Keeping media and government apart

Keeping media and government apart

: What is the proper relationship of government to media?


Media is speech and speech must be protected from government interference. That is why we have the First Amendment. Today, everyone’s speech is media, so everyone and all media must be protected.

Every time government tries to regulate speech in any way, it’s trouble. It’s unconstitutional. It’s wrong.

We, the people regulate media by deciding whether or not to listen to it or pay for it or believe it. Attention and credibility are how the market regulates media in a free society.

But all this is colliding in new and unexpected ways today thanks to the growth of citizens’ media — the explosion of the privileged class of media — and to the advent of a new culture of transparency — the open-source society. Old government controls of speech, always wrong, are wrong in new ways. We are witnessing collisions in a number of recent events, including:

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: The Sinclair broadcasting flap, in which a TV company orders its stations to air an anti-Kerry show in an effort to influence the election.

Some elected officials tried to get the FCC to stop Sinclair, making pompous noise about public airwaves and public interest and all that. FCC Chairman Michael Powell — with whom I’ve disagreed frequently lately — did the right thing and said no. That doesn’t mean I like what Sinclair is doing. But if I don’t like it, I don’t watch it. I don’t want government to stop it.

Ernie Miller says the problem with even considering government control in this case is that we are trying to regulate one form of speech, broadcast:

Call me crazy, but if most other media is free to publish whatever it wants (something we call freedom of the press), shouldn’t our first question be why broadcast gets treated so differently? Why isn’t there freedom of the press for broadcast?

Basically, because broadcast is a government-licensed gatekeeper. Imagine if we had a Federal Newspaper Commission that decided who was allowed to publish newspapers in a particular city. Suddenly, we would have calls for a “fairness doctrine” for newspapers and other government regulation of newspaper content.

Jay Rosen says Sinclair is not a media empire with a political opinion but a political empire with a media outlet. They own media in an effort to influence the country.

These days, anybody can create media to try to gain influence: You can distribute a weblog or a podcast and your individual effort may not be as big as the Sinclair empire but this medium as a whole is now challenging that medium. So if you can create an anti-Kerry or anti-Bush web site, why shouldn’t you be able to create an anti-Kerry or anti-Bush TV show or empire?

Oh, I know, you’ll say it’s because we all own the airwaves. Well, we all own the internet, too. And spectrum is no longer scarce. Only 11 percent of Americans get TV through rabbit ears. Today, there is no distinction between broadcast TV and cable or satellite TV. And very soon there will also be no distinction between all that and internet-delivered TV. It’s all just spectrum. We need to fix how we license broadcast spectrum but still, it’s all just spectrum.

So tear down the FCC first. Then tear down the broadcast towers. And tear down the distinctions, while you’re at it. We don’t need them.

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Now look at this from a very different perspective:

: The Judith Miller flap, in which a New York Times reporter is found in contempt for not revealing sources.

Miller happens to be a really rotten poster girl for the cause of shield laws for journalists and their confidential sources because (a) her reporting is tarnished, (b) so many from both political perspectives can’t stand her, and (c) this case involves a crime regarding the outing of a CIA operative. I anticipated all those objections when I wrote the post below; still, the objections played back even louder in the comments and other blogs.

But let’s not lose sight of a bigger principle here — and, interestingly, how that principle is clashing with a new and spreading value in our society:

It’s about the value of secrecy vs. the value of transparency.

The belief in the value of shield laws covering reporters and their confidential sources is really about the value of uncovering secrets in government. But it’s also about being able to keep one’s identity secret in that process. And it’s about separating government from media — and journalism and speech — so that the press and the people can keep watch on their government. The assumption here is that in some cases, if a source can’t keep his or her identity confidential, he or she will not risk revealing information to reporters — information that the people should know. The irony, then, is that it takes secrets to uncover secrets. Is that a bargain worth making? Journalists believe it is. So do I.

But that clashes with the culture of transparency. Oh, that culture certainly believes that government should be open and transparent; like journalism, it abhors government secrecy. But that culture does not trust those who would not identify themselves and be open, including sources of information about government. I buy that, too. I have said often on this weblog that I put less credence in people who won’t put their names on their comments or weblogs. They don’t have the courage of their convictions, the balls of their blogs.

But I still think it is necessary in a democratic society to keep a watch on government — for how else can we, the people, manage our government? Investigation of government on behalf of the people is still one of journalism’s missions. And shielding confidential sources — used when absolutely necessary (and these days, yes, confidentiality is overused and abused) — is still a necessary tool of that mission.

Does that change in this new world where a confidential source inside government could, rather than going to a reporter, just put up an anonymous web page revealing the secret? (And, by the way, does that mean ISPs now need a shield law?) Perhaps. But there is still a value in society in having journalists whose job it is to watch government. And it does not serve democracy to have government threatening journalists — broadly defined to include you and me — with harassment and jail. There are limits to shield laws and among those limits should be the investigation of crimes and the security of the nation (both of which make the Miller case, again, an imperfect cause celebre). Still, I hold the principle unchanged: watching government is necessary; confidential sources can be a necessary tool in that task; government intimidation of its watchdogs is dangerous.

What does change in this culture of transparency is that confidentiality reduces credibility. We had good reason not to trust Dan Rather’s then-confidential source. We have reason not to trust reporters who rely only on the unnamed. We don’t fully trust those who won’t reveal themselves.

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: And now consider the matter of government regulation of political speech: McCain-Feingold, fairness doctrines, 527 loopholes, contribution limits….

It took me a while, but I have come to realize that this, too, is a matter of free speech. Political speech, of all speech, should not be regulated by politicians.

Political parties and candidates should be regulating their own speech — deciding whose money to take and what messages they endorse — under pressure from suspicious citizens. In fact, in a world without government regulation of political speech, I believe it would become more important for parties and candidates to establish and live by standards themselves. Now, they merely hide behind the technicalities of the latest campaign laws (“I didn’t make that ad; a 527 did”). And I believe the laws skew speech so that, for example, money that might go to a candidate to be spent responsibly now instead goes to a fringe group to be used destructively.

Next, says Matt Stoller, the government will try to regulate political speech on the internet.

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: And, of course, how could I rant at such length without ranting about the FCC and Howard Stern, Janet Jackson’s tit, and Fox’s suggestions of sex.

It is utterly wrong, completely unconstitutional, and fundamentally insulting for the FCC, both parties in Congress, and the White House to think that they should protect us from ourselves and have the ability to fine companies and citizens millions of dollars for uttering even one word. According to the FCC, we are ruined and corrupted by:

1. Fart sounds.

2. Titanium tits.

3. Whipped cream.

4. F words.

Who do they think we all are, their children? And who do they think they are, our parents?

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The principle could not be simpler and the founding fathers could not have said it more directly:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Government must have no role in our speech and by extension our media. It must allow unfettered speech in any medium, including broadcast. It must not use government power and the threat of prison to intimidate and chill speech and investigation of government. It must not use government power and the threat of bankruptcy to control the content of our media. It must not limit political speech. It must let us make free use of our greatest national resource, our spectrum.