Media Democracy and the First Amendment

Media Ownership and Democracy in the Digital Information Age, by Mark Cooper (Center for Internet & Society, Stanford Law School, 2003)

The November 7-9, 2003 media reform conference in Madison, Wisconsin was hailed as a huge success, attracting well over 1,000 people (attendance reports varied, depending on whether only the 1,400 official registrants were included). This popular enthusiasm for media democracy came on the heels of nationwide protests against the Federal Communications Commission's loosening of its already lax media ownership rules.1 What is happening here, and how does it relate to free expression and the First Amendment?

The beginning of an answer can be found in a new book, Media Ownership and Democracy in the Digital Information Age, published by the Center for Internet & Society at Stanford Law School. Its author, Mark Cooper, subtitles the book: "Promoting Diversity with First Amendment Principles and Market Structure Analysis." Appropriately, the book is available for free online,2 and can be distributed noncommercially under the free-expression-friendly "Creative Commons" license – an alternative to traditional copyright controls.3

Cooper starts by asserting that the basic goal of the First Amendment is to promote a wide range of speakers and ideas. From this intellectual horn of plenty come the wealth of information, and the diversity of viewpoints, that are essential for a healthy democracy. He quotes the Supreme Court's declaration in a famous 1945 case: the First Amendment, the Court said, "rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public."4 Accordingly, the Court upheld an injunction obtained by the U.S. government against the Associated Press for anti-competitive practices – specifically, a bylaw allowing AP members to blackball their competitors and thus prevent them from gaining membership in the organization and the benefits that go with it.

Today's ever-more intense media consolidation, Cooper argues, clashes with this First Amendment goal of diversity. As scholars have been documenting for years, corporate media giants have managed, through mergers, acquisitions, and legislative "de-regulation," to grow ever more gigantic.5 The consequences range from the virtual disappearance of independent book publishers to the gobbling up by Clear Channel in the past few years of more than 1,200 local radio stations, all playing (as Phil Donahue put it) the same "canned and bland" music, "a puree prepared at a place far away."6 The need for government action to break up media megaliths and thus promote First Amendment values seems clear.

But, media corporations often argue, such structural regulation threatens their First Amendment rights. In this jurisprudential world view, any government restriction on the ability of individuals and corporations, no matter how wealthy, to spend as much money as they like on publishing, broadcasting, cable TV, and every other form of communication, "abridges the freedom of speech" that is protected by the First Amendment. And they're right that for a long time, it has been assumed that the only function of the First Amendment is to protect individuals and corporations against government action. The notion that private entities, whether large corporations or wealthy individuals, can also inhibit free expression, and that government has a role in preventing this, still sounds radical.

But the idea actually goes back to the same Supreme Court antitrust case that recognized "the widest possible dissemination of information from diverse and antagonistic sources" as essential to the First Amendment. As the Court explained:

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. The First Amendment, far from providing an argument against application of the Sherman Act [the antitrust law], here provides powerful reasons to the contrary. ... Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests.7

If government has a role, then, in promoting the First Amendment – not just a duty not to violate it – what should the ground rules be? Usually, when free expression is mentioned in defense of a government policy – for example, a rule prohibiting one corporation from owning all the TV and radio stations in town – it is phrased in vague terms such as "the public interest." But a Supreme Court decision this year in another field entirely – affirmative action – suggests a more powerful argument. In response to the claims of disappointed white applicants that any consideration of race in academic admissions violates the Equal Protection Clause of the Constitution, the Court explained that achieving diversity of backgrounds and viewpoints in a university environment is a "compelling state interest" with "a constitutional dimension, grounded in the First Amendment."8 Certainly, the same can be said for diversity in political discourse, and in the sources of information and ideas available to Americans through the mass media.

If achieving diversity in the much-vaunted "marketplace of ideas" is a "compelling state interest," then much more aggressive limits on mass media consolidation are called for. Equally important, looking at free expression this way helps to re-orient legal and policy debate so that those advocating regulation are not always on the First Amendment defensive. To take another example, those opposed to campaign finance reform typically hang their hats on the First Amendment right not to have government interfere with their ability to speak through campaign ads as loudly and often as they can afford. In the process, the big spenders dominate debate, drown out other voices, and corrupt democracy.9

The compelling public interest in advancing viewpoint diversity in this situation puts free expression on the side of regulation. Which is not to say that just any campaign finance law will fly: the usual constitutional law "balancing test" still requires that the regulation be no more restrictive of individuals' free speech than necessary.

Whether it's campaign finance or media reform, though, government regulation can be a risky proposition. Some media reform activists go beyond calls for structural regulation and demand restrictions on media content as well. They are understandably concerned about racial stereotypes, homophobia, and deforming messages about gender and sexuality in some media products. But the remedy here is more diverse speech, not censorship. Unlike structural reform and antitrust enforcement, which advance free expression, government control over the content of art, entertainment, news, or information is fundamentally at odds with the First Amendment. As a matter of policy, it is also a very bad idea.

Among other things, government control of content is likely to censor radical, challenging, and dissenting voices, rather than the mainstream media - as the FCC's long and dubious history of banning "indecency" on the airwaves makes clear. The primary targets of indecency regulation over the years have been Pacifica and other alternative radio stations that provide independent, often dissenting viewpoints. A recent example, the 2001 indecency finding against rap artist Sarah Jones, makes the point well. Jones' song, "Your Revolution," is an explicitly feminist critique of misogynist messages in both hip-hop and rock music.10

Drawing the line between First Amendment-friendly economic regulation and censorial content-based regulation isn't always simple. For one thing, the government legitimately regulates the content of advertising to prevent fraud and misrepresentation. Commercial speech – meaning, essentially, advertising or other explicit product promotion – rightly has a lower level of First Amendment protection than political or artistic speech. One of the more troubling recent developments in constitutional law has been the campaign to obliterate this important distinction between commercial and noncommercial speech.

But other issues of "content" regulation remain. Is it constitutional for the government to require TV networks to devote a certain amount of time to "educational" programming? Perhaps, but is it wise as a matter of policy, given that "educational" can be a fuzzy concept and the networks are likely to waste everybody's time by claiming that "The Flintstones" qualifies as educational? Wouldn't censorship-free public funding for nonprofit broadcasting, independent video, youth media, and similar initiatives be a more productive approach?

These hard questions call for deliberation and debate within the media democracy movement and among First Amendment scholars. The important thing is to recognize that government, representing the public, does have a compelling interest in advancing free expression through vigorous antitrust enforcement and tough rules against media conglomeration.

Marjorie Heins
November 14, 2003

NOTES

1. For reports on the conference and on the opposition to the FCC rules, see the Free Press Media Reform Network, http://www.mediareform.net/index.php; Center for Digital Democracy, http://www.democraticmedia.org; Media Channel.org, http://www.mediachannel.org; MoveOn.org, http://www.moveon.org. The FCC's new rules would allow a single company to own newspapers and broadcast outlets in the same city, and to own TV stations reaching 45% of the nation's viewers. Congress responded to the protests by drafting legislation to overturn portions of the rules, and a federal court also enjoined them. "Court Delays FCC Media Ownership Rules," Associated Press, Sept. 3, 2003; "U.S. Congress Likely to Tighten TV Cap," Reuters, Nov. 11, 2003.

2. See http://cyberlaw.stanford.edu/blogs/cooper/archives/mediabooke.pdf.

3. See http://creativecommons.org; FEPP Policy Report, "The Progress of Science and Useful Arts": Why Copyright Today Threatens Intellectual Freedom, §IV, "Solutions: Restoring the Copyright-Free Expression Balance," http://www.fepproject.org/policyreports/copyright2dfile.html#solutions.

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

5. Robert McChesney & John Nichols, "Getting Serious About Media Reform," The Nation, Jan. 7/14, 2002, p. 11; Mark Crispin Miller, "What's Wrong With This Picture?" The Nation, Jan. 7/14, 2002, p. 18; "The Big Ten" (chart documenting ten corporations' domination of book and magazine publishing, television, movies, music, newspapers, theme parts, sports, and major Internet sites), The Nation, Jan. 7/14, 2002, p. 27.

6. Phil Donahue in "Take This Media ... Please," The Nation, Jan. 7/14, 2002, p. 24.

7. Associated Press v. United States, 326 U.S. at 20.

8. Grutter v. Bollinger, 123 S.Ct. 2325, 2329 (2003).

9. See "The Campaign Finance Page," http://www.fepproject.org/commentaries/campaignfinance.html; Brennan Center for Justice, Democracy Program, Campaign Finance Reform, http://www.brennancenter.org/programs/programs_dem_cfr.html.

10. On the history of FCC indecency regulation, see Marjorie Heins, Not in Front of the Children: Indecency, Censorship, and the Innocence of Youth (2001), pp. 89-136. The FCC eventually reversed its indecency finding against Jones, but it took two years and a lawsuit. See "The Strange Case of Sarah Jones."