Commentary

Disney, Media Giants, and Corporate Censorhip

By Marjorie Heins

Here is a First Amendment quiz. Which is the biggest threat to free expression in America today:

(1) The Walt Disney Company's announcement two weeks ago that it will not permit its Miramax subsidiary to distribute Michael Moore's film Fahrenheit 9/11.

(2) Disney's alleged reason for the ban: fear that Florida Governor Jeb Bush will punish Disney if it distributes the film, by undermining lucrative tax deals for Disney theme parks.

(3) Ownership of ever-larger chunks of our culture by media conglomerates such as Disney.

If you guessed #3, you are right.

Michael Moore will find another distributor for Fahrenheit 9/11. In fact, last week Disney announced that it would sell the rights to Miramax founders Bob and Harvey Weinstein, so that they can arrange for another distributor. And Moore's expert orchestration of the news of Disney's decision, as well as his own well-deserved reputation as a trenchant critic of U.S. policy and culture, almost guarantee that a distributor will be found.

Disney's alleged reason for its decision is more troubling than the decision itself. The likelihood that a political official (here, Jeb Bush) would retaliate against a taxpayer (here, Disney) for communicating information and ideas distasteful to the official is, perhaps, just a cynical recognition of political realities. But it would be unconstitutional for Governor Bush to manipulate his state's tax policies in this fashion - and for good reason.

Protecting speech critical of the government is a core function of the First Amendment. If political officials can punish such criticism by withdrawing tax breaks or other benefits, then the result will be to suppress expression that is the basis of democracy. For this reason, courts have consistently ruled that it is unconstitutional for government officials to wield their power to retaliate against unwelcome speech.

By contrast, censorship by private corporations generally doesn't create First Amendment problems. Disney and other mega-corporations have the right to decide which of the projects owned or generated by their many affiliates and subsidies they want to publish, broadcast, or distribute, and which (such as Fahrenheit 9/11) they want to quash. Technically, there is no First Amendment violation when Disney censors Michael Moore, or - to take another of numerous recent examples - when Viacom refuses to air a political advertisement by MoveOn.org during the Superbowl.

Why, then, is the formidable size and economic power of media corporations the gravest threat to free expression today? Because as these companies grow ever bigger, the ability to decide what news, information, and political commentary most Americans will hear becomes concentrated in fewer hands. The formerly independent Miramax is now controlled by Disney. Independent book publishers have disappeared into corporate conglomerates like Bertelsmann and Viacom. Local radio stations (more than 1,200 at last count) have been swallowed by Clear Channel.

Most critically for democracy, the public depends on the media to uncover political malfeasance - including, most recently, the criminal conduct of the American military at Abu Ghraib prison in Baghdad. If this essential function is concentrated in the hands of a few media powerhouses that are too cozy with those in power, we lose access to the information that we need to govern ourselves.

As the Supreme Court explained more than 50 years ago, a democracy cannot function well without "the widest possible dissemination of information from diverse and antagonistic sources."1 Whether the issue is Disney's censorship of Moore in order to curry favor with President Bush's brother or Viacom's suppression of MoveOn.org for similar reasons, these events are only worrisome if Disney and Viacom are powerful enough to control the information and ideas that reach most Americans.

The Federal Communications Commission has a mandate to control media consolidation, but in the past few years, it has woefully failed to do so. Indeed, the FCC leadership has abetted the industry's appetite for conglomeration. (Last year's relaxed media ownership rules are now being challenged in court.2) Meanwhile, the agency wastes its time and the taxpayers' money on political sideshows -- "indecency" rulings against the televised effusions of Bono and the flatulence jokes of Howard Stern.

Fahrenheit 9/11, of course, is a reference to Fahrenheit 451, Ray Bradbury's 1953 novel about censorship, and the 1966 Francois Truffaut film of the same name. The title is a reference to the temperature at which book paper catches fire.

May 21, 2004

1. Associated Press v. United States, 326 U.S. 1, 20 (1945).

2. See Prometheus Radio Project v. FCC, No. 03-3388 and consolidated cases (3d Cir., argued Feb. 11, 2004); and information on the case available from the Media Access Project and Prometheus Radio Project.