Baker Article

Conference participants: Attached is draft paper I apologize that Parts II & III mostly only summarize prior writings
s and Part I is quite exploratory - criticisms/questions/comments welcome Ed Baker ebaker@law.upenn.edu PRESS PERFORMANCE, HUMAN RIGHTS, AND PRIVATE POWER AS A THREAT It would be strange indeed if the grave concern for freedom of the press which prompted adoption of the First Amendment should be read as a command that the government was without power to protect that freedom Surely a command that the government itself shall not impede the free flow of ideas does not afford non-governmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom. Freedom of the press from governmental interference does not sanction repression of that freedom by private interests. Justice Hugo Black, Associated Press v United States (1945)1
Introduction. This essay considers how private power, broadly conceived, threatens the proper democratic role of the mass media or, more specifically, the press. Two preliminary conceptual matters need, however, some examination in order to locate this discussion in the context of a conference on private power and human rights. First, ambiguity exists in that conference title.
On one conception, common especially among American constitutional lawyers of which I am one, human rights are specifically rights against governments. On a second, closely related conception, human rights are themselves claims to have private power, specifically power that would exist in the private sphere. In a third popular conception, human rights are rights of individuals against the world that any form of power can threaten. Maybe the further specification of the subject of this conference whether the duty to respect human rights should be extended to private entities implies acceptance of a version of the third. Still, any claim that this third conception is appropriate should be evaluated. Such an evaluation should consider why each of these three conceptions has traction. Their complicated relation to each other may merit some clarification. These issues will be the subject of Part I-A.
326 U.S. 1, 20.
Baker: private power
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With that background, the relation of the press to human rights also needs some clarification. Part I-B argues that human rights are ill-conceived if offered as embodying any particular rights in relation to the press; in particular, it argues that a free press is not well conceived as being a human right. Instead, a better claim can be made that an ideal media order provides soil necessary for human rights flourishing and armor necessary for their protection. Both government power and private power are necessary for, and both constitute threats to, these supportive roles of the press roles being conceptually quite different than rights. Political-legal theory should offer some guide to how to walk the tightrope between government as threat and government as source of protection against private threats. Providing this guidance completes the second clarification in Part I. Next, though much scholarly (and legal) attention, at least in the United States, has been lavished on the subject of government power as a threat, particularly in the context of the First Amendment prohibition on government (actually, Congressional but understood as governmental2) abridgement of press freedom, the issue of private sphere threats to press freedom has received much less explicit attention, at least by legal or political theorists. It is almost as if the matter private threats have been conceptually ruled off the table since press freedom means freedom for the private sphere against the government. Thus, Part II here focuses on the nature or basis of private threats. Finally, Part III offers two policy examples to illustrate appropriate roles of government in providing protection against private threats.
I. Conceptual Clarifications A. Human Rights and Private Power. [move: At the most abstract level, this makes the notion of private threats to human rights appear anomalous. How, it might be asked, can a human right be both a demand for private power and a demand for limit on private power? The question is stated too abstractly. One response is to be more specific about the particular private powers that are to be guaranteed or respected, and to find that the threats to these can come not only from government but also from other private powers that do not merit protection but that exist only at the (limited) sufferance of wise policy. This response attempts to distinguish those
2
Curiously, though the First Amendment provides only Congressional abridgment, standing this text on its head, the central and decisive argument in the landmark Pentagon Papers case, New York Times v. United States, yy U.S. , was that the injunction should not issue against publication because not authorized by Congress with the implication being that if Congressionally authorized it would be valid.
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exercises of private power that constitute the exercise of basic human rights from those exercises that do not but that might be properly restrained in behalf of the first category that do.] Human rights are easily conceived of as imposing particular demands that government, presumably the agent of us all, should not violate and, maybe, making particular claims that government should not deny that is, demands that government use its power in ways that respect certain individual rights. (I use term respect to avoid taking sides here on the disputed issue of whether the best interpretation of the mandate on government is, on the one hand, that it not make restriction of the right its purpose or, on the other, that it not create laws that have a particular objectionable effects or fail to provide some form of support3 with the later failure being most often suggested for the realm of economic and social rights, which are often particularly controversial and are not robustly recognized in US constitutional law.) Although human rights and individual constitutional rights are hardly the same and human rights could be either broader4 or narrower than constitutional rights,5 a constitution is an obvious site to locate domestic legal recognition of human rights. Thus, I will in what follows mostly consider the issue of human rights, first, as a matter of ideal constitutional law and, second, as a basis for proper legislative decision and frequently use U.S. Constitutional law, the only area in which I have significant knowledge, for illustrative and critical purposes. Illustrating this first conception, human right as only rights against government threats, the United States Constitution does not, despite loose lay talk, provide people a right to free speech but rather only a right to have the government not (improperly) abridge free speech. Of course, widely known is that democratic constitutions vary greatly in whether they impose state action limitations on constitutional guarantees, with the United States famously
I have argued that, though each type claim has a place in U.S. constitutional law, the overwhelmingly and properly dominant formulation is outlawing objectionable purposes. See, e.g., Baker, Outcome Equality or Equality of Respect: The Substantive Content of Equal Protection, 131 U.Pa.LRev. 933(1983); __, Injustice and the Normative Nature of Meaning, 60 Maryland L. Rev. 578 (2001). 4 Sometimes the United States Constitution is interpreted to name basic rights but then only positively protect their central attributes and only against government abridgement, leaving further elaboration and protection against other threats to legislative actions, for example, under Section 5 of the Fourteenth Amendment. See, e.g., Katzenbach v Morgan, 384 U.S. 641 (1966). Cf. Lawrence Sager, Justice in Plain Clothes (2004). 5 Not uncommonly, possibly in recognizing cultural pluralism and possibly because of the importance of not using deviations to support sanctions or interventions, many theorists consider human rights as a narrower, more fundamental category than a democratic society is likely to recognize as constitutional rights. See John Rawls, Law of Peoples (199_); Ronald Dworkin, Justice for Hedgehogs (ms., 2009).
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taking that tack.6 Some might try to explain this difference in terms of an American history of adoption of a constitution by a particularly self-reliant settlers of a new world or of a historical moment particularly distrustful of government or, given the Bill of Rights original application only to the federal government, particularly distrustful of the federal government (though similar state action provisions were in contemporaneous state constitutions). Still, on this model, the goal of individual rights might be to protect private power from government abuse of power. Nevertheless, if human rights are especially important matters for the lives or dignity of individuals, why not conceptualize (and legally operationalize) them as rights against the world, not to be thwarted by any exercises of power? Why not equally protect these rights (or some of them) against private exercises of power? The suggestion is that these individual rights should have the same status in relation to private as they do toward government power. At least five different reasons are commonly offered to resist this suggestion of universal applicability and maintain a state action requirement.7 The merits of understanding a right, maybe depending on the particular human right at stake, as one against the world, as an all purpose claim of right by the individual, will turn on these four reasons either being, in the relevant context, unpersuasive or inapplicable. That is, the existence of some real differences, despite some real similarities, between government and various different private powers could suggest a more complex formulation of the scope of human rights, not simply their applicability or inapplicability, to private exercises of power a possibility that should be kept in mind below. First, a duty to respect human rights when engaged in activities can be costly it may be quicker, easier, and cheaper to ignore due process rights, to advance policy or organizational goals without the nicety of respecting peoples right to speak, to use rule-of-thumb stereotypes or avoid struggle against other actors stereotypes. That is, a duty to respect human rights may benefit disfavored individuals but reduce organizational efficiency in advancing otherwise legitimate goals. An institutional entity a governmental agency or a business may be able to operate more efficiently if it fire employees who become unpopular with other employees or
That is a slight overstatement the Thirteenth Amendment of the United States Constitution is interpreted to prohibit creation of slavery or involuntary servitude whether by government or private parties. 7 Despite the terminology, it is a mistake to think the issue in US constitutional law is to identify factually the presence of state action. The question is normatively substantive, not factual. It always concerns the substantive constitutional duties of the state in a particular context. The question can always be raised whether a constitutionally permissible regime has a duty to require to have laws or policies that require particular exercises of power (for example, by individuals who may or may not be in the employ of government or by various artificial institutional creations) to respect some individual right.
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customers/clients due to their speech choices or their sex, race or newly public sexual orientation; it may be equally benefitted by being able to fire at will rather than provide due process hearing rights. Imposing substantive and process requirements on how government, an entity of incredible power and of purported broad responsibilities to all people, interacts with individuals might make sense, despite some marginal loss in efficiency, while leaving a diversity of private actors without these costly burdens can increase overall societal or organizational flexibility. As a possible consequence of these alternative arrangements in relation to human rights, where efficiency is most important in carrying out social objectives, the task could be left to private actors, while government should operate in contexts in which fairness and respect for human rights are normatively crucial. Note, however, this point does not require a blanket endorsement of policy freedom to favor efficiency by allowing particular private activities such as operating a jail or providing schools or adjudications. That is, maybe some activities, for example operating a prison or engaging in policing, are legitimate only if carried out in a manner that respects basic rights. On the other hand, the private/public distinction does not require constraints on policy freedom to impose constitution-like obligations on permitted private activities. That is, maybe there is no perfect match between when the actor is or is not the government and when basic rights should or should not be protected. In the U.S. constitutional case law, some Justices who seem particularly sensitive to protection of human rights have been able to find state action and a consequent obligation to respect constitutional mandates in virtually all exercises of private power brought to their attention. In contrast, other Justices who seem particularly concerned with efficiency, after a governmental unit was created primarily due to valuable private economic activities not being able to operate effectively without effective capacity to exercise certain governmental powers, such as eminent domain or application of rules (or taxes) to would-be free riders, have allowed the local governmental unit, at least in respect to the constitutional one-person/one-vote requirement, to operate as if it were a private corporation, denying the vote to some citizen residents but granting variable numbers of votes based on their property ownership to nonresident and even to artificial legal constructs, for example, corporations.8 Moreover, it is widely
Salyer Land Co v. Tulare Lake Basin Water Storage District, 410 U.S. 719 (1973). See also Ball v. James, 451 U.S. 355 (1981). The dissent, by Justices who commonly would impose constitutional duties on private exercises of
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accepted that the government can, if it chooses, impose requirements to respect individual rights at least on commercial entities. In other words, mix and match in respect to the public/private form and the duties of respecting rights is certainly not only possible but has occurred in U.S. constitutional practice. Still, the point is that the possibility of achieving efficiency gains provides a possible advantage of allowing some power holders to ignore certain individual rights and that the distinction between entities who should and those who should not be allowed to ignore rights might roughly correspond to a difference in private and public holders of power. Second, the legitimacy of any government that asks its subjects to accept the obligations created by its laws arguably depends on how it relates to those subjects. That thought supports both the claim that government must view its subjects as ultimately its master supporting the claim that democracy properly conceived is essential to legitimacy and the claim that the legal order can only reasonably expect any person to accept laws obligatory status if that legal order respects that persons (equal) worth and her status as an autonomous agent. Legal recognition of human rights would be part of this respect, hence would be essential to the legitimacy of public power. Not so for private power. Since an individual does not make the same request of others to accept her requests or judgments, the moral mandate in regards to the way her behavior must be oriented towards others is not the same. Others possession of human rights is not of the same concern to her nor a matter that she has the need to embody in her actions. Third, the legitimacy of government is only one side of the moral coin. The other is the proper scope of the moral responsibilities of individuals. To impose responsiveness to human rights or the basic requirements of constitutional justice only on government could reflect proper allocations of moral responsibilities. John Rawls argues that justice is the first virtue of social institutions while the corresponding obligation of citizens is not to personally embody these principles of justice in their own choices but rather to support creation of and to act in accord with just institutions.9 Various good arguments can be made for this division of labor relating to the demands of justice. A person may reasonably think that, though she has some general responsibility related to no one in her society (or, maybe, in the world) starving, she does not have proper criteria with which to choose whom to help among all the people whose just needs are unmet and that, at some point, she should be left off the hook and be allowed to pursue her
power, argued powerfully that democratic voting standards should apply to a public entity making crucial water policies and exercising powers such as eminent domain. 9 John Rawls, A Theory of Justice 3 (1971).
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own good. Thus, Ronald Dworkin proposes two basic principles of dignity one asserting the (equal) importance of each persons life, once began, going well and the other asserting each persons special responsibility for her own life. The first, he argues, should dominate in the formulation of political or legal principles for structuring society while the later allows for the individual to pursue her own self-authored life with only a more limited duty not to harm others (in particular ways) and only a minimal duty to aide, for instance, a duty that comes into play only when failing to recognize the duty amounts to a denial of the worth of humans and, thus, of her own worth.10 Jerry Cohen has forcefully challenged these claims, arguing that justice will never be achieved, certainly not as fully as it could be, unless people adopt the practice of living in personal accord with principles of justice. He argues such a personal responsibility both better directly achieves the aims of justice and also creates the cultural ethos necessary for principles of justice to have proper sway.11 Putting aside here the critical merits of Cohens argument, it seems unquestionable that something on the order of Rawls or Dworkins view provides the better interpretation of existing liberal democracys basic commitments. We fail morally if we make no effort, presumably a political effort, to see that society be organized or structured justly and to willingly accept our share of collective burdens but we cannot be expected, it seems, to devote ourselves to others as long as there are others whose circumstances are less than justly adequate. Thus, it might appear that morality does and law should impose the duty to assure basic rights only on governments. Nevertheless, even accepting the suggestion that the legal order the framework in which people act and not peoples own choices is the proper subject of justice and that this institutional framework, the states legal order, must respect human rights, this point does not answer the question of whether a permissible or even a necessary way for this legal order to embody or successfully advance the demands of justice and to respect the claims of human rights is to impose requirements of respect for these demands or claims on private exercise of power.12 Even if the individual has special responsibility to pursue her own conception of her ideal selfauthored life, she has the responsibility to do so only in accord with just laws and those laws may
Dworkin, supra note 5. G. A. Cohen, If Youre an Egalitarian, How Come Youre So Rich (2000). 12 This is the same point as was made earlier. The issue purported resolved by the state action inquiry in American constitutional law is not about the factual presence of the state in some action (which is ubiquitous the state always effectively either permits, requires, or prohibits particular choices) but the substantive normative matter of determining what responsibility the state should have in a particular context. See note 7 supra.
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be most just if they impose duties on private power, for example, if they prohibit racial discrimination at least within the economic sphere. Fourth, despite great concern with threats to human rights, the existence of a single government with immense powers and a plethora of private actors, both individual and associational and commercial, limiting private power beyond routine duties to obey the law may seem unnecessary. Private power, even its abuse, is simply so much less a threat. Unlike governments virtually inescapable power, a person can usually choose to avoid, certainly avoid legal control by, private persons or entities that she wants to avoid. A persons liability to coercive government power is involuntary and this justifies protecting her human rights from sacrifice on the altar of government policy. A famous article by Adolf Berle challenged the uniform applicability of this view.13 Berle argued that in circumstances where the corporations power makes it a threat to individuals in ways analogous to government, constitutional duties to respect individual rights should apply to corporations themselves creations of the state, structured entities created to serve collective human purposes. If a corporation has sufficient dominance in an important arena of life if its land ownership encompasses the town, if it is the countys dominant employer, if it is the only realistic source of some crucial good or service (for example, an electrical or water utility), if it has the capacity to control outcomes in an electoral sphere,14 Berle argued that state action, which in US constitutional law is (usually) a necessary element for imposition of constitutional duties or limitations on exercises of power, should be found and a duty to respect rights imposed. Outside constitutional law, this argument might reduce to the view that legislative policy should impose duties on sources of private power that threaten values animating particular constitutional rights. For example, while the Court reads the U.S. Constitution to prohibit only the government from subordinating or denigrating people on the basis of their race, equality in social standing and otherwise can be threatened privately by the commercial realm. Thus, with Court approval, legislative bodies impose similar constitutional-like mandates of nonsubordination or race-based denials of disrespect on most commercial entities but,
A.A. Berle, Constitutional Limitations on Corporate Activity Protection of personal Rights from Invasion through Economic Power, 100 U.Pa.L.Rev. 933 (1952). 14 In Terry v. Adams, 345 U.S. 461 (1953), the private entity able to control election outcomes was a private association, rather than a corporation or state empowered entity, a factor that made rationalization of applying the constitutional requirements of the Fifteenth Amendment particularly difficult but not impossible. See C. Edwin Baker, Campaign Expenditures and Free Speech, 33 Harv.Civ.Rts-Civ.Lib.L.Rev 1 (1998).
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interestingly, not on various personal or private decisions such as whom to invite over to dinner or with whom to share a house. These last three points, that government as agent of the people has responsibilities that are not sensibly or fairly imposed directly on individuals and that government power is unique in its comprehensiveness, combine to raise the fifth and most intriguing rationale for distinguishing government and private power. Individual rights sometimes consist precisely in an assertion that the individual should have choice about how (and whether) to act or otherwise exercise power. The right asserts the decision is hers, not the governments. It affirms private power over collective or governmental power. Arguably, a person should have a right to choose with whom she wants to associate or to reject association,15 for instance, at dinner or in marriage or in sex. Though the death penalty is still controversially allowed in the United States, at least arguably the government violates human rights in most circumstances when it chooses to put a person to death. In contrast, at least arguably a person should have a right to commit suicide and, even more likely, to refuse life sustaining treatments.16 The government violates rights of equality when it engages in racist communications,17 but arguably an individual has a right to communicatively express even her racist values.18 In the United States, the government sponsoring or practicing religion violates anti-establishment mandates,19 but an individual surely has a human (free exercise) right to practice her religion. That is, some human rights may guarantee private power over precisely decisions for which governments are denied authority. Private power here would seem to constitute rather than threaten human rights.
In a sense the individual right is individual authority to reject association. The more frequently invoked right of association is really the more limited right to consensual association only with others who choose likewise. 16 The issue is obviously controversial and I will not try to discuss the issues here, but certainly the argument for the individual right is plausible even if, maybe especially if, the government is barred from, for example, imposing the death penalty. Additional issues may apply to a claimed right to get assistance from a voluntary assistor. Cf. Washington v. Glucksberg, 521 U.S. 702 (1997) (no right to assisted suicide) with Cruzan v. Director, Missouri Dept of Health, 497 U.S. 261 (1990) (suggesting that competent person has right to direct removal of life sustaining medical treatment). 17 Charles R. Lawrence, If He Hollers, Let Him Go: Regulating Racist Speech on Campus, 1990 Duke L.J. 431; C. Edwin Baker, Outcome Equality or Equality of Respect, 131 U.Pa.L.Rev. 933 (1983). 18 C. Edwin Baker, Autonomy and Hate Speech, in I. Hare & J. Weinstein, Extreme Speech and Democracy (2009). 19 I have argued that liberalism goes wrong to think that prohibitions on state religion are an aspect of human rights (or basic political morality). Rather, I argue that such prohibitions can be a wise ethical choice but one that communities can legitimately make differently. Any such state practice of religion, however, would violate basic human rights if it led to any form of official discrimination or denial of opportunities to dissenters those of another or of no religion. Baker, Two Conceptions of Liberalism (ms. 2009).
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In my view, this fourth reason to distinguish government and private power is not only correct but is properly a central tenet of liberalism but it is equally important to see its limited scope. This rationale for distinguishing governmental and private power does not block the investigations of this conference precisely because its scope is limited the realm of essential individual authority that recognition of human rights requires a legitimate coercive government to respect is strictly limited. At most recognition of human rights requires restrictions on the ways or places in which coercive authority can legitimately act to regulate activities within the private sphere, including regulating in order to protect or to enhance private capacities to enjoy human rights. Grant that the legal order necessarily creates an institutional framework the Rawlsian point. The fourth rationale for distinguishing government and private power is that the design of that institutional framework should aim to advance appropriate policies, including expanding the scope and enhancing the value of individual rights (e.g., liberties), only by means that do not themselves violate those rights (e.g., liberties).20 These four points lead to a rather simple point. There are good reasons to impose obligations to respect human rights on the institutions of public power. But private power is not of a single piece. Some pieces or aspects themselves constitute the content of certain human rights. Many pieces, however, are not. When not, sometimes but not always reasons much like those related to public power will justify imposing limits or obligations on those that are not as a means of promoting or protecting those that are, that is, those pieces of private power that constitute human rights. Drawing the line between these aspects of private power sometimes will be controversial as will choosing appropriate limits or obligations to impose on these portions of private power. Both issues will be important in Part III below.
B. Freedom of Press and Human Rights. Here I must (i) first note a fundamentally erroneous application of this last discussion of human rights, (ii) then note a peculiarity of the idea of a free press, and (iii) finally briefly suggest the proper (constitutionally permissible) role of the state in relation to the press.
Obviously, the possibility of realizing this aim depends on the conception of liberty or other rights such as equality that is in play. I have argued that the best conception of these basic rights against government are relatively precise and harmonious. C. Edwin Baker, Harm, Liberty, and Free Speech, 70 S.Calif.L.Rev. 979 (1997); __, In Hedgehog Solidarity, Boston U. L.Rev. (2010).
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(i) Not infrequently, claims are made that human rights include rights of private property. If this claim properly includes a notion of human rights in the exchange use of property, the claim provides a quite generic objection to most governmental regulation of the economic sphere potentially, for example, an objection to laws prohibiting businesses from engaging in unconscionable transactions or in racial discrimination or in the sale or purchase of votes or sex. Elsewhere, I have argued that the idea of property needs to be disaggregated. 21 As is well understood, property consists of a bundle of separable rights. Normatively the central point is that these different rights primarily serve different functions and these different functions have varying normative (and constitutional) valences. More specifically, only some of these functions (e.g., maybe those relating to welfare, personhood, and sometimes use-value of property) and, hence, only particular so-called property rights have any claim to a status of human rights. Others sticks in the bundle, including those related to market transactions, serve socially essential instrumental functions, but these aspects of property are not matters of individual rights and consequently are properly structured by legislative policy choices. In particular, the use of property in market transactions (and propertys exchange-value) has no fundamental status as a human right but inherently involves exercises of power of one person over another that should be subject to state control. This normative disaggregation of property is crucial in responding to the last point of the prior section that human rights are, at least in part, an assertion of a sphere of individual power with which the government should not interfere. The claim is that, even accepting that point, the government is not ousted from interfering with the market and economic uses of property for any of its many legitimate purposes including purposes related to serving human rights. Still, the press is, as Justice Potter Stewart observed, the one business explicitly protected by the United States Constitution.22 The question arises whether regulation of this business can be squared with the demands of the Constitution or of human rights. (ii) The press consists mostly of multi-person, structurally and often hierarchically organized, usually profit-oriented corporate entities. As such, the press, unlike an individual, is ill-conceived as a bearer of human rights. The analysis above about lack of human rights to market-oriented or exchange property might be taken to imply that human rights do not require
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C. Edwin Baker, Property and Its Relation to Constitutionally Protected Liberty, 134 U.Pa.L.Rev. 741 (1986). Potter Stewart, Or of the Press, 26 Hastings L.J. 631 (1975).
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protecting the press or the media from legal regulation. This conclusion is underlined if the legislation aims, like legislation against racial or other discrimination in the economic sphere, to further human rights rights of individuals against abusive exercises of power. In litigation involving the broadcast press, two Justices of the United States Supreme Court even accepted the claim that the Constitution itself imposed duties on commercial broadcasters, finding that the Constitution protected certain speech rights of individuals from being infringed by this portion of the private press and other Justices in dicta suggested that these requirements, though not directly imposed by the Constitution, might be properly imposed as a matter of government policy without abridging press freedom.23 On the other hand, the basic idea of constitutional protection of the press is to limit government power in respect to the press in order that it be free. The two points, that government can regulate commercial entities and that it must respect press create the dilemma. As with constitutional prohibitions on government requiring people to practice religion, constitutions prohibit the government from interfering with precisely what people in the private sphere are protected in doing making speech choices concerning their communications. But merely from the view that regulation of business is permitted in order to advance human rights and other meritorious policies, civil or criminal liability for press invasions of peoples privacy or for defaming their reputations surely should not be troublesome. But these examples show that there is something wrong with the view that the presss commercial status should leave it subject to regulation. At least in the United States, First Amendment principles severely limited both measures.24 More specifically, a firm international consensus exists at least in theory if not in practice that the press should be in some sense free and this freedom most overtly, though maybe not exclusively, means protection from government censorship, that is, power over the presss chosen communications. Thus, again, the potential conflict discussed above between guaranteeing rights that provide for private power and imposing duties on or restraints on private power, arises in the context of the market-oriented press. Both points, the presss normally commercial basis and the importance of keeping the government at bay, become important in the discussion below.
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Columbia Broadcasting System v. Democratic Nat. Committee, 412 U.S. 94 (1973). E.g., New York Times v. Sullivan, 376 U.S. 254 (1964); Florida Star v. B.J.F., 491 U.S. 524 (1989) . See Baker, Autonomy and Informational Privacy or Gossip: The Central Meaning of the First Amendment, 21 Social Phil, & Pub.Pol. 215 (2004).
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Seeing press freedom not as a basic human (individual) right but as a potentially crucial support for human rights can help resolve these tensions. The presss importance as support can hardly be overstated. It was once popular on the left to assert that liberal rights, like the right to vote or freedom of speech and of the press, are nice luxuries for developed countries but that in much of the world much more urgent is access to food a human right to basic sustenance. Into this debate came Amartya Sen. He offered the historical claim that no major famines have occurred in countries that have elections with competitive parties and a free press virtually implying that central to the solution to life-threatening hunger is less the mirage of a right to food than the establishment of a free press.25 A possible story could account for Sens observed correlation. He found that typically countries in which people are starving export food, the problem being that those who are starving did not have the money to pay those owning the food; once the existence and extent of the famine and the existence of food supplies were made known by a free press, a government that the existence of democracy made liable to being voted out of office could save itself only with responses that effectively alleviated the starvation. More prosaic then Sens story, a press as a watchdog of government may be crucial for deterring or exposing and then creating responses to corruption.26 A free press is also probably the most central institutional attribute of a democratic public sphere.27 It plays a crucial role both in creating and, by portraying public views, making salient the public opinion to which most democratic theories assume government should be responsive.28 These instrumental contributions are presumably what lead Thomas Jefferson to say: [where] the press is free, and every man is able to read, all is safe29 or James Madison to argue: a popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy
Amartya Sen, Poverty and Famines 161 (1981); ___, Freedom and Needs, The New Republic, Jan. 10 & 17, 1994, at 31; ___, The Economics of Life and Death, Scientific American, May 1993, at 40. 26 Vincent Blasi, The Checking Function in First Amendment Theory, 1977 American Bar Found.Res.J. 521. 27 Stewart, supra note 22; Jurgen Habermas, The Structural Transformation of the Public Sphere (1991) (originally published in German, 1962). 28 Authority here is to be controlled by public opinion, not public opinion by authority. West Virginia St. Bd. of Educ. v. Barnette, 319 U.S. 626, 641 (1943). 29 Jefferson letter to Col. Charles Yancy in 14 The Writings of Thomas Jefferson 384 (Lipcomb ed., 1904), quoted in Miami Herald v. Tornillo, 418 U.S. 241, 260 (1974) (White, conc.). He also argued: our liberty cannot be guarded but by the freedom of the press, not that be limited without danger of losing it. Thomas Jefferson to John Jay, in Works of Thomas Jefferson 73 (Paul Leicister Ford ed. 1904). [ck cites]
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or both [A] people who mean to be their own governors must arm themselves with the power which knowledge gives.30 An individual may have a human right to present herself and her ideas to the public and maybe to receive suitable access to accumulated wisdom. Still, I assume the first, in whatever degree properly recognized, is better understood as an aspect of freedom of speech than as freedom of the press. Since few speakers, despite their ambition, will or even could have regular or even occasional opportunities to present all they want to a mass audience, speech freedom is generally best conceived as a negative liberty right against certain interferences with individual expressive activities and as an affirmative individual interest that society may chooses to advance. And the second, an individuals purported right to receive suitable access to information and opinion, will be similar a negative right not to be inappropriately restrained from pursuit of available information and an interest in having the government support this pursuit. In both cases, the right may require that the government not violate it in pursuing legitimate aims while the government should and inevitably will balance the interest element against various other goals. In contrast, a single individual can hardly claim a human right to own or direct efforts of various other people who make an institution denominated as a press though maybe she has a right not to be disadvantaged as compared to other people in her efforts in this regard. My claim is that that neither some abstraction, freedom of the press, nor the type of press that ideally law should protect from governmental or private power is usefully seen as a human right. At least, this must be true if human rights are considered individual rights as opposed to rights to societal structures with particular institutional forms. It follows partly because the press mostly consists of institutional entities that cannot be coherently protected from the law but are necessarily constructed using legal forms. It also follows because these entities are not constitutive of or intrinsic to individual dignity the way, at least on one formulation of them, human rights are. Rather these entities at best are instrumentally valuable in the service of human dignity. That is, press freedom and, hence, the relation of the press to both public and private power concern the design of, or security of, a desirable I argue, democratic social order. Admittedly, the value of press freedom may reach beyond service to democracy. An authoritarian but benign regime could want a press that is free enough to expose or deter corruption or to provide information
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Letter from James Madison to W.T. Barry (Aug 4, 1822) in 9 Writings of James Madison 103 (G. Hunt ed. 1910).
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about the societal problems that the regime faces. Moreover, in addition to its democratic or social roles, the media produce communications highly valued as consumer products. Maybe, if human rights include a right to certain elements of the general design of society for example, that it be democratic in some specified sense and if a particular media order or press with particular features is partially constitutive of the specified conception of democracy, then maybe that form of press, subject to threats from either government or private power, might be conceptualized as a matter of human rights. Nevertheless, Part II puts aside that conceptual possibility, which arguably is simply a verbal or definitional issue, and considers instead the issue of how different forms of power can threaten an ideal press order. (iii) If free speech is a human right partly constitutive of human dignity while a free press is instrumentally valued as the soil in which individual freedom flourishes and the armor which protects this freedom, it becomes obviously the legal doctrine in respect to the two should differ even if both the individual and the press should be free of censorship.31 Specifically, because the press is obviously and necessarily structured by law, structuring it in ways that promotes its democratic role, its service to democracy, and human freedom should be not only a permissible but an appropriate aim of law. Nevertheless, partly because the precise conception of the press that should be furthered depends on the precise conception of democracy that people should favor, which is reasonably contestable, and partly because the empirical effects of particular legal rules in actually creating a press that serves these aims are uncertain, constitutional law should give legislators leeway in institutional structural choices as long as their choices appear to be good faith attempts to promote desirable press functioning. Past First Amendment decisions in the U.S. Supreme Court correspond to this view.32 The Court has upheld all structural regulation of print, broadcast, or wire media presented to it that did not include what the Court saw as censorship penalizing the presss particular content choices.33 In other words, this view
This difference between press freedom and individual speech rights and the proper formulation of the former is the theme, both normatively and descriptively, of much of my First Amendment writing about the press. See, e.g., C. Edwin Baker, Media Concentration and Democracy: Why Ownership Matters chap. 5 (Cambridge, 2007); ___, The Independent Significance of the Press Clause Under Existing Law, 35 Hofstra L. Rev. 955 (2007); ___, Turner Broadcasting: Content-Based Regulation of Persons and Presses, 1994 Sup. Ct. Rev. 57. I first explored these matters in ___, Press Rights and Government Power to Structure the Press, 34 U.Miami L. Rev. 819 (1980). 32 See, e.g., FCC v. Natl Citizens Comm. for Broad., 436 U.S. 775 (1978). See also writings in last note above, especially Turner Broadcasting: Content-Based Regulation of Persons and Presses. 33 The one case sometimes listed as an exception, Miami Herald v. Tornillo, 418 U.S. 241, 260 (1974) has since been interpreted by the Supreme Court as involving the state penalizing (censoring) particular speech choices and
31
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of the press not as a human right but as an institutional support of human rights should leave the government free to regulate in ways that thwart or respond to private threats to its performance of these service functions.
II: Threats to the Press Role The key policy questions are: how can the type of press that properly serves people (or their society) be threatened by either government or private power and what are the appropriate responses, especially appropriate legal responses, to these threats? Begin with the idea of free press as a black box, the content to be filled in later, referring to the press that ideally serves a free society. Government threats and failures come in four broad forms: the government can, first, as already described, censor communications; second, it can purposefully undermine the conditions of the presss proper functioning; third, it can neglect securing the conditions of the presss proper functioning; and, fourth, it can be wrong about what will best serve a free press. Constitutional guarantees of a free press are appropriately interpreted to make the first two threats unconstitutional, though the second is made difficult by the need to specify what amounts to proper functioning. The third and fourth governmental failures intersect with the question of private threats. I note the third and fourth here primarily to emphasize that the possibility of private threats to the ideal press creates a need and role for government responses although vigilant private pressures also can result in meaningful corrections of malfunctioning. Private threats to an ideal press are, however, the subject of this essay. I think they take three broad forms. First, the private individuals who (or firms that) control press entities control referring mostly to owners but also to managers and advertisers may obstruct its proper functioning. They may abuse their power. Second, to the extent the press largely takes the form of a private firms operating in a market, its role could be threatened by all the ways that the market can be predictably expected to cause it to fail to serve its appropriate democratic and social roles. Third, a debased or even an admirably engaged citizenry consumers more interested in amusement and escapism or engaged citizens intent on maintaining (usually conventional) values against challenge or alternatives may demand and then receive disfigured and often misguided
the Court rejected the broader reading that invalidated the law because of how it structured authority within the press. See Turner Broadcasting System v. F.C.C., 512 U.S. 622 (1994).
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performances by the media. I suspect the threat of dominance of mere escapist consumers is more either armchair elites imagined fear or a paternalistic view wrongly that usually rightwing liberals attribute to progressive liberals who are actually advocating interventions in response to the first two threats. Admittedly, engaged citizens sometimes boycott advertisers of offending media in a sometimes successful attempt to get the advertisers to pressure the media to change its content, thereby restricting the medias capacity to provide content that others want and citizens need. This phenomenon, about which I have written elsewhere,34 is not, I believe, a major aspect of dysfunctional private power. In any event, the first two private threats will be the focus here.
A. Conscious Abuse of Power. Media moguls surely represent the most popular image of a private threat to a desirable media order. The market threats discussed below reflect normal functioning of a commercial market not conscious abuses of power. Though concentrated power always rouses fears, fears related to the communication order are special. The press in its role in creating public opinion and making public opinion salient constitutes private power in the dimension of public opinion. Part I sought to show that the idea of human rights implies that power is not in itself bad but that particular abuses or distributions of power can be. Demagogic or corrupt control of countless local political communities has been built on private control of the dominant institutions of public opinion or has required their complicity in effective muzzling exposs phenomena that sometimes extend to the national level, as many believe has occurred recently in Italy. Although this Berlusconi effect is less complicated to understand thus taking up less space in this essay it may be equally or more significant than the threats related to market failures. Too much private communicative power in the hands of a single individual or control group creates a threat to democracy and human rights that no society should risk In addition, a maldistribution of communicative power can undermine the democratic quality of public opinion and of political efficacy. Although the precise nature of the ideal of democratic efficacy and its relation to creating public opinion depend on the particular normative theory of democracy accepted, most democratic theories include a basic egalitarian or oneperson/one-vote premise relating to its proper distribution, whether that efficacy relates to
34
C. Edwin Baker, Advertising and a Democratic Press (Princeton, 1994), at __,
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distributing the benefits of government or arriving at conceptions of common good.35 A maldistribution of private communicative power represents a failure to achieve an appropriately democratic public sphere. B. Market failures.36 The economic hope for markets involves contexts where profitoriented behavior leads to use of resources that maximally serve peoples properly measured preferences. Admittedly, one objection to markets is that people should get not what they want but what they need. And under some circumstances, people can be properly found to prefer to want not what they immediately would choose but what they need a so called second order preference that might, for example, be expressed politically. Otherwise, this basically paternalistic objection to markets is contrary to the ideal of self-rule and self-determination, values that arguably (i.e., I find) are implied by respect for human dignity and provide the best basis for supporting (and interpreting) democracy. It is also contrary to any optimistic view of humans as being worthy of each others concern. Unless people fundamentally want what is good, why should a person be concerned to relate to others with anything other than defense of oneself and pursuit of ones selfish aims? In any event, I will put aside this ill-liberal objection to markets. There are still, however, at least five reasons or circumstances to expect that media markets will fail to provide the content that people want even if markets generally perform well in this dimension. First, from the perspective of serving the consumer, the hope that the market leads to the best use of resources occurs when the marginal costs of a use equals both the selling price and the marginal benefits. The normal expectation of market theorists is that this result will be achieved if the product is properly priced its selling price properly reflecting its true cost. Under these circumstances, the incentive to produce properly reflects the products value to those who receive the benefit from, or are otherwise are affected by. the products consumption. Media products, however, or at least some media products are relatively unusual in the extent to
I have described how different normative theories of democracy lead to different portrayals of an ideal media order, specifically noting differences between republican or deliberative democracy theories and liberal pluralist theories and recommending a complex democracy that combines the primary features of liberal and republican theories and adds an emphasis on maintaining discursive media within and for subalterian or otherwise marginalized groups. C. Edwin Baker, Media, Markets, and Democracy, Part II (2002). 36 This section is based on Baker, supra note 35, Part I.
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which their positive value goes to people other than customers of the media firm as well as the extent their costs are borne by others than the producing firm. When a significant portion of the products value goes to people other than customers from whom a firm receives payments when there are significant positive externalities the firm will have inadequate incentives to produce; it will demand too high a price for the product from those who pay since those purchasers must pay for the value both to themselves and to the products other beneficiaries, with the result that the profit-maximizing media firm will produce significantly too little (potentially none) of the product. As one example, consider investigative journalism. Reporting that exposes corruption or even mere inattention to public needs and that then results in corrective responses typically benefits not merely the media firms direct audience but all people in the community, but the non-audience members pay nothing for the benefit (a benefit that they normally want), resulting in the media firm having inadequate incentives to engage in this journalism. Worse, if a media firm, if a newspaper, develops a reputation for exposs that deters corruption or poor performance, the result is the public benefits without the media entity having a story to sell! But this example only tips the surface of potential positive externalities produced by media firms. Negative externalities, of course, describe the converse: too much market-based incentive, too low a price, and too much production because the firm does not pay all the costs. Sometimes law responds to negative externalities by forcing their internalization. It imposes a Pigovian tax on the production or it regulates the cost-creating behavior. Pollution taxes, zoning rules, product liability, and occupational safety rules are examples.37 There are, however, good reasons to avoid most legal attempts to impose cost internalization for media content for example, through defamation law or liability for resulting harmful, possibly self-destructive38 or criminal behavior of audience members. First is the difficulty of balancing positive against negative externalities. Did Tom Paines Common Sense create negative externalities,
37 Contractual relations between the producer and employees or buyers make legally required safety rules or product warranties controversial in some circles but easy-to-find problems with bargaining can provide routine justifications. 38 Actually, an audience member injuring herself does not fit the normal notion of an externality since she choice to receive the product, usually from a media entity. However, since media products are typically experience goods, whose value is not well known by the consumer before consumption, there can be a failure of information in the market which provides a major justification of product liability or warranties. Still, the reasons noted in the text for normally avoiding imposing liability apply in this case. In U.S. media law, this result is often accomplished by applying the Brandenburg standard, Brandenburg v. Ohio, 395 U.S. 444 (1969), where liability cannot be applied unless the speech is likely to cause and the speaker intends to cause the harmful result.
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revolutionary behavior that was criminal under prevailing (British) law and losses to all those for whom its contribution to the American Revolution was harmful, or positive externalities, namely benefits to all those who then and since have benefitted from the success of the consequent revolution? How does one balance the pleasures (consumer surplus) and possibly greater willingness to engage in socially productive dissent versus increased antisocial behavior including deadly violence to which some cultural product consider Oliver Stones Natural Born Killers39 contributes? Second, what are the costs to social and artistic creativity and willingness to engage in political exposures and dissent due to threats of liability. The Supreme Court reasonably speculated that upholding traditional defamation laws could easily bankrupt the New York Times, putting it out of business, and lead generally to socially dysfunctional timorousness in the press if upheld traditional state defamation law.40 Third, the cost causing behavior in each case occurs only because audience members do not take precautions (for example, relating to what they believe in consequence of the media content) such that imposing liability could create a moral hazard. Each point relates to a real danger of political abuses and status quo biases in the judgments necessary for legally imposing purportedly cost internalizing liability. Often the liberal conclusion is that responsibility should be imposed on those harmed to self-protect, for example, with more speech, or on those influenced to act improperly, for example, by making the actual wrong doer not the speaker legally responsible. Though appropriate responses to media products potential for negative externalities are complex and variable, they represent how the press (or the media) constitutes an undue threat to other values. They are not the subject of this essay on private threats to press freedom, not on the threat of press freedom. Worth reflection, however, is the frequency that these negative effects result not from the real communicative desires of communication creators writers or editors or video producers but rather from profit interests of market oriented firms. To the extent this is the case, possibly the goal ought to be structural rules that would either provide for greater control by these communication originators or by non-profit oriented entities and less by entity executives who respond mostly to bottom-line profit goals.41 The concept of press freedom does not clearly indicate who should have freedom under its rubric. Within the typically
39 40
Byers v. Edmondson, 826 So. 2d 551 (LA.App. 2002). New York Times v. Sullivan, 376 U.S. 254 (1964). 41 Stephen I. Kim, Viewer Discretion Advised, A Structural Approach to the Issue of Television Violence, 142 U.Pa.L.Rev. 1383 (1994).
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hierarchical organizational structure of a typical media entity, freedom is distributed unevenly among the people involved and this distribution necessarily depends in part on enabling law. The suggested approach follows a reasonable judgment, arrived at in some democracies committed to press freedom, that more central than freedom for the owner, the suppliers of capital, the freedom should be for the editors and, maybe, journalists. They conclude that the legal order can and should give these creators protection against certain interventions of owners. A second major source of negative externalities may come from partisan or ideologically interested speakers sacrificing truth and other values to their own interests. Here, given the danger of government censorship, maybe better than liability rules or other direct restraints, possibly the goal ought to be structural rules that directed at making the market place of ideas work better, make it more likely to correct or to reduce the power of injurious communications legal devices ranging from ownership rules distributing communicative power more broadly and democratically to rules providing responsive mechanisms such as personal or organizational rights of reply in the context of various criticisms.42 Second, a major failure of the market to produce valued content results from the nature of media products typically to have high first copy costs and the low to zero copy costs, combined with the monopolistic competition43 that exists for media products. Absent perfect ability to costlessly price discriminate, a media firm will need to set a selling price that covers at least average costs, a price that will be above the products marginal cost. The producing firm not only will not fully receive the value that the produce provides some purchasers, this price will also exclude other purchasers who value the product more than its low or zero marginal cost. The result is that some media products that would produce more value for consumers than they cost to produce cannot be profitably produced by a media firm and other media products will be denied to a portion of the audience who value them more than the product (marginally) costs. The market failure consists in inadequate or non-production. The way economically successful products can shift the demand functions for other products means that competition sometimes will exacerbate this market failure. Moreover, the shifts occur in predictable patterns that tend to be especially disadvantageous to minority or nonmainstream consumers.
This is not intended as a clear endorsement. The Court has concluded that rights of reply can amount to a penalty on speech, effectively censoring critical content. See supra, note 33. Moreover, even if this were not true, reply rights could mute press partisanship, a result reflective of some but not other images of a democratic press. Baker, supra note 36. 43 Edward H. Chamberlin, The Theory of Monopolistic Competition (8th ed. 1962).
42
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In a sense, a consumer who most wants media content similar to what many other people want has her purchases partially subsidized by these others, but if she has relatively less common tastes if she is a member of a cultural minority she has to pay more of the full price of the media content. Minority tastes are thereby disfavored. Whether this should be viewed as a desirable feature of media markets that pushes toward greater social cohesion and consensus or as unfair to disadvantaged minority views (as well as detrimental to potentially social valuable diversity) presents a difficult value judgment for which the better answer is likely contextually variable. Still, there is at least some egalitarian or democratic premises that should find aspects of this result disturbing. Third, though the traditional mass media are currently in crisis due to the dwindling advertiser support, as the medias dominant paymaster, advertisers create a divergence between the media content audiences value most and the content they receive.44 If advertisers had no goal other than to maximally reach all audiences with their ads, resulting in no content concerns other than to duplicate the preferences of audiences, the advertising subsidy might merely make each consumer expenditure of money or time more effective and thereby correct some problems associated with non- or under-production associated with monopolistic competition outlined in the last paragraph. Nevertheless, empirically, advertising leads media away from this result, form what audiences want, for at least four reasons: i) Advertisers object, sometimes forcefully enough that it leads them to withdraw ads if the media entity does not capitulate, to content critical of their products (or industry) and support content and media entities favorable in this respect. They likewise object to content critical of their political (or other social) agenda. ii) The concern with contents effect on audiences also sometimes causes advertisers to steer content away from material critical of views common among the advertisers targeted audience. Advertisers reasonably fear that views on the issue will spill over onto their attitude toward the advertised products or, worse, that the audience will affirmatively boycott the product, either to punish the advertiser or to indirectly pressure the media not to present the content. iii) Advertisers avoid supporting content that fails to put audiences into a buying mood a routine
The discussion here of advertising and the examples reported are from Baker, supra note 34, chap. 2. Chapter 1 notes some of the negative consequences of how advertising structures media industries, in particular its major role in eliminating daily newspaper competition and creating one newspaper cities in the United States, as well as providing the economic impetus for the development of objectivity as the prevailing professional norm in journalism and the elimination of newspaper partisanship, which at least some countries (e.g., Sweden) has been viewed as making a crucial contribution to democracy.
44
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example being disfavoring complex serious dramas but an effect more depressingly observed when, due to advertisers belief that war and dead soldiers do not stimulate interests in buying trivial consumer goods, CBS offered to make its coverage of the first Gulf War, at least in portions leading up to the advertising slot, upbeat and inspirational, suggesting the idea: A Happy War as Scripted by Our Sponsor. iv) Finally, advertisers well known aim to reach, because most plausible new customers for their products, particular groups defined by interests or often by demographics, means that content oriented toward the values and interests of these groups will be favored as compared to content desired by demographically wrong groups. In itself, this might seem simply a boon to those whose favored content is subsidized. But greater concerns arise when it is noted that those receiving the subsidy are usually those who already have reasonable incomes, especially benefitting those with higher disposable incomes and unformed product preferences, while it seldom serves the content preferences or media interests of other groups, especially the poor for whom egalitarian concerns suggests are more appropriate beneficiaries of subsidies. When asked why his paper, the Los Angeles Times, did not cover stories about and of interest to the black minority population, Otis Chandler said that it would cost him money they would then buy his newspaper (the ink and paper costing more than the cover price) and he could not sell these readers to advertisers. At a time where political participation correlated highly with newspaper readership, advertisers could be said not merely to not serve but to help disenfranchise a minority population. The problem is exacerbated to the extent that, given the nature of monopolistic competition in media products, the subsidy puts out of business otherwise financially viable media oriented toward demographically unappealing groups. James Curran has given a number of historical examples. Possibly most perversely interesting is an example related to the abolishment of the stamp act the so-called objectionable tax on knowledge which in nineteenth century England imposed a considerable surcharge on each copy of a newspaper.45 Its abolition apparently did not equally reduce expenses for the thriving radical working class press because often they, illegally, did not pay the tax accepting, instead, occasional jail time. Unlike this working class press, the establishment press received considerable advertising but paid the tax the two more or less canceling each other out and, thereby, putting it competitively
45
James Curran and Jean Seaton, Power without Responsibility (5th ed. 1997).
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more on par with the workers papers. The abolition of the tax allowed the establishment press to use its advertising advantage to price itself so as to competitively virtually wipe out the workers papers. Though the press tax was surely objectionable, ironically (but apparently with some awareness by some members of parliament) its abolition apparently had the perverse effect of not so much advancing knowledge but undermining working-class knowledge and promoting the prevalence of establishment views. Fourth, to identify the media that best provide what people want and thus serve a liberal commitment to people making choices for themselves requires a means to compare to measure or otherwise identify peoples preferences. An ideally working market measures or compares the existence and strength of preferences by a simple criterion: willingness and ability to pay. No argument exists, however, that suggests that this criterion accurately (i.e., interpersonally) measures strength of preferences. Utilitarians have long recognized that there is no reason to believe that this measure corresponds to the actual strength of preferences, to the utility to the purchaser of the item purchased; thus, they recognize that reliance on this standard cannot be expected to maximize utility or welfare and there are plenty of reasons, especially normal assumptions about declining marginal utility of most goods, to expect the contrary. Given a general assumption of declining marginal utility of wealth, without other informative information, the most rational wealth assumption is that the closest to a welfare maximizing result would occur if a fixed amount of wealth were distributed equally.46 Does the extra satisfaction John McCains family gets from his eighth house more than it would give a recently evicted countryman? Despite the great pleasure that I receive from the sixth course at a three star Michelin restaurant, I do not assume that the same money spent supplying food to hungry children would not produce a larger increase in welfare. Nevertheless, a capitalist (or market) society accepts the general propriety of this measure for determining most allocations. On the other hand, no society, certainly no democratic society, distributes all goods on the basis on willingness and ability to pay or implies that it is an accurate measure of or always appropriate way to respond to preferences or desires. 47 Possibly most obviously, the official measure of preferences for electoral candidates follows an egalitarian measure one person/one
46
If government efforts at redistribution wealth in a more egalitarian direction increasingly cause a reduction in the wealth total, the prediction still must be that some efforts in this direction will have a net beneficial welfare effect. Baker, Utility and Rights: Two Justifications for State Action Increasing Equality, 84 Yale L. J. 39 (1974). 47 Michael Walzer, Spheres of Justice (1984).
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vote. Societies generally think some goods should be distributed free at least up to some level only a persons desire or willingness to consume being a proper standard for allocation. Basic education is one of the commonest examples. Many societies, not just the ancient Romans based on a bread and circuses motif, conclude that at least some nutrition and access to some aspects of culture should be distributed by preferences measured by other than ability to pay either by queuing or generally free availability up to some level. On the other hand, most societies, certainly modern capitalist societies, accept willingness and ability to pay as the proper way to respond to most consumer preferences for leisure or luxury goods. In evaluating proper responses to preferences for media content, some of which play a central political role, contribute to adult education, and are a part of a societys basic cultural infrastructure, one or another egalitarian measure of preferences of what people want arguably should play some role in allocation and production of some media products. However, since most media products have significant though variable and sometimes primary value as leisure goods, some reliance on market measures is also presumably appropriate. Still, even granted a liberal commitment to policies that empower consumers, there is no reason to assume that this empowerment can best be achieved by unregulated media markets as opposed to a modified market (relying of various targeted subsidies) or by adding additional alternatives, for example, a public broadcast system. People express preferences both with votes and dollars. Responsiveness to consumer preferences in respect to these modifications or alternatives can be measured by both political and market processes and may be best measured by the former. Fifth, the market only purports to provide goods, to measure preferences for goods, sold in a market. Clearly people value they have preferences for both commodified and noncommodified goods.48 The same story told me by my grandmother or lover may have added significance precisely because not being a part of market transaction. Story telling can be a valued part of life. That is, often people value processes independently of the items that they receive at the end. If rules related to specifying ideal conditions of market production and allocation had no effect on the separate realm of non-commodified goods, this observation about the possible value of non-commodified communications would have no relevance for the present discussion of market threats to achieving an ideal media order. But that is not the case. Yochai Benkler has nicely explained how strong copyright rules high barriers to use of previously
48
See generally, Margaret Jane Radin, Contested Commodities (Cambridge, MA: Harvard UP, 1996).
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created content not only favor large conglomerate media firms over smaller or individual producers but more generally favor both categories of commodity producers over noncommodity producers.49 Copyright imposes costs on speakers/producers who want to make use of some communicative content but provides benefits to the producer by providing her something that whose sale she controls but if she is not in the business of selling, it only creates costs. Since these advantages and disadvantages involve the background structure in which communications, including the market for communications operate, the evaluation of whether improving or circumventing market allocations helps people receive the media they want cannot be seen simply by observing markets. Support for public broadcasting, for example, may reflect in part a preference for information produced by processes not serving market incentives. In any event, the evaluation must involve a prior evaluation of the value people place on noncommodified content as compared to commodified content, including all the positive and negative externalities of each, and the consequence of different rules in advantaging (making easier, cheaper) or disadvantaging each form. In sum, these five ways in which mere reliance on markets are each ways in which the market can fail to produce media content or distribution that people want. In these ways, the private sphere, represented here in the form of the market or the power of private money within individual purchases can be a threat to the media that people want and the communication order that protects and nurtures human rights.
III. Two Policy Proposals as Illustrative Responses The prior section identified ways abuse and maldistributions of private power and ways market failures involve a market-regulated private sphere50 threatening a crucial institution of democracy that nourishes and protects human rights. A full public policy discussion would consider numerous legal interventions that could make a more ideal order more likely. Possibilities include particular devices such as support for public broadcasting and protection of editors and journalists independence from the equity owners of media entities. They extend to
Yochai Benkler, Free as the Air for Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 NYU L.Rev. 354 (1999). 50 I say market-regulated rather than unregulated because markets depend on a legal order the existence of particular property, tort, contract, and corporate laws that, in each case, could be different and hence constitute one way that the legal order can regulate, constitutes a particular regulatory order.
49
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support for what I, following James Currans suggestions, consider an ideal of institutional pluralism within the media sphere, which allows the media to better perform different democratic and popular roles and provides safety against the possibility of corruption of any particular institutional form.51 Here, I will merely illustrate the themes of Part II by describing how they relate to two policies that I have recently advocated. A. Ownership Dispersal.52 With voices being translated as separate owners, debates within and before the FCC have recently considered the question the minimum number of separate broadcast voices, or sometimes the suggestion is the relevant category is media voices, that contribute to meaningful diversity in or to competitive gains for a community, with either four or eight being popular suggestions. In the context of ownership of cable systems, which are usually local monopolies, a ludicrous Court of Appeals decision,53 when it invalidated FCC rules that required a minimum of four owners of the countrys roughly 10,000 separate cable systems, opined that it could see no argument for having more than two owners in the country. The general idea is that once ownership reaches this minimum, there are no reasons for regulatory further restrictions on concentration (unless this minimum is set so low that general antitrust principles recommend greater restrictions based on purely economic considerations). This debate has been misguided. Democratic theory suggests, instead, a policy or regulatory goal of maximum dispersal of media ownership. The claim is not that maximal dispersal is the only proper policy aim other values matter, including economic efficiency or media firms having adequate resources to produce quality journalistic or creative content. Under some circumstances, these concerns might justify compromise of the goal of maximum dispersal. But even where consolidation increases profits, it could cause net societal loses. This could be the case. for example, if the profits result from firing journalists or diminishing quality content production that themselves produce social benefits positive externalities not obtained by the firm. There simply is no economic or logical reason to equate increased profits with social gains. Thus, the burden of argument should
James Curran, Rethinking Media and Democracy, in James Curran & Michael Gurevitch, eds., Mass Media and Society, 3rd ed. (2000). 52 This section is based on Baker, Media Concentration and Democracy, supra note 31, chap 1. See also ___, Viewpoint Diversity and Media Ownership, 61 Fed.Comm.L.J. 651 (2009). 53 Time Warner Entertainment Co. v. FCC, 240 F.3d 1126 (D.C.Cir. 2001). Cf. C. Edwin Baker, Media Concentration: Giving Up on Democracy, 54 Florida L.Rev. 839, 850-55 (2002) (critiquing this opinion).
51
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be on the party who seeks to show a real public benefit that would come from consolidation. The default position should be regulations requiring or favoring separate ownership. This claim, however, requires defense. What considerations support maximum dispersal? Three values, I believe, are most at stake democratic distribution, democratic safeguards, and the quality of media. Each value responds to at least one threat described in Part II. First, the democratic distribution value responds to the premise that in a democracy, in which rule should be guided by and based ultimately on public opinion, effective voice in the creation of public opinion should be distributed, like the vote, on an egalitarian basis. This conclusion follows whether or not the democratic process aims to be an inclusive discourse about the public good or seeks to achieve a fair pluralistic division of the benefits of a collective order. Of course, the very idea of a mass media opposes any view that each person could or should have an equally effective or powerful voice.54 A mass media involves some people, and some entities, specializing in developing and providing the public with information, insight, and opinion. An equal voice is nonsensical even for the most adamant participatory democrat given the merits of taking guidance from the wise, the idea of specialization in opinion leadership and information development, and the liberal value of allowing people to choose for themselves where and to whom to devote their attention and energies. Still, a basic egalitarian commitment to sharing of political authority and to non-denial of each persons equal status as a citizen should be understood to require that all people be able to find some media owned or controlled by people with whom they can identify and require that the power of their favored media is not unduly constricted as compared to the power of media controlled by others.55 The human rights principle that people should have a right not to be blocked in their search for information or opinion other than by scarcity of resources to devote to the search means that no restriction (other than its lack of audience appeal) on the size of an individual media entity is proper. But this right is audience based, not owner based. Given that virtually any serious media entity will involve the efforts of more than one person, there is no reason ringing in individual freedom that
Cf. Reynolds v. Sims, 377 U.S. 533, 565, 573 (1964) (saying that the Constitution requires that each citizen have an equally effective voice in the election of members of his state legislature and quoting Jefferson for the view that a government is republican in proportion as every member composing it has his equal voice in the direction of its concerns ). 55 As a matter of technical logic, media owned by people with whom a person does not identify, either because of market incentives or professional service ideals, may effectively serve the persons communication needs and interests. Still, it is unreasonable to expect people to depend on such a structure just as it is unreasonable to allow rule by a foreign imperialistic power even if circumstances lead to its power being exercised in a benign manner.
54
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suggests the propriety of a single individual (or corporation) claiming the resources necessary to own or control more than a single media entity or outlet a single paper, broadcaster, cable system or cable channel. For reasons similar to those supporting the constitutional one person/one vote standard for elections, on almost any reading, democratic values imply as wide as practical a dispersal of power within the public discourse that creates this public opinion. Two further points should be added in elaborating this distributional aim. Given that the egalitarian aim cannot be equal individual ownership, given that mass media properly involve specialization, and given that economic or sociological; path dependent factors might lead most owners to come from a few segments of society, policy ought also to aim explicitly at diversity in the people owning or controlling media entities. In the U.S. context, for example, this aim justifies policies that seek to increase ownership by minorities and women, policies whose success has waned without adequate political will being placed behind them. Also, discussion in the United States is often puzzled over the type(s) of diversity that are of ultimate concern. Suggestions include viewpoint diversity or content diversity and source diversity, with the later understood in terms described above as favoring more and different types of owners. Given a commodity perspective wherein value ultimately lies in what audiences or, more generically, consumers receive, many commentators assume that the answer must be content or viewpoint diversity, with source diversity valued, if at all, to the extent it empirically or predictably instrumentally serves these basic commodity concerns. But this perspective had backwards what is central or essential and what is instrumental. The democratic distributional value is an assertion about a fair process, not about receipt of particular commodity outputs. It asserts value in the fairer, more democratic allocation of communicative power itself source diversity in the standard lingo. It should not matter whether this ownership dispersal does or does not empirically promote any particular type of diversity in content. As a quantitative matter, no one thinks that a meeting of scientists is improved by assuring representation of the flat earth view even though its inclusion increases quantitative viewpoint diversity. John Stuart Mill, rather than valuing quantitative increases in viewpoint diversity, asserted that the well-being of mankind may almost be measured by the number and gravity of the truths which have reached the point of being uncontested.56 Many republican theorists hope for achieving consensus, not diversity of viewpoint, on major matters. The three democratic
56
John Stuart Mill, On Liberty 53(Bobbs-Merrill 1956) (1859).
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goals related to viewpoint diversity should be: avoid suppression of the viewpoint diversity that actually exists in society, structurally reduce any risk that viewpoints that exist will be even subject to suppression by holders of power, and develop quality information relevant to these views. Creation of source diversity turns out as is further explained below to serve each of these concerns. Second, threats posed by private power suggest the importance of structural democratic safeguards that the widest possible dispersal of media ownership furthers. Obviously, ownership dispersal directly reduces the danger of an individual exercising enormous unchecked, undemocratic, potentially demagogic power in whatever local, state, or national community the concentration exists the Berlusconi effect discussed above. Even if owners of concentrated communicative power seldom engage in this form of abuse for example, because normally they are more interested in profit-maximization than ideological domination no democracy should risk the danger. Again, the value is not a commodity to be bought by individual consumers in a market but, like separation of powers in government, a structural safeguard of a proper or safer process of governing. A second and third democratic safeguard of maximal distribution of media ownership is to reduce the likelihood or danger from dysfunctional conflicts of interests and to increase the number of decision makers who have ultimate power to direct the use of resources in serving the press fourth estate watchdog role. Conflicts of interest occur when an owner controls various businesses that can be advantaged by practices that distort of the medias journalistic role. The more concentrated the media industry, the more opportunities there will be for distortions and the more consequential the distortions can be. Though, apparently, the European Community stupidly put a stop to legislation due to its view that the law would restrain free trade, Greece attempted to reduce dysfunctional conflicts of interest by outlawing media ownership by conglomerates where the conglomerates non-media portions did regular business with the government, presumably on the reasonable view that either the governments fear of media exposure would cause it to enter into unjustified contracts or the medias desire for the contracts would cause it to hold back on justified exposs or other criticisms.57 In any event, the more media owners are not conglomerates and the more they are not in other businesses, the presence
57
Stylianos Papathanassopoulos, Television in the 21st Century (Athens, Kastaniotis Editions, 2005) (title is translation from Greek and book in Greek).
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of internal conflicts of interests are reduced. And the more broadly distributed ownership is, the less significant are the consequences of any conflicts that do occur. Similarly, though the ultimate issue may be whether owners devote resources to investigative journalism or other watchdog functions, more owners expand the opportunities to do so and beneficially increase the likely perspectives from which problems are identified. As the FCC, echoing earlier observations of the Supreme Court, observed roughly 35 years ago: A proper objective is the maximum diversity of ownership... We are of the view that 60 different licensees are more desirable than 50, and even that 51 are more desirable than 50.... It might be the 51st licensee that would become the communication channel for a solution to a severe social crisis.58 Third, restrictions on media mergers and ownership dispersal can be expected to at least marginally improve the medias socially and democratically beneficial quality. That conclusion follow from combining several diverse observations. Part II summarized a largely economic argument describing an unregulated markets predictable tendency to radically fail to produce the media that people want, most obviously due to the medias huge capacity to produce negative or positive externalities. Here I also need to note one additional fact about media economics and several structural and sociological points about the orientation toward profit maximization of different sorts of owners. The nature of monopolistic competition in the media sphere where each product is in some sense unique and where the first copy costs are high while subsequent copies are cheap or costless results in some socially dysfunctional constriction in content items produced, as noted in Part II. For the same reasons, however, successful media entities tend to have particularly high potential operating profits. Of course, in todays crisis in the news industry, many daily newspaper and other media firms in the United States face bankruptcy, but to significant extent these involve losses created by debt obligations generated by misconceived mergers or buyouts. In contrast, I emphasize operating profits, which to a significant extent continue even during the current recession, as the relevant factor. And I emphasize the profit potential because the next issue relates to why they should not be (as they often have not been) actually achieved.
Amendment of Sections 73.35, 73.240 and 73.636 of the Commission Rules Relating to Multiple Ownership of Standard FM and TV Broadcast Stations, First Report and Order, 22 F.C.C.2d 306, para. 21, 18 Rad. Reg. 2d (P & F) 1735 (1979) (emphasis added) [hereinafter Multiple Ownership Report and Order]. This standard of maximum dispersal is a far cry from the FCCs recent discussions of whether or not eight independent voices are necessary.
58
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The two points potentially huge positive externalities and potentially high operating profits combine to suggest that a policy goal: to get ownership into those hands most likely to devote a larger portion of the media entities potentially high operating profits to providing better journalistic products rather than trying to maximize actual income from operations. Though the concepts are separate, quality journalism roughly equates with content likely to have high positive and relatively less negative externalities. The policy hope is to have owners for whom quality journalism trumps a bottom line focus. This focus on journalism would lead to expenditures socially justified due to their positive externalities even when they have no bottomline justification. Sociologically, high and mid-level executives of large, especially of publicly traded, media companies predictably measure their success and receive financial and other rewards largely based on the profits they produce. In contrast, smaller, more local, more family-based entities often identify with the quality of their journalistic efforts and service to their home communities. Structurally, mergers exacerbate large corporate medias undesirable focus on profit-maximization. The high bidder in a purchase is the party most willing and able to capitalize potential profits of the purchased entity. But its high bid locks it into needing to maximize profits. In contrast, the original owner not saddled with the high debt created by the purchase can choose to forgo some potential income in favor of providing better quality products employ more journalists, provide more investigative journalism, produce more hard news. Thus, the policy goal ought to be to reduce turn-over of media properties. If mergers occur, policy might aim to develop devices that disfavor purchases by parties most likely to emphasize profit maximization, the normal high bidders. These devices should aim to favor categories of purchasers more likely to have greater commitments to journalism and to communities. Alternatively, or in addition, in respect to any merger that increases concentration, another policy tool might be to impose conditions about devoting revenue to journalistic or other favorable content efforts as well as conditions about maintaining the editorial independence of different media entities owned by the conglomerate. Concentrated media power as a democratic threat suggests a final point about ownership dispersal. The ideal legal treatment of the media, including media ownership, is inevitably contestable. However, if a country allows a few media entities to become too powerful in their capacity to mold public opinion or in their lobbying power, the likelihood diminishes that Baker: private power 32 of 39 11/28/09
subsequent debates and decisions will reflect legislators or executive branch policymakers informed and thoughtful evaluation of the public interest. Rather, the likelihood increases that economic or, as we have seen in Italy, ideological interests of these mammoth media corporations will disproportionately control political debate and legislative outcomes. Dispersal of media ownership is likely to reduce this problem to some extent. This observation provides an additional reason that the default position ought to be policies that favor dispersal, with the argumentative burden placed on those favoring policies that predictably increase concentration. B. Tax Credits for Journalists Salary.59 The economic crisis in the news industry is today so evident, at least in the United States, that it is the frequent subject of newspaper stories and television public affairs discussions. This crisis is one of the two biggest stories about the current communication order, being dwarfed only by the increasing role of the online world. Before focusing on this current crisis, however, I want to object to the too common suggestion that the problem will be solved by the second story online media. Digital communications are both incredibly easy to generate and apparently difficult for authoritarian regimes to control. For both reasons, play a significant role in dissident politics and may serve to weaken governmental power when that power threatens popular human rights. By providing easy networking and organizing capacities as well as access to information of all sorts, digital communications are also having major effects on culture, interpersonal communications, and political practices. The digital realm is having multiple effects on traditional media. Journalists content producers increasingly rely on digital media in developing stories, using them for everything from general research to receipt of volunteer or participant-generated information about current news events. Though these transformative uses may only scratch the surface, probably the two major aspects of the digital realm relevant to the traditional news function involve its effect in drastically reducing the cost of information distribution and its effect on traditional media entities revenue stream. Traditional media were long the major producers gathers, validators, and editors of journalistic information and in this role they served democracy and, more generally, provided
59
The proposal described here was earlier presented in C. Edwin Baker, A Not-So-Radical Idea for Preserving Journalisms Society Building Role, Seattle Times (Jan. 16, 2009); ___, Shoptalk: Where Credit Is Due, Editor & Publisher (March, 2009), and in testimony before Subcom. on Courts and Competition Policy, Committee on the Judiciary, House of Representatives, Congress of the United States (Washington, D.C., April 2009), available at http://judiciary.house.gov/hearings/pdf/Baker090421.pdf
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value to consumers. So the specific question related to the digital realm of greatest relevance to the current news industry crisis is this realms consequences for the journalistic function of traditional media: does the digital realm affect and does it provide an alternative to that traditional performance? Volunteer production that is, unpaid, usually non-professional of commentary and some types of news is becoming more common and the Internet is a low cost distribution mechanism for news of all sorts. Still, I offer the following hypotheses. First, despite increasing use of the Internet to access news, for now and probably an extended period, most of the news and information accessed will be initially produced or, at least, will be initially edited and validated and thus will have passed through production by journalists and editors working for traditional news entities, supplemented to some extent by paid journalists and editors working for newly created Internet enterprises. Especially among the young, people increasingly avoid print papers and even broadcast news and instead get news online but by a large margin, when they do so, they access news sites of traditional newspapers and to some extent broadcasters; and when this is not the case, they access sites or rely on searches that provide stories stripped from or content summarized from traditional media or professionally staffed traditional press services. Second and relatedly, professional paid journalists and editors will for the foreseeable future be needed to produce the positive externalities that news journalism has in the past been capable. Though both research aided by Internet searching and information provided by volunteers, often the news entities own readers and listeners, may reduce the costs and enhance the capacity of traditional news production, many of the most important stories will not be obtained by these means. Even when these means are used, journalists and editors will continue to be vital for checking, editing, and selecting for presentation information that they gain online and then for producing the stories. If these hypotheses prove correct, the financial health of journalistic units, which probably for the foreseeable future largely means the journalistic units of traditional media entities whatever the mix of formats by which its content is delivered or accessed will be vital to producing the positive externalities traditionally produced by the news media. Thus, my claim is that the current crisis in the news industry, if unabated, threatens not only the continued vitality of these traditional producers but also the public welfare itself. A supposed democracy without sound professionally (paid) produced public information even if imaginable because non-professional means would prevent any complete absence of information Baker: private power 34 of 39 11/28/09
will fail to live up to its democratic potential. That is, the current crisis should be of concern to democracy and not merely to romantic traditionalists or hard-luck investors for whom the old media are valuable. Still, any suggestion of what should be done requires a diagnosis of the cause of the crisis. Only such insight will allow a well targeted public response. The crisis is not caused by lack of public interest in news. The highly publicized decline in newspaper print circulation in the United States arises mostly from two factors. Mostly it represents a shift to online readership of newspaper stories with little or no net decline in readership. The last fifteen years have seen mostly a shift in peoples method of access.60 But this change hurts newspaper companies because online readers do not produce near the advertising revenue that print readers produce. (At present, few newspapers receive subscription revenue from online readers. However, since circulation revenue in the past seldom paid even the cost of ink, paper, and delivery, this loss would not be material if not for the fact that online readers are less valuable to advertisers, that is, they provide the paper much less advertising revenue per reader). New ways of effectively charging readers, currently under consideration within the industry, may provide a potential source of revenue; but unless the paper can charge these readers much more than they did for paper circulation, a very unlikely prospect, this revenue will not be close to sufficient to compensate for the decline of advertising support. Second, some decline in newspaper readership should be expected due to the recent massive layoffs of journalists in many papers more than 30% and in some more than 50% of journalists which inevitably result in a degraded newspaper product. Any good editor will report that she can produce a better paper if given more newsroom resources but enterprises budget constraints prevent this. Moreover, many papers have been raising their circulation price at a higher rate than the general inflation rate. For any consumer product, even when demand stays constant, the prediction must be that sales, here circulation, will suffer when quality declines and price increases. In fact, some papers have found that they can maintain or expand circulation if they do not raise prices and provide a better product by hiring rather than firing journalists. The economic problem is that these steps costs more than the maintained or increased circulation produce for the paper. That is, for economic reasons, papers have chosen to reduce circulation.
60
Comparisons have varied somewhat from year to year, for example, a marginal decline this year in the United States may reflect a decline from the high interest in the 2008 presidential election; and comparisons are made more difficult by the unit of measurement, for example, often reports are of unique visitors during a month to newspaper site as opposed, say, to the average number of minutes spent on paper versus online sites. [ck comscore data yy]
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The highly publicized crisis in the news industry takes three forms, each with a separate cause, and with only the last urgently calling for a public policy response. Portrayals focus on bankruptcies, newspaper closures, and massive layoffs. Public policy, however, should only be concerned with the last, lay-offs. Bankruptcies mostly reflect papers inability to generate sufficient operating profits to pay interest on debt, usually debt taken on to finance recent overly optimistic purchases. Lax anti-trust and other regulatory laws that failed to restrict the sale of newspaper entities exacerbated this phenomenon. Still, these papers will continue after bankruptcy reorganization, while losses to unwise purchasers merit no public concern. Next, most significant closures have been of a second paper in two newspaper towns illustrated by the Rocky Mountain News or the Seattle P-I. These closures merely continue a steady hundredyear trend of closures due to towns being unable to support more than one English-language daily paper. Though some countries, I think wisely, conclude that competitive partisan papers make a valuable, maybe crucial, contribution to democracy and though public policy could make the existence of competitive papers more likely, it is unclear whether the necessary policy steps are currently worth their cost;61 I, at least, would rank pursuit of this aim as justified but currently less vital than responding to the final aspect of the current crisis. The massive layoffs of journalists as well as threatened closures of some towns only daily are major threats to democracy. Most directly, these layoffs have occurred due to a deterioration of the advertising revenue long relied upon to support journalism. As advertising revenue per reader declines, so does the value to the paper of the reader and, hence the value to the paper of the journalism that it uses to attract readers to sell to advertisers. The paper consequentially lays off journalists despite knowing that these lay-offs will cause a decline both in circulation and in quality journalism. Recent reductions in ad revenue reflect in part a temporary result that always occurs during recessions and as I write, some advertising is returning to print media. More worrying long term are two effects of the Internet. Advertisers are spending more of their ad budget on online sites, especially enormous expenditures on search engine ads that do not produce
This monopoly daily in each town reflects, I have argued, the increasing dominance of advertising as the economic basis of newspapers that began to be material toward the end of the nineteenth century. I have proposed a combination of tax and subsidies that would reduce this effect as one means to increase partisan competing papers. In some American states, rules requiring government advertising to be placed in competing local papers once supported this form of competition. Policies in some countries, Sweden for example, that directed subsidies to the secondary paper in a community, could also contribute. See generally, Baker, supra note 34..
61
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journalism. Also damaging is the migration of some advertising categories, especially the previously highly profitable classified ads, to online specialty sites. Even if newspapers or other media companies run these sites, the sites independence from journalism content means that though they may provide revenue to the firm they would not provide any market reason to devote resources to journalism. Unless some source most obviously something provided by public policy can create a replacement for these major lost revenue streams, we may lose much of the professional journalism on which any robust democracy depends. The crisis calls for, and the significant positive externalities that journalism can produce justify, some response. Among various possible measures, one is particularly obvious. The real problem, the decimation of employed journalists, represents the inability of media companies to obtain revenue from the journalist that even approaches the real value that the journalists efforts produce for the community. A solution for the paper would be to increase the revenue obtained from or, equivalently, to reduce the cost of the journalist. A meaningful policy response would be for the government to give these media entities a tax credit for, say, half of the journalists salary (maybe up to some maximum, possibly based on the average journalists salary, in order to limit subsidizing arguably overpaid star personalities working in media entities news divisions). By cutting in half the cost of journalists to the newspaper, these tax credits would reverse the incentive to layoff journalists, and in turn would increase the quality of newspaper journalism, causing circulation to rebound. Today in the United States, the roughly 48,000 journalists presently employed by the nations newspapers are paid on average slightly less than $50,000 a year. On this basis, this tax credit would cost about 1 billion dollars. Any chance of adoption of this or a similar proposal depends on strong support from those most directly affected. But newspaper journalists and editors represent an industry group probably as or more instinctively opposed than any other to receipt of what they consider government support. Many journalists perceive themselves as freebooters, outside any structured relation with government.62 This attitude reflects the great value, particularly given the centrality of the press watchdog role, of journalistic independence. Nevertheless, opposition to government support is both nave and historically uninformed. The proposed targeted subsidy would continue the major governmental financial commitment to the news media that began with the countrys founding and has continued ever since. Recognizing the vital role of newspapers in
62
Anthony Lewis, [cite]
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holding the fledgling country together and recognizing that the market provided newspapers with inadequate support, Congress in the first years of the Republic established huge subsidies, most directly through postal subsidies but also through printing contracts and advertising, on which the news industrys success was highly dependent from the end of the eighteenth and throughout the nineteenth century. According to government data cited by the Supreme Court, in the early twentieth century, the annual postal subsidy to newspapers was $70 million63 which in todays dollars, on a per-person basis, would amount to roughly $6 billion. Similarly, during much of the twentieth century, journalism broadly defined was subsidized in the broadcast realm to the extent of the difference of value of commercial broadcast licenses with and without public service obligations to provide public affairs programming.64 These forms of non-viewpoint sensitive support65 which in this respect are on par with a tax credit for journalists salaries create less danger to press independence than do many current forms of subsidy that few journalists view with suspicion such as government press releases, provision of press facilities, press conferences and interviews, all of which reduce the cost of news content to news entities but allow the government to influence issues covered by and even content of news reports. Thus, positive externalities provided by journalism justify a government subsidy that responds to ways the market, an arena of diffuse exercises of private power, threatens quality provision. Tradition shows that such a subsidy follows practice that prevailed in the country from its founding. The merited historical judgment was that these public benefits justify the subsidy support. In the nineteenth and early twentieth century, inadequate distribution caused by high real costs of delivery may have been the weakest point in the system of creating public knowledge. That problem would explain targeting a subsidy at reducing delivery costs for the
Lewis Publishing v. Morgan, 229 U.S. 288, 304 (1912). A popular view is that broadcasters receive their license for free, a huge publicly-granted benefit (or subsidy) and therefore properly owe the public some form of consideration in terms of their performance. This argument is basically wrong. The government practice of allowing trade in broadcast licenses means that most of todays broadcasters effectively paid the full market price for licenses and even original grantees properly count its selling price as an opportunity cost of their economic activity. Still, the way government rules inevitably affect the rights and obligations of a property holder mean that the law creates support for some activities and not others the point made earlier in respect to copyrights. There are two ways in which government license policy should be seen as creating a subsidy, one for broadcasting in general and the other for public affairs programming. To the extent that the broadcast spectrum would be more valuable in uses other than broadcasting, the amount of difference equals a subsidy to broadcasting due to licenses being restricted to that use. And the long imposed public service obligations of broadcasters, essentially obligations to provide journalism or public affairs programming, subsidized the news function to the extent of the difference between the value of licenses structured in this way and their value without such obligations. 65 Non-content is a slight overstatement. For example, the postal subsidy was designed, somewhat differently at different times, in ways that attempted to exclude subsidizing advertising content.
64 63
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press. Today the biggest cause for concern lies in the production of quality journalism content. A tax credit to journalistic entities for a significant portion of the salaries paid journalists and editors would reduce the marginal cost to these firms of these employees, leading to hiring more journalists. It can be expected to lead to a better journalistic product that better serves the public interest. The subsidy not only is traditional within American practice but would be much smaller, in constant dollars on a person basis, than that given newspapers a hundred years ago. Conclusion Even if, as I argued, press freedom should not be seen as a human right, threats to a proper press order is a serious matter for democracy and for human rights. Power which can be based in law or money can threaten as well as be essential to a good society. Private power creates both threats that reflect normal functioning of the market and those that reflect abuses of ownership or managerial control. These threats merit constant policy attention. Historically governments have responded with consideration and often enactment of numerous policy measures aimed at improving the functioning of the media realm. In my view, which is not fully developed here, even though merited, these measures have never been adequate to establish the media realm that democracies need. Admittedly, objectionable interventions have also occurred I would include in this category virtually all government censorship of the press. In general, though, the gravest regulatory errors in the structural realm have taken the form of insufficient interventions or of abandonment of merited interventions. In any event, an engaged public, journalists, and legislators provide the first line and usually sufficient guard against these government threats, though judicial intervention on behalf of press freedom also helps. Because of these forms of vigilance against government threats, today the private sphere and the market probably constitute the greater threat. Economic interests, often relying on ideological prejudices, have regularly tried to mask the problem of private threats, to portray attempts at policy response as more dangerous than the disease, or to use judicial review to block reform. Nevertheless, policy interventions, including those of the sort described in Part III, are needed. Fortunately,, at least up to now, in the United States such structural measures have not been limited by the Supreme Court.66 Unfortunately, legislative will and legislative imagination have seldom sufficed to provide as much as needed.
66
See note 33 supra.
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Conference participants: Attached is draft paper I apologize that Parts II & III mostly only summarize prior writings

326 U.S. 1, 20.

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C. Edwin Baker, Advertising and a Democratic Press (Princeton, 1994), at __,

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John Stuart Mill, On Liberty 53(Bobbs-Merrill 1956) (1859).

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Anthony Lewis, [cite]

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See note 33 supra.

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