amendment.

This post is adapted from a Media Institute  Perspectives issue paper by Ashley Messenger on this topic.  View the full paper here.

Ashley Messenger is Editorial Counsel to U.S. News & World Report, L.P., and an adjunct faculty member at American University School of Communication in Washington, D.C.  The opinions expressed herein are those of the author, and not of these institutions.

What Do Political Reporters Know?

One of the differences between, say, your everyday community organizers on the one hand, and investors on the other, is that while both have opinions, the investors have money.  Not only do they have some money, in a very practical sense they have all the money. 

This is an important thing to know these days because, as measured by the relative value of every asset class — from common stock to collectibles, real estate to commodities — investors of all sorts are making it clear by their actions that they are deeply worried about the future, and growing more so.

Many people, perhaps most, know this already.  They know it because they are among those who have already lost their jobs, or fear they soon will.  Or because they have seen the value of their 401K plans cut by half.  Or because they own houses whose value has declined so much they no longer have any equity in them.

Or perhaps they know it because they are avid consumers of the financial and business press; media outlets like Barron’s, the Wall Street Journal, Forbes, Fortune, the Economist, IBD, CNBC.

If, however, they are among the lucky few who have not been personally wounded by the current crisis, and get their news of the nation not from financial journalists but from political reporters online or off, stories reaching them of investor angst may seem like a kind of nasty and unwelcome rumor, like the warmongering of a distant and unimportant country.

And why wouldn’t it seem that way to someone munching solely on the crudites served up by our political journos?  Instead of digging into the facts of what the markets are saying, they offer up one story after another sourced by a political pollster or partisan strategist.

Rather than write about the substantive aspects of our financial and economic problems, they write about which party or politician is pulling from the gloom the greater number of political points.  In other words, they write about opinions — their own, those of the political class, and those of what are said to be the people.

One of the most durable sayings in the world of finance is that money goes where it’s treated best.  This isn’t a political statement, or an opinion, or a matter of manners and morals.  It’s a physical law, like gravity.

And where is money going right now?  It’s going into gold that costs more than $1,000 per ounce, and into short-term Treasuries that are paying less than inflation.  And what is that telling us?  It’s telling us that investors — professionals and amateurs, Republicans and Democrats — are scared to death and doubt, given what they know now, that our government is pursuing strategies that will help.

But don’t expect political reporters to tell you much about any of this.  They didn't do so last fall, when the economy might have been carefully examined in the context of the national elections, so why would they do so now?  They’ve got too many opinions to spin to get bogged down with something as dreary as facts.

And Now for Something Entirely Different...

In Washington, the lingua franca of policy discussions is "lobbyspeak," a form of communication that seeks, among other things, to conceal any hint of personal belief or interest.

The allure of lobbyspeak is that it allows the speaker to say things in a way that inoculates him from the risk that someone might denigrate his arguments as being just his own opinions, as contrasted, say, with positions derived from case law, or precedent, or that runaway favorite, the “public interest.”

Considered in the larger scheme of things, this is not the worst thing in the world.  Among the initiated, after all, it is easily spotted, and in some cases even appreciated -- like a risqué double entendre -- for its naughty cleverness.  But it can be, and often is, remarkably tiresome.

Which is why I write today to commend a speech given in Washington this week by the president of the Consumer Electronics Association, the people who host the annual Consumer Electronics Show in Las Vegas.  Lobbyspeak it was not.

As reported Tuesday in the headline of a Broadcasting & Cable story, "CEA president Gary Shapiro says media has 'failed' the country by poorly analyzing important stories," the speech excoriated the press for their insufficient attention to the substantive aspects of the recently enacted stimulus legislation, and our financial crisis generally.

In a town in which many, association executives particularly, are loathe to say anything that might upset anyone -- the press and policymakers especially -- Shapiro's speech before The Media Institute was stunningly different, and frank, and courageous.

Eating Their Seed Corn

From the New York Times comes word this week of big changes looming at one of the country’s oldest newsweeklies.  “Newsweek,” they say, “is planning a redesign and some shifts in content to fashion an opinionated take on events, aimed at a much smaller, and wealthier, readership.”

In truth it doesn’t come as a surprise.  In many ways it isn’t even news.  But it’s disappointing all the same to see one of the country’s mainstream media outlets consciously, and proudly, abandon the time-honored journalistic standard of objectivity.

Nobody’s going to run off and join the circus in consequence of this development because, as seen during last year’s election campaign, virtually all of the mainstream media have demonstrated an ability to abandon objectivity whenever it pleases them.

As mentioned here before, nowhere was this more lamentable than in the coverage of the presidential candidates’ take on economic issues.  When this point was made in an earlier blog, some people took it to be a partisan observation.  But it wasn’t, and isn’t.

Even if the media had done a credible, and objective, job of pressing both candidates on their plans for the economy, Obama would still have won.  Maybe even by a larger margin.  This, because no matter how little Obama may know about economics, John McCain knows even less.

But look how much better off we’d be if the press had challenged Obama to give more than lip service to these kinds of issues.  In addition to a better informed public, we might also have an economic stimulus plan that reflected more of the thinking of the president than of Nancy Pelosi and Harry Reid.

The political and societal ramifications aside, there is another downside to the media’s embrace of opinion over objectivity: It’s unlikely to work, online or off.

As evidence consider what one supposes is a model of future Newsweek reportage, a story by Jon Meacham and Evan Thomas.  Provocatively titled “We Are All Socialists Now,” the piece purports to document a profound shift in our collective view of the correct form of government.

What's striking about the article, however, is that it is about 90 percent opinion, with little or nothing of substance to it.  There’s no there there; nothing that informs, analyzes, or even segues.  Just a kind of fluffy amalgam of the pedestrian and superficial, in which most of the intellectual energy seems to have gone into the title.

A good exercise in times such as these is to ask oneself how much you would  be willing to pay for a thing if you had to pay to receive it.  The question can be asked of all kinds of things.  Were it asked of this Newsweek article, the guess here is that few people would offer to pay anything.

A few months ago a Microsoft executive gave a speech to some online publishers in London in which he said that publishers’ decisions to give their online content away for free had been a disastrous mistake.  And now we have the first, but undoubtedly not the last, of the mainstream media to openly embrace opinion journalism as a model for the future.

The question not yet answered is what – after they have surrendered first their content and then their journalistic patrimony – the media will do if all this fails to halt the slide?

Hate Speech and the First Amendment

“If you bring up the First Amendment, you’re a racist.”  In so many words that’s the message – or threat – to anyone who would dare question the constitutionality of a proposal that the government launch an inquiry into media content.     

The threat is leveled by the National Hispanic Media Coalition (NHMC) in a Jan. 28 petition asking the FCC to conduct an inquiry into hate speech in the media.  The petition was written for NHMC by the Institute for Public Representation at Georgetown Law and the Media Access Project.

Ironically, the names of both groups (“Public Representation,” “Media Access”) would seem to suggest support for freedom of speech.  Here, however, the ultimate intent of these groups is to eradicate certain types of speech (and speakers) in the media, and to chill the speech of anyone who would question that endeavor.   

The petitioners throw down the gauntlet to First Amendment challengers with this line: “The NHMC understands that those who would prefer hate speech to remain under the radar will claim that such an inquiry violates the First Amendment.”  

Let me say up front that I find racial slurs and other forms of bigoted, biased, hateful speech to be utterly abhorrent.  Such speech usually emanates either from small-minded, obtuse bigots, or from persons who are smart enough to know better but are consumed with hate, anger, and at bottom, fear.

However, I do challenge the constitutionality of an inquiry that could lead to the banning of speech – not because I’m a bigot (as the petitioners imply), but because I happen to be a staunch supporter of the First Amendment.   

Like it or not, the First Amendment was designed precisely to prevent government censorship, not only of popular speech but of unpopular speech – even so-called “hate speech.”  

There are some narrow exceptions, like speech that incites immediate violence.  That seems to be the slim reed on which NHMC tries to build its case.  The petitioners say that there has been an increase in hate speech in the media.  Then they say that there has been an increase in the number of violent hate crimes against Hispanics.  By that juxtaposition they try to imply that there is a causal relationship between hate speech and hate crimes.  

But the petitioners offer no evidence – only vague assertions like “hate speech over the media may be causing concrete harms.”  Even a 1993 report by NTIA, which the NHMC petition quotes liberally,  “found that ‘the available data linking the problem of hate crimes to telecommunications remains scattered and largely anecdotal,’ and that [NTIA] lacked sufficient information to make specific policy recommendations.”

So what’s going on here?  NHMC and its public-interest collaborators take great pains to point out that they are only asking for an inquiry into what’s happening out there, “merely the collection of information and data about hate speech in the media” – not for any overt censorship.  Oh, and of course they’re not calling for a reinstatement of the Fairness Doctrine, they are quick to note.

But as we know, FCC notices of inquiry have a way of turning into rulemaking proceedings.  And if a rulemaking proceeding aimed at outlawing hate speech had the effect of outlawing conservative talk radio ... who needs a Fairness Doctrine?

This is no time for First Amendment advocates to be cowed into silence by bogus challenges to their political correctness.  Speech isn’t always pretty, or pleasing, or even palatable.  That’s why we have a First Amendment.