Scope: The purpose of this paper is to
address some issues regarding the "autonomy" of media from government.
It is designed to provide some shared background, and hopefully stimulate
a discussion between those most familiar with media in the newly independent
states of the former USSR, and those whose experience is primarily limited
to the United States of America. Although the choices and differences between
"autonomous" and "state controlled" media may at first
seem simple, the more one explores the issues the more complex they become.
Moreover, for such a comparative discussion to be successful participants
will need to know much more about each other's history, politics, sociology,
language, legal systems and culture than is likely to be the case. This
paper does not pretend to expertise about broadcasting and broadcast law
in the old USSR, or the Newly Independent States. It emphasizes background
about the USA for our visiting colleagues. Those from any country who find
it simplistic should feel free to scan it. Those who would like more background
will find it in the appendices and endnotes. Endnote calls are indicated
in the text within parentheses. [It is being "republished" at
this time (September 17, 1997) to make it more readily available to the
participants at the Commission on Radio and Television Policy: Central
and East Europe Public Broadcasting and Globalization Conference, Vienna,
Austria, September 19 and 20, 1997, and those attending the Journalist
in Cyberspace: A Warsaw Journalism Center International Conference, Warsaw,
Poland, October 11-12, 1997. -N.J.]
Each nation's broadcasting system is a function of its history, economic
and political systems. There are similarities among the systems that emphasize
state control; similarities among those that utilize public corporations;
and similarities among capitalist, advertiser-supported broadcasting systems.
But each country's system is also unique in a variety of ways -- and probably
should be.
This paper emphasizes the USA system of broadcasting. That emphasis
has been chosen not because it is the only system, or the best, but because
it is (1) one of the major systems, (2) is seen as a model, or benchmark,
by many (whether rightly or wrongly!), (3) demonstrates a mix of government,
public, and private systems, (4) well illustrates the complexity, strengths
and weaknesses of one country's approach, and (5) is best known to the
author.
In order to understand the "autonomy" of the USA media,(2)
it is useful to begin with the First Amendment of the USA Constitution,
and the reasons why Americans think it is important. And in order to understand
its real consequences it is necessary to know at least a little bit about
the American court system.
The relevant language of the First Amendment is very general. It says,
simply, "Congress(3) shall make no law abridging the freedom of speech
or of the press."(4)
The real meaning and effect of this language can only be understood
once one has at least a general understanding of the USA systems of government.
Where
the First Amendment fits in the U.S. governmental and legal system.
The USA has fifty-one legal systems, each with its own executives,
legislatures, and courts. One is the national, or what we call federal,
system (because it includes a "federation" of states). This includes
the President, Congress (a "House" and "Senate"), and
federal judiciary, or courts.(5) The other fifty systems are those of the
fifty states that make up "the United States of America."(6)
All governmental units (from the President to mayors of cities) are
subject to the restraints of the USA Constitution (as interpreted by the
judges).
The judges who preside over the federal courts are, in almost every
sense, truly and totally independent of any influence from the President
or Congress. They are selected by the President, and approved by the Senate.
But once approved they are judges until they die (or resign), and cannot
be removed or intimidated. Most presidents, legislators and judges have
taken this "judicial independence" very seriously and honor it
in both letter and spirit.(7)
It is important to understand this genuine independence of the judges
in order to understand the true meaning, and operation, of the First Amendment
to the USA Constitution. What would happen if the constitutional protection
from government interference in the operations of newspapers and broadcasting
stations was only enforced by judges who could be punished, or removed,
by the President at any time? Such a constitutional "guarantee"
would not provide much protection for the newspaper editor, or broadcaster,
who wished to criticize the President.
Where
the First Amendment fits in the hearts of the people.
Any law, to be effective, must be understood and accepted in the hearts
of a majority of the people. The First Amendment is not an exception. It
is not enough that it is "the law." Officials and citizens must
understand why it is a good idea to permit the expression of information
and ideas with which they disagree. The information and opinions may in
fact be ones that they hate, that may make them look very foolish (or corrupt),
and that may make them very angry.(8)
The idea of "free speech and press" is not a new one in the
USA. The country has lived with it for over 200 years. It is an idea Americans
grow up with. They experience it, learn about it in schools, and hear it
debated on radio and television.(9) Even secondary school and college students,
who publish school newspapers, argue with professors and college presidents
(who may wish to censor something students want in the paper) that the
students "have First Amendment rights."(10)
There are individuals (or groups, or officials) who are angered by
particular ideas and propose that speaking those ideas should be illegal.
Sometimes they convince a significant number of citizens that "something
should be done" about the expression of ideas that they don't like.(11)
But there are also citizens' organizations -- such as the "American
Civil Liberties Union" and "People for the American Way"
-- that stand up for the First Amendment, and almost always convince a
majority of Americans that "free speech," even awful speech,
is better than censorship. As they say, "the remedy for bad speech
is more speech, not censorship." And the independent judges have been
very careful to protect First Amendment rights.
What
are the values and consequences of the First Amendment?
So, why are people willing to tolerate the expression of information
and opinion they dislike? Why does the USA have a First Amendment? Why
is the country better off with it than without it? Or, if not better off,
in what ways is life different because of it? What are the values and consequences
of the First Amendment?
As the reader has probably guessed, a great deal has been written about
these questions over the last 200 years -- by judges, by professors and
journalists, by lawyers and political scientists, and many others. Everyone,
it seems, has an opinion about the matter. So it is not possible to summarize
all of that literature here. But even a brief survey can be useful.
Arguments affirming the value of the First Amendment fall essentially
into five categories: (1) its role in meeting the needs of a self-governing
citizenry to be informed, (2) its importance to the search for truth in
a "marketplace of ideas," (3) its relationship to the "checking
value" of the media, as it watches for, and reports, abuses by large
institutions, (4) its bearing on "self-actualization," basic
liberty, and individual freedom, and (5) the "safety valve" it
provides, permitting dissidents the opportunity to express their dissatisfaction
verbally, rather than through violence. Following is a brief explanation
of each.
(1) Self-governing citizenry. In theory
-- and also in practice -- "democracy" means that each citizen
is a "government official," with a responsibility for first becoming
informed about the issues of the day, then forming and expressing opinions
about what should be done, and finally trying to persuade others to agree
with her or his ideas. Ultimately from this process of becoming informed,
and trying to persuade, comes a popular consensus as to what action should
result. During 1993 and early 1994, for example, there has been a very
active public debate in the USA about how we should provide health care
to all of our citizens. (We do not yet have a consensus on that one!)
Most Americans recognize their citizenship responsibility, think self-
governing is a precious thing -- even something worth fighting to protect
-- and make some effort to participate.(12)
Those who wrote the USA Constitution believed that if the opportunity
of self-governing was to be meaningful, it was absolutely essential that
citizens have the freedom to get access to as much information and opinion
as possible(13) -- and to contribute personally to the public dialogue.
Any governmental effort to restrict that flow of information and opinion
would be a death blow to the whole idea of self-governance, something "un-American,"
undemocratic, and unconstitutional.(14)
(2) Marketplace of ideas. What is "truth"?
Clearly, its meaning depends on the context in which it is found. A religious
truth may come from an ancient text, or a religious leader. A scientific
truth may come only from the results of experiments that can be repeated
by other scientists who get the same results. A political truth may be
little more than the opinion of the majority at the moment. But however
one defines the word, the search for truth will certainly be aided by the
widest possible access to the full range of available information and opinion.
This is sometimes referred to as having access to a "marketplace
of ideas." All possible information, ideas, theories and opinions
are laid out on tables in the market. Those that "sell" come
to be viewed as "truth" in the marketplace.(15)
So this is yet another reason for, or consequence of, free speech.
Regardless of the form of government, it is believed, a society will gain
in every way -- in prosperity, culture, science, the arts, politics --
to the extent that its citizens' search for truth is free and open.
(3) Checking value. Free speech and press
are sometimes called "a fourth branch of government."(16) To
speak of print and broadcast journalists in this way simply presumes, without
even discussing the matter, that they are autonomous of government.(17)
This value of the First Amendment does not relate to the content of
speech, as such, but rather to the process and consequences of gathering
and disseminating information.
The need for a "checking value" is based on the assumption
that every institution in society, not just government, is capable of becoming
ingrown, resistant to change, secretive, fundamentally corrupt, and more
interested in perpetuating itself than in doing what it was created to
do.(18) This can be true whether the institutions are businesses, universities,
churches, hospitals, or military and police units.(19)
Of all the ways to avoid these tendencies and provide a "check"
on such abuses, one of the most effective is believed to be free and independent
journalism. Reporters can go anywhere, ask anything, demand documents,
take pictures, listen to complainants, and be quite innovative in uncovering
abuses.(20) This is called "investigative reporting." Because
the reading, listening and viewing audience likes to learn about such abuses
or scandals, those who own the media are willing to have them reported
and advertisers are willing to advertise in such media.(21)
Thus, another value of the First Amendment is that it helps keeps other
institutions in the society honest and efficient.
(4) Self-actualization. Another argument
for the First Amendment is also independent of the content of speech. It
is a value related to concepts like "liberty," "freedom,"
"self-esteem," "self-expression," "personal growth
and development," "education" and "culture." For
these I use the single expression "self-actualization." By this
I mean the process by which an individual realizes, through his or her
effort, as much of their potential as possible.(22) Such a process necessarily
includes the opportunity to become informed, educated, cultured -- and
to express oneself intellectually, creatively, and artistically. For a
government, or other institution, to stifle free thought and expression,
or to forbid some subjects or opinions, obviously impedes individuals'
self-actualization. For the purposes of this category, the ideas expressed
may contribute nothing whatsoever to the society's self-governing, search
for truth, or checking value. If they contribute to the growth of the individual
in question, this value of the First Amendment is being served.
(5) Safety valve. A safety valve on a
boiler can release steam before the boiler builds up pressure and explodes.
The First Amendment also serves this purpose for a society.(23) A famous
civil rights leader in America, Dr. Martin Luther King, once said, "Having
been denied access to radio and television we have had to write our most
persuasive essays with the blunt pen of marching ranks." Fortunately,
he was an exponent of "non- violent" strategies for change. But
his reference to a "march" as an "essay" helps make
the point. Other, less skilled essayists, have chosen to shoot, loot and
burn in order to be heard.(24)
So this final value furthered by the First Amendment is also unrelated
to the precise content of the speech. It is, perhaps, related more to the
preceding value of self-actualization. Here the value is the belief that,
if people are free to present their grievances through speech and writing,
if they have the opportunity to get the attention of their fellow citizens
and officials, if they have the feeling that they have been "heard,"
they are much less likely to use violence as a means of protest and reform.(25)
Free
Speech in Practice
Who's abridging
the speech?
As discussed above, the First Amendment speaks only of "Congress"
not abridging the freedom of speech or of the press.(26) So what about
"abridgments" of speech by institutions and individuals other
than governmental units? With few exceptions, unnecessary to our discussion,
there is no protection whatsoever.
Most newspapers and magazines have something like a "letters to
the editor" column. Anyone can send a letter for publication, which
may be, in effect, a short opinion article. What if the newspaper publisher
disagrees with the opinion expressed or fears that it will anger readers
(or advertisers)? What if he or she is prejudiced against the author for
some reason? Must the letter be published?
The answer is that the publisher has no obligation to print the letter.
The First Amendment only applies to units of government. The publisher
is not a unit of government. Therefore, the publisher is in no way restrained
by the First Amendment.
Nor do reporters and writers have free speech rights. They are employees.
It is the owner of the newspaper, the publisher, who has the First Amendment's
protection. The publisher, and the editors whom she or he hires (and can
fire), can re-write the reporter's article, "censor" it entirely,
and -- ultimately, if they want to -- fire the reporter.
The only way reporters can acquire full First Amendment rights is to
purchase their own newspapers or broadcast stations.
Even if a newspaper attacks someone it has no obligation to give that
person an opportunity to buy space in the paper to reply. The Supreme Court
held a state law unconstitutional that was an effort to provide such a
right. The Court said such a law would violate the newspaper's First Amendment
rights to censor from its pages anything it chose.(27)
Not even broadcasting is treated differently -- in spite of the scarcity
of broadcast frequencies. There are some exceptions.(28) But in general,
even though a broadcaster has commercial time for sale he or she can refuse
to sell to someone if the broadcaster does not like the message.(29)
The values undergirding the First Amendment, discussed above,(30) are
of course equally applicable regardless of who is doing the abridging of
free speech. If a corporate owner directly, or in response to advertiser
pressure, keeps particular information or opinion from being printed or
broadcast, the audience is just as ignorant as if the censoring was done
by some unit of government. And yet the First Amendment provides no "autonomy"
for journalists, or members of the public, from corporate censorship.
Matters
of grace and matters of right.
In understanding free speech in practice, it is important to distinguish
two very different circumstances. One is free speech as a matter of legal
right, based in the First Amendment of the Constitution and enforceable
in courts of law. The other is free speech as a matter of grace. By "grace"
we mean an opportunity to speak publicly that has been granted a speaker
or writer by a broadcaster or publisher because the owner wants to do so.
For example, a city could not refuse to grant an organization the right
to use an auditorium owned by the city, and available for rent to public
groups, because the mayor did not like what the organization's speaker
was going to say. It could not refuse to grant the organization a permit
to have a demonstration, or parade, because of content. For it to do so
would be a violation of the First Amendment. The organization could go
to court and force the city to make the auditorium, or streets, available.
In fact, most publishers and broadcasters, as a matter of grace, permit
quite a variety of viewpoints through the media they own. They may deliberately
seek out "liberal" and "conservative" spokespersons.
Some will publicize letters from the audience that are very critical of
the station's programming or newspaper's stories. They may invite guests
onto their programs, or editorial pages, whose views represent a wide range
of ideologies different from those of the owner.
It is important to understand this point. It is not the case that owners
always censor their employees' and others' speech to reflect the owner's
views. They may have any one of a number of other motives in mind. (1)
More openness makes it easier to hire, and keep, good journalists. (2)
More diversity and controversy may increase the number of readers, or television
watchers. Since publishers and station owners are in the business of selling
their audience to advertisers, the larger the audience the richer the owner
becomes. (3) A third reason may be the owner's genuine commitment to the
values of the First Amendment, even though not required by law. Whatever
the reasons may be in each case, the fact is that a tremendous range of
information and opinion is available to the American audience from thousands
of radio and television stations, newspapers and magazines.(31)
The point is simply that the owner always retains the potential power
to keep from the public any information or opinion it chooses to censor.
Such variety as the owner provides, or permits, comes as "a matter
of grace" not as "a matter of right."
Autonomy
and Democracy
A democratic society confronts a genuine dilemma with regard to its
mass media.
The First Amendment is designed to produce the fertile soil in which
self- government can grow, make possible the search for "truth"
in a marketplace of ideas, the pursuit of self-actualization, a check on
institutional abuses, and a safety valve alternative to violent strategies
for change.(32)
If these values are to be realized, units of government cannot be given
the power to determine what is "acceptable" speech. Speech must
be "autonomous" of such governmental control.
But does this mean that there is no role for democratic participation
in the content of speech? For many years there has been a debate in the
USA about the impact of "violence" in the media on the real (and
increasing) levels of violence in our communities. If a majority of the
American people want some control over the television programming that
they and their children watch, should they be permitted to have it? Because
of genuine commitment to First Amendment principles, even those public
officials advocating such controls have been very hesitant to propose governmental
action. (They often speak of industry "self-regulation" -- which,
historically, has not worked.)
Can we make a meaningful distinction between (1) restraints on speech
that reflect democratically determined standards of propriety and social
values, on the one hand, and, on the other, (2) restraints imposed by a
political party, or government, that seeks to control the media to cover
up its mistakes, oppress its opposition, and stay in power? Do we have
to forbid any of the former in order to guarantee there will be none of
the latter? Do citizens have no right to help shape the standards of these
privately-owned media institutions that, some believe, have more influence
on a culture (especially on its children) than family, church and school
combined? This is an ongoing debate in the USA, and one that contributes
substantially to the complexities in the choices between "state controlled"
and "autonomous" media.
Why do these problems, this dilemma, arise? The desire for, and need
for, some measure of governmental "regulation" comes about precisely
because of the insistence of large corporate media firms that they have
the power to censor. In spite of their near-monopoly power, the courts
have acquiesced in the notion that the constitutional right to speak necessarily
includes the right to keep others from speaking. That being the case, some
form of regulation is demanded by the public.
Is there an alternative to some form of regulation?(33) Yes.
The concept
of "public access."
"Access" to media can be used to describe a variety of opportunities,
or rights.
It could refer to a right to receive information and ideas. That might
take the form of importing literature from a country from which one's government
has forbidden importation. It may be a desire to have a shortwave radio
receiver, or "satellite dish," capable of receiving radio or
television signals from other countries when such receivers are prohibited.
"Access" is also used to describe an individual's right to
enter information into the near-monopoly conduits that constitute our mass
media: a city's only (or dominant) newspaper, radio or television station.
To distinguish this meaning from the right to receive, it will be referred
to as a "right of entry."
As discussed above,(34) there is no such legally enforceable "right
of entry" at this time in the USA into near-monopoly newspapers and
broadcasting facilities.(35) The only exception would be the so-called
"community access" channels on local cable television systems.(36)
Thus, the point for now is simply that such an approach would be an
alternative to government regulation of near-monopolies. If it is true
that "the answer to speech is more speech"(37) then a "right
of entry" can substitute for virtually all alternative regulation.
Citizens need not rely on a "fairness doctrine."(38) They, personally,
could get entry into the main conduits of media distribution to say whatever
they wanted, however they wanted. They would have a personal remedy.
Such a system would be, in many ways, the purest form of "autonomy."
But it would require a radical modification of USA media industry practice
-- not to mention Supreme Court constitutional law decisions!
Even if such forms of direct access were available, would journalists,
politicians and the general public make use of it?
Self-censorship.
"Censorship" is normally thought of as something imposed
from the outside, usually from some branch of government. But one of the
most invidious forms of censorship is self-imposed. It is also probably
the most common.
Journalists may engage in self-censorship, avoiding the story they
know will displease their publisher, editor, colleagues -- or other powerful
individuals who may be able to do them harm.(39) Self-censorship may come
from lack of courage, a desire to avoid controversy, or perhaps even an
unwillingness to risk getting fired. It may come from the social pressure
of neighbors, or co-workers. It is re-enforced by laziness: it takes a
lot more time and trouble to investigate a story than to re-write a news
release.(40) It may be very difficult to get the editorial approval to
take on such an assignment -- or the budget and other resources necessary
to carry it out successfully.
Whatever the reasons, the impact on audience knowledge (and ignorance)
is fully as great as if a government censor were sitting in the newsroom.
And similar, self-imposed pressures apply to everyone, journalist or
not. Those who are not experienced, or lack self confidence, in speaking
out in public may remain quiet and shy. Few will want to risk the anger
of powerful individuals in the community. Many individuals want to avoid
association with controversy rather than seeking it out.
So even though "access" is theoretically available to all,
it may not be exercised in fact.(41)
Conclusion
The purpose of this paper is to provide a shared base of information
and insight (however flawed!) into some of the issues surrounding "autonomy
of the media." It attempts to show both the virtues and values of
a free and independent media, and the difficulties in creating such a condition
in any country -- including the USA.
Appendix:
Alternative Systems of Broadcasting
This paper is premised on the assumption that the only choices for
national media (television) systems are "state controlled" and
"advertiser-supported, for profit, 'autonomous' (from state control)
media corporations." That is, of course a false assumption. There
are many other alternatives.
(a) In the first place, although broadcasting
often is centrally controlled it need not be. Radio began in the
USA as local stations. Networks only came later. In fact, it is only local
stations that are licensed; networks as such are not. The elected officials
who created the first laws (Radio Act of 1927) were very concerned about
central control over such a powerful medium. Much of the law, and FCC regulation,
is designed to encourage the distribution of this power throughout the
country. (Local owner-operators are preferred as licensees; there are limits
on transmitting power, the number of stations one licensee can operate,
the terms of network contracts with local stations; and there is a responsibility
to serve the needs of the local community.) By contrast, the Japanese public
broadcasting system, NHK, primarily produces its programs centrally and
"local stations" do little more than transmit them to television
receivers throughout the cities and mountainous country.
(b) A distinction must be drawn between "government"
broadcasting and "public" broadcasting. The USA has both.
Government broadcasting is illustrated by the Voice of America, Radio Marti
(broadcasting to Cuba), Radio Free Europe, Radio Liberty, and the Armed
Forces Radio Service. (These services are forbidden, by law, to broadcast
within the USA.) The content of their broadcasts represents the position
of the USA government.
"Public" broadcasting, by contrast, may be funded in whole
or in part by the government, but is organized so as to be (for most purposes)
independent of any political or governmental influence on content. Examples
from other countries would include NHK (Japan), BBC (Great Britain), Sverges
Radio (Sweden), ARD and ZDF (Germany). In the USA, public broadcasting
includes the Corporation for Public Broadcasting, Public Broadcasting Service,
and National Public Radio. Unlike government broadcasting, public broadcasting
may end up being very independent indeed from the government and political
party in power. It may even contribute to the defeat of those in power.
To make this point I have sometimes observed that "the BBC is more
independent of the British government than NBC is independent of the USA
government."
(c) Commercial, or advertiser-supported, broadcasting
is the dominant form of organization in the USA. There are commercial
networks (ABC, CBS, NBC and Fox, among others), and local "affiliates"
of these networks. They are a business. Note, however, that the business
they are in is not the business of programming. It is the business of selling
the audience (the product), to the advertiser (the consumer) -- at a cost
per 1000 viewers. This means that the programming is merely designed to
attract the largest possible crowd. Violence is a useful, and economically
successful, way to do that.
(d) Although never an economic success, "subscription
television" is possible and has been tried in the USA. This
involves "scrambling" the television broadcast signal from a
station, and then selling a subscriber a "descrambler" box to
see the programming (often new movies).
Cable television systems offer channels called "pay cable."
These have been economically successful. As the name suggests, they are
program services for which the subscriber must pay an additional monthly
fee (usually about $10 per channel). Examples would be HBO ("Home
Box Office"), "The Disney Channel," or "Showtime."
Subscription television and pay cable are examples of a broadcasting
business that does involve programming. Money is made by selling programming
to the viewer, not by selling the viewer to an advertiser. (Normally there
would be no advertising on a pay service.)
(e) Educational broadcasters. The licenses
for "public" radio or television stations need to be held by
some organization or individual. The licensee may be a state. (WOI-TV,
an ABC affiliate, was, until recently, owned by the State of Iowa's Board
of Regents (the committee regulating the state's higher education).) It
may be a city. (The City of New York owns station WNYC-TV/FM.) It may be
a group of citizens. (WETA-TV in Washington, D.C. gets its call letters
from the "Educational Television Association" of Washington.)
But, most often, it is an educational institution (usually a university).
(WAMU-FM in Washington is owned by American University. WSUI-AM in Iowa
City is owned by what used to be called the State University of Iowa.)
(f) Other organizations. Churches may
own stations. The Mormon Church owns KSL-TV/AM in Salt Lake City, Utah
(among many others). The Chicago Federation of Labor gave its name to WCFL
in Chicago.
(g) "Community" stations. Citizens
may organize, and contribute money, to support stations (in addition to
"public" stations). Foundations may help with financial support.
An example would be the Pacifica station group, including WBAI-FM in New
York City, and KPFK-FM in Los Angeles. These are usually among the freest
of all stations in their willingness to present unpopular points of view.
(One may surmise that this has something to do with the lack of dependence
on corporate funding. For commercial stations such dependence takes the
form of corporate advertising. For public stations it takes the form of
corporate "underwriting" (recently coming to be closer and closer
to the same thing as advertising).)
The point of this extended description of alternatives is simply that,
to the extent one wishes to encourage "autonomy," there may well
be choices preferable to either pure "state control" or pure
"commercial corporate" broadcasting.
Appendix:
"Autonomy" is not "Independence"
Merely because broadcasters are not employees of the government does
not mean that they are in every way independent of the government.
For many reasons, USA commercial broadcasters may provide support for
"the establishment" (the wealthy, or those managing large institutions
of all kinds) in general, and the government in particular.
(a) In the first place, the owners of major media in the USA are at
least millionaires, if not billionaires. They are part of the establishment.
They are no more comfortable seeming to criticize their friends and golfing
buddies than a labor union president would be criticizing unproductive
union rules, or a professor writing about unethical university practices.
They like to be well thought of by government officials -- just as government
officials like to socialize with millionaires and business leaders.
(b) An organization called FAIR publishes a magazine of media criticism
called Extra! It has run a number of articles analyzing the tendency of
news and interview programs to tend to limit the choice of guests to middle-of-the-road
establishment figures. It says the guests tend to range from "center"
to "right," and are rarely from organizations outside the government
or corporate sphere, such as schools, churches, or "public interest"
organizations. These choices may well be unconscious; producers invite
as guests people they know. But the consequence is a media tendency to
support government positions on issues. (It should be noted that another
organization, Accuracy in Media (AIM), takes the contrary view: that the
media have a liberal-left bias.)
(c) Media owners may fear retribution by federal government agencies
with regulatory authority over them, and enormous discretion. The Post
Office determines who gets reductions in postal rates for publications.
The FCC gives (and can take away) broadcasters' licenses. (Its statutory
standard for review is the vague "public interest.") The Federal
Trade Commission (FTC) regulates advertising content in publications and
broadcasts.
(d) When broadcasting stations are owned by large corporations with
other subsidiaries ("conglomerates") they may be tempted to use
their media power to serve other corporate interests. They may be a multi-
billion-dollar provider of goods and services to the Defense Department
(like GE, which owns NBC). They may have interests in tariff and trade
policy (like the motion picture studios during the recent GATT negotiations).
Agencies that enforce the antitrust laws (those prohibiting monopolies
and anti-competitive business practices), such as the Department of Justice
and FTC, have great discretion as to when they will act. A company may
benefit from subsidy programs (such as those for agriculture, shipping,
or mineral rights on public land). Hundreds of other examples could be
provided. When billions of dollars are at stake, and politicians are notoriously
overly concerned about their media "image," the temptation for
media firms to curry favor with the government is large.
(e) Government officials may attack the media in speeches (called "jawboning").
President Nixon used this technique -- often having his Vice President,
Spiro Agnew, make the speeches. But all presidents have done it to some
extent. President Johnson used to call network presidents directly to complain
about their coverage of the Viet Nam war. President Clinton recently lashed
out at the media in an interview for the magazine Rolling Stone. Media
executives do not like to be the center of controversy, especially when
they are being attacked. Members of the House and Senate can hold hearings.
For example, Senator Simon has recently been putting public pressure on
the networks to reduce violence in programming.
Many other examples could be provided. The point is simply that there
are many ways in which a government can exert influence over the media
besides treating it as an agency of that government.
Endnotes
1. Nicholas Johnson served as a Commissioner of the USA Federal Communications
Commission. (The Commission regulates many telecommunications industries,
including radio and television.) He has worked as a print and broadcast
journalist. He currently teaches "Law of Electronic Media" at
the University of Iowa College of Law. He is consulting with officials
from Kazakhstan about an evolving broadcast law there. [His postal address
is: Box 1876, Iowa City, Iowa 52244, USA. Voice phone: USA + 319-337-5555.
Fax: USA + 319-335-9019. Internet: njohnson@inav.net]
2. Although the CRTP-Aspen group emphasizes "television,"
this paper refers to "media." The word "media" is meant
to include newspapers, magazines, radio, television, cable, and other forms
of expression. "Other," today, would include such things as video
tapes, video games, and CD-ROM "multi-media" disks often including
related text, pictures, animation, video, music, speech, and so forth,
such as the Microsoft "Encarta" CD-ROM encyclopedia. Some of
these are sometimes described as "inter-active" media (because
they require, or permit, the user to do something more than merely "watch
television"). "Virtual reality" seems to be next in line
for our attention -- and money. The reason for using the entire category,
rather than "television" alone, is because (a) each is important,
(b) the issues are similar for all, (c) each involves a form of "free
speech," and (d) the corporate structures, regulation, software, hardware
and telecommunications networks are now so interconnected that it is hard
to know, for example, where "computers" stop and "television"
begins.
3. The courts have interpreted "Congress" to mean any and
all governmental units: federal, state, and city.
4. It also provides for freedom of religion, freedom to gather in groups
("assembly"), and freedom to send letters of complaint, or requests,
to government officials ("petition"). The phrase "or of
the press" has provoked a debate, among USA Supreme Court judges and
others, regarding whether the corporate, commercial media are constitutionally
intended to have more First Amendment rights than any ordinary American
citizen. We need not explore that here.
5. There are federal "district courts" for trials, "courts
of appeals" for review, and the "Supreme Court" for final
review.
6. Each state also has its executive (a "Governor"), legislature,
and court system. The states are not totally "autonomous" from
the federal government, but most Americans would think them mostly autonomous
(for example, they have separate taxing systems, roads, schools, police
and military units). They are not administrative units of the federal government.
These fifty-one systems are sometimes characterized as but two: a federal
system and a state system. It is not necessary for our purposes to provide
details about the ways in which these two governmental systems (federal
and state) cooperate -- and conflict -- with each other.
7. State court judges may also be appointed for life, but some must
be elected, or re-elected, from time to time. They may be less independent,
therefore, than federal judges. Most think of themselves as independent
and not subject to the direct control of a governor or state legislature.
However, they are, of course, required to follow the interpretations of
the USA Constitution announced by the federal Supreme Court.
8. An example in the spring of 1994 has been the "Whitewater"
controversy involving the President and Mrs. Clinton. (The details are
not clear as of March 1994, but appear to involve perfectly legal financial
transactions of little value or consequence occurring many years ago.)
Many Americans believe the Whitewater story has received far too much attention
by the media, to the point of seriously interfering with the process of
governing the nation. The author of this paper is among the critics: "Bill
Clinton is not sleeping on the job but are you?" The Cedar Rapids
Gazette, Jan. 30, 1994, p. 6A ("Deliberately crippling a president
makes even less sense than crippling an Olympic skater"). However,
because of the First Amendment, President Clinton is powerless to curtail
this "investigative journalism." And most Americans -- including
probably President Clinton himself -- would agree that he should be powerless
to control it. President Thomas Jefferson, who suffered his own share of
questionable attacks from the press, once wrote, "The basis of our
government being the opinion of the people, the very first object should
be to keep that right; and were it left to me to decide whether we should
have a government without newspapers, or newspapers without a government,
I should not hesitate a moment to prefer the latter." Thomas Jefferson,
Letter to Colonel Edward Carrington, January 16, 1787, in Boyd, Jullian
P., ed., Papers of Thomas Jefferson, v. 11, p. 49 (1955).
9. Earlier this year a poll was taken of American's attitudes about
the First Amendment. Of those polled, 65 percent opposed restrictions on
newspapers and television stations; 29 percent supported restrictions.
But majorities also believed government restrictions were valid under some
circumstances: to guard military secrets (69 percent), to discourage terrorism
(60 percent), to restrict explicit sex (59 percent), and to discourage
"unnecessary violence" (52 percent). David Morris (Associated
Press), reprinted, "Americans support free press -- to a point,"
The Daily Iowan, March 16, 1994, p. A1.
10. The fact that those who assert First Amendment rights may be wrong
in their interpretation of the law is another matter. Many are. The point
is simply that many people know something about it and believe it protects
them when they express unpopular opinions.
11. (a) Even shortly after the First Amendment was enacted, the Congress
passed a "sedition" law prohibiting criticism of government.
(b) As probably all participants know, the USA has occasionally contained
a substantial number of citizens who believed that talking about Marxist,
or other communist, ideas was "un-American" and should be punished
in some way (most recently with a USA Senator, Joseph McCarthy, in the
1950s). (c) In more recent times the USA government prohibited some federally-funded
health professionals to talk about the possibility of abortion with pregnant
women. The point is simply that generally, and at least in these examples,
proponents of free speech usually win out, often very promptly, and the
restrictions are removed. For current attitudes of Americans about the
First Amendment see poll results in endnote , above. As only one illustration
(randomly chosen from potentially hundreds) that censorship is an ongoing
subject of attention and vigorous debate, a couple months ago one day's
New York Times contained three letters in the "letters to the editor"
section on the topic. They involved the play "Peter Pan," the
writings of Annie Dillard and Alice Walker, Harriet Beecher Stowe's book
Uncle Tom's Cabin, Meredith Tax's children's book Families, and the movie
"Schindler's List." "School Censors Violate the Rights of
Children," New York Times, March 18, 1994, p. A10.
12. Of course, there will always be those who, for whatever reason,
do not. In the same way, there are always some students, parents, doctors,
or other professionals, who don't take their responsibilities very seriously
either. Some citizens don't even bother to vote. But a democracy cannot
force people to govern themselves. It can only give them that opportunity.
Although the author is often critical of the failures of the USA political
and mass media systems, he also wishes to acknowledge the extent to which
they are not only working, but vigorously doing so. At almost any hour
of the day or night there are numerous, ongoing opportunities for citizens
to express their views on radio, television and cable "talk shows"
of various kinds -- not to mention the many guest interview programs (onto
which one must be invited, but which together present a range of views).
Some are broadcast nationally and available to all USA citizens, others
are only broadcast locally. In addition to broadcasting outlets there are
also, of course, the numerous newspaper and magazine "op-ed"
and "letters" pages, and increasing numbers of "electronic
bulletin boards" and other computer communications opportunities.
Home computers also make "online" or "desktop publishing"
opportunities available to millions. And much of the dialogue goes on over
family dinner tables, in coffee shops, and around the water coolers at
work. The discussion feeds back upon itself, public opinion is formed,
and then shifts. There is a constant polling of this public opinion by
numerous media, political and commercial firms. Political and public interest
organizations propose actions based on public opinion -- everything from
putting in a new street light locally to banning cigarette smoking in public
buildings, or going to war. Government officials often change policies
based on their perception of public opinion -- without even waiting for
a formal public protest. In short, the self-governing process really does
work in practice in its own imprecise and imperfect way. It is more than
just a theoretical model.
13. Although not the subject of this paper, the provision of free public
education, free public libraries, and reduced postal rates for newspapers,
magazines, books, and library materials was also an early expression of
official commitment to the informational needs of a self-governing society.
More modern forms of this recognition in the USA are the creation of "National
Public Radio" and public television in the 1960s, and the Clinton
Administration's efforts to make government documents available to citizens
electronically, online, by way of Internet connections to government computers.
14. In practice, the values of the First Amendment are often balanced
against other interests of the society (such as protecting children from
obscenity, requiring contents labels on food and pharmaceutical products,
or maintaining secrecy in wartime about, say, the movement of troops).
But at least one Supreme Court judge has pointed out that the literal language
of the First Amendment (unlike, say, the Fourth Amendment, which protects
citizens from "unreasonable searches" of their homes by government
officials), does not merely prohibit unreasonable restraints on free speech.
It provides that "Congress shall make no law" abridging free
speech. Another Supreme Court judge referred to the "preferred position"
of the First Amendment when weighing values. Whatever language or analyses
they use, virtually all judges recognize that there is something very special
and precious about free speech.
15. I have sometimes noted the distinction between "a marketplace
of ideas" and "the ideas of the marketplace." (a) One thing
meant by that refers to the influence of advertisers on the content of
advertiser-supported newspapers and broadcasting. For example, lung cancer
(from smoking cigarettes) is now a greater health risk for American women
than breast cancer. Health, nutrition and exercise are big topics for "women's
magazines." And yet, those women's magazines that accept cigarette
advertising write very little about these 450,000 deaths a year. (b) That
such outlets are owned by large corporations, possibly engaged in other,
controversial, businesses about which their journalists need to report,
may also affect which information and thoughts are permitted to become
"ideas of the marketplace." For example, one of the three or
four major USA television networks, NBC, is owned by one of the country's
largest corporations: General Electric. At the time it purchased NBC some
wondered if GE, which is in the nuclear power station business, might use
NBC News to help promote public acceptance, and public utility purchase
of, nuclear power stations. At about that time NBC broadcast a pro-nuclear
documentary.
16. The first three branches of government would be, as discussed above
(see text and endnote at note call 6), the legislative, executive and judicial.
The federal "independent regulatory commissions" ("independent"
of what, and why, and to what extent we need not pursue here) have also
been referred to as a fourth branch of government. The Federal Communications
Commission would be an example of such an agency. The author is aware that
the Russian expression, "fourth branch of government," had an
entirely different meaning during the Soviet era. In USA political rhetoric
the phrase has no negative, or cynical, overtones.
17. Autonomous, yes, but see "Appendix: 'Autonomy' is not 'Independence,'"
below, for some significant restraints on the exercise of real independence.
18. The use of the word "check," or "checking value,"
helps explain why the media would be described as a "fourth branch
of government." See endnote 16. The three branches of government are
said to be a "check" on each other. For example, the President
appoints officials, but the Senate must approve them. The President requests
money, but the House appropriates it. The Congress passes laws, but the
courts can render them void, as unconstitutional. The ways in which the
media function as an analogous check are explained in the text.
19. A society, of course, has many other potential ways to investigate
such institutions and hold them to account. The legal system is of some
use. There may be regulatory agencies for monopolies. Legislative committees
can hold hearings. Various police agencies, with a variety of techniques,
may play a role. The institution may have internal procedures to watch
for, and try to avoid, criminal violations or other abuses.
20. (a) Many of these opportunities are legally enforceable rights of
reporters. Although outside the scope of this paper, a couple of examples
would include "public trials," "sunshine" or "open
meetings" laws, and the "Freedom of Information Act" (providing
that, with some exceptions, reporters and citizens alike can get access
to most paper in government files). President Clinton's Administration
has recently opened up millions of formerly-classified documents in what
the New York Times has called "the least secretive policy on Government
records since the birth of the modern national security apparatus in 1947."
Tim Weiner, "U.S. Plans Secrecy Overhaul To Open Millions of Records,"
New York Times, March 18, 1994, p. A1. (b) Of course, reporters may have
some assistance. But that only makes their "checking value" function
more obvious and effective. "Whistle-blower" refers to someone
within an institution who refuses to maintain secrecy about an abuse (that
is, they "blow the whistle" to attract attention). Whistle-blowers
sometimes provide information, often in confidence, to reporters. This
might take the form of machine copies of documents mailed to a reporter
in a plain envelope with no return address. (c) This option -- "going
to the media," as it is called -- may be thought of as analogous to
someone turning to the courts, or an elected legislator, for relief.
21. But see endnote 15 for examples of results of "investigative
reporting" not desired by owners or advertisers, and see "Appendix:
'Autonomy' is not 'Independence,'" for illustrations of government
influence on the content of the USA's "autonomous" media.
22. Even the USA Army has used this concept in its efforts to recruit
new soldiers with its motto (in a singing television commercial): "Be
all that you can be, in the Army."
23. The "safety valve" value may be thought of as (a) a cynical,
meaningless grant from those who control the society to those who do not,
in an effort to reduce any effective (that is, violent) efforts at change
by the latter that would reduce the wealth or power of the former. Or it
may be thought of as (b) a very real commitment to democratic rule, including
the possibility of loss of power, based on a belief that it is wrong to
silence any group in the society -- whether or not they would be likely
to turn violent if suppressed. For our purposes we need not take sides
in that debate.
24. Following the arson, looting, and rioting in downtown Los Angeles
in 1965, one of the young rioters was quoted as saying, "What we do
last night, maybe it wasn't right. But ain't nobody come down here and
listen to us before" -- again making the link between speech and violence.
As Dr. King put it, "A riot is the language of the unheard."
Many instances of airline hijacking, or hostage taking, turn out to involve
both a speech-related frustration on the part of those committing the crime,
and a desire (sometimes demand) for access to the media to tell their story.
25. Whether this reason is valid is another matter. Some argue that
by permitting the expression of grievances one only raises the expectations
of those doing the complaining, increases the anger of those already upset,
contributes to the organization of what may turn out to be even larger
groups of individuals willing to engage in violence, and thereby intensifies
the danger of disintegrating the society. Nonetheless, the "safety
valve" effect of the First Amendment is often cited as one of the
values of free speech. It can also be thought of in the context of self-governing;
that is, that government is best which does hear and respond to all its
citizens' grievances, whatever may or may not be the violent consequences.
26. See text and endnotes at note calls 3 and 4.
27. The case is Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241
(1974).
28. Without going into detail, and providing all the citations, some
examples of the exceptions follow. (a) The "fairness doctrine"
(no longer recognized by the FCC) relates to issues, not an individual's
right of reply, and provides that (1) broadcasters must deal with "controversial
issues of public importance," and (2) in doing so, the station cannot
be used as an unrelieved instrument of propaganda; a range of views must
be presented. (b) The "personal attack doctrine" provides that
when a named individual is attacked by the station that individual has
a right to know what was said and to personally come on the station to
answer. (c) The "equal opportunity doctrine" provides that if
a candidate for public office is permitted to use a station during a political
campaign all other candidates for that office must be given an "equal
opportunity" to use the station. (If the station owner lets no one
broadcast no rights are created.) (d) Only candidates for federal office
(e.g., President, Senators, Members of Congress) have a right to buy a
"reasonable" amount of time.
29. The leading case for this proposition is Columbia Broadcasting System,
Inc. v. Democratic National Committee, 412 U.S. 94 (1973).
30. See "What are the values and consequences of the First Amendment?"
beginning on page 3, above.
31. See endnote 12, above.
32. For a fuller discussion see, "What are the values and consequences
of the First Amendment?" beginning on page 3, above.
33. In fact, there are a great many alternatives. Some are set forth
in "Appendix: Alternative Systems of Broadcasting," below. Those
described next in the text assume a system of privately owned, commercial,
advertising-supported stations.
34. See "Who's abridging the speech?" beginning at page 7,
above.
35. The USA Supreme Court has said, "There is no sanctuary in the
First Amendment for unlimited private censorship operating in a medium
not open to all." Red Lion Broadcasting. Co. v. Federal Communications
Comm'n, 395 U.S. 367 (1969). However, that and similar language ("It
is the right of the public to receive suitable access to social, political,
esthetic, moral, and other ideas and experiences which is crucial here")
related to a finding that the "fairness doctrine" and "personal
attack doctrine" were constitutional. When it came to a right of paid
entry to broadcasting the Court found there was a sanctuary in this "medium
not open to all." That case was Columbia Broadcasting System, Inc.
v. Democratic National Committee, 412 U.S. 94 (1973). See generally text
and endnotes at note calls 27, 28, and 29, above.
36. The history of the cable industry's community access channels is
too involved, and unnecessary to this paper, to explore in detail. In brief,
the requirement has sometimes come from Congress, or the FCC or local city
franchises. It provides that a certain number of channels (say one to six,
on what are usually 20-to-60-channel cable systems) must be made available
for local citizens, schools and governments. (They are sometimes called
"PEG" channels, for "public, educational and governmental.")
The channels are available to everyone in the community who subscribes
to the cable system (at a cost of about $10 to $35 a month for all services).
The usual practice is that the cable company has little or no control over
the content of its "PEG" channels, and that virtually anyone
can walk in off the street and put her or his videotape out over the system
on the "public access channel." Although the programming on PEG
channels is normally limited to a single community and cable system, and
seldom has large viewing audiences, it has often played a very significant
role as a showcase for local talent of various kinds, and discussion of
local issues.
37. See page 3, above.
38. See endnote 28, above. In fact, the Aspen Communications Program
Director, Charles Firestone, once recommended an "access is fairness"
proposal to the Federal Communications Commission that would have literally
substituted access for the fairness doctrine. Without describing the details,
the general idea was that broadcasters who were willing to make a certain
proportion of their broadcast day available to uncensored speech, sometimes
called "free speech messages," would no longer need to comply
with the requirements of the FCC's fairness doctrine.
39. I sometimes tell the (apocryphal) story of a young reporter, who
starts out with enthusiasm. She works very hard researching, interviewing,
writing, and editing an "investigative journalism" article exposing
the corruption of one of the major advertisers in the paper. The story
is so good it may win for her a journalism prize. She proudly gives it
to her editor. She never hears about it again, and it never appears in
the paper. The next time she has an idea for an investigative journalism
piece, about an incompetent local official, she decides to check with her
editor first. He discourages her from doing the story, and she drops the
idea. The third time she thinks of a major investigative journalism topic
(different property tax rates paid by local citizens) she not only doesn't
research and write it, she doesn't even bother talking to her editor about
it. The fourth time? The fourth time the idea doesn't even cross her mind.
40. It has been estimated that as many as 60 percent of the stories
appearing in the Wall Street Journal come from publicity releases sent
to the Journal by public relations firms on behalf of corporate clients.
It is charged that some of these stories are not investigated, or even
rewritten, but simply published as received.
41. Although beyond the scope of this paper, the issue of how a nation's
people can be trained and encouraged to participate more actively in a
national dialogue, and process of self-governance, is well worth exploration.
(a) Scarcely more than a generation ago the expression "children should
be seen and not heard" was a common way of discouraging youngsters
from speaking out. Children learn quickly from parents, and teachers, whether
outspokenness is to be rewarded or punished. So adult attitudes toward
children is one place to begin. (b) Opportunity is another. School newspapers,
radio and television stations, training with and opportunity to use video
cameras, community access channels on cable, radio and television call-in
programs, and letters to the editor columns, all contribute to the opportunity
for, and acceptability of, citizen participation by young and old alike.