Copyright c 1994 by Nicholas Johnson

[Background paper prepared for the Commission on Radio and Television
Policy-Aspen Institute Session, May 4-7, 1994, Aspen Wye Woods
Conference Center, Maryland]

An Autonomous Media
by Nicholas Johnson(1)

Scope:  The purpose of this paper is to address some issues regarding the
"autonomy" of media from government.  It is designed to provide some
shared background, and hopefully stimulate a discussion between those
most familiar with media in the newly independent states of the former
USSR, and those whose experience is primarily limited to the United
States of America.  Although the choices and differences between
"autonomous" and "state controlled" media may at first seem simple, the
more one explores the issues the more complex they become.  Moreover,
for such a comparative discussion to be successful participants will need
to know much more about each other's history, politics, sociology,
language, legal systems and culture than is likely to be the case.  This
paper does not pretend to expertise about broadcasting and broadcast law
in the old USSR, or the Newly Independent States.  It emphasizes
background about the USA for our visiting colleagues.  Those from any
country who find it simplistic should feel free to scan it.  Those who
would like more background will find it in the appendices and endnotes.

The First Amendment:  An American Case Study

Each nation's broadcasting system is a function of its history, economic
and political systems.  There are similarities among the systems that
emphasize state control; similarities among those that utilize public
corporations; and similarities among capitalist, advertiser-supported
broadcasting systems.  But each country's system is also unique in a
variety of ways -- and probably should be.

This paper emphasizes the USA system of broadcasting.  That emphasis
has been chosen not because it is the only system, or the best, but because
it is (1) one of the major systems, (2) is seen as a model, or benchmark,
by many (whether rightly or wrongly!), (3) demonstrates a mix of
government, public, and private systems, (4) well illustrates the
complexity, strengths and weaknesses of one country's approach, and (5)
is best known to the author.

In order to understand the "autonomy" of the USA media,(2) it is useful
to begin with the First Amendment of the USA Constitution, and the
reasons why Americans think it is important.  And in order to understand
its real consequences it is necessary to know at least a little bit about the
American court system.

The relevant language of the First Amendment is very general.  It says,
simply,  "Congress(3) shall make no law abridging the freedom of speech
or of the press."(4)

The real meaning and effect of this language can only be understood once
one has at least a general understanding of the USA systems of
government.

Where the First Amendment fits in the U.S. governmental and legal
system.

The USA has fifty-one legal systems, each with its own executives,
legislatures, and courts.  One is the national, or what we call federal,
system (because it includes a "federation" of states).  This includes the
President, Congress (a "House" and "Senate"), and federal judiciary, or
courts.(5)  The other fifty systems are those of the fifty states that make
up "the United States of America."(6)

All governmental units (from the President to mayors of cities) are subject
to the restraints of the USA Constitution (as interpreted by the judges).

The judges who preside over the federal courts are, in almost every sense,
truly and totally independent of any influence from the President or
Congress.  They are selected by the President, and approved by the
Senate.  But once approved they are judges until they die (or resign), and
cannot be removed or intimidated.  Most presidents, legislators and judges
have taken this "judicial independence" very seriously and honor it in both
letter and spirit.(7)

It is important to understand this genuine independence of the judges in
order to understand the true meaning, and operation, of the First
Amendment to the USA  Constitution.  What would happen if the
constitutional protection from government interference in the operations of
newspapers and broadcasting stations was only enforced by judges who
could be punished, or removed, by the President at any time?  Such a
constitutional "guarantee" would not provide much protection for the
newspaper editor, or broadcaster, who wished to criticize the President.

Where the First Amendment fits in the hearts of the people.

Any law, to be effective, must be understood and accepted in the hearts of
a majority of the people.  The First Amendment is not an exception.  It is
not enough that it is "the law."  Officials and citizens must understand
why it is a good idea to permit the expression of information and ideas
with which they disagree.  The information and opinions may in fact be
ones that they hate, that may make them look very foolish (or corrupt),
and that may make them very angry.(8)

The idea of "free speech and press" is not a new one in the USA.  The
country has lived with it for over 200 years.  It is an idea Americans
grow up with.  They experience it, learn about it in schools, and hear it
debated on radio and television.(9)  Even secondary school and college
students, who publish school newspapers, argue with professors and
college presidents (who may wish to censor something students want in
the paper) that the students "have First Amendment rights."(10)

There are individuals (or groups, or officials) who are angered by
particular ideas and propose that speaking those ideas should be illegal. 
Sometimes they convince a significant number of citizens that "something
should be done" about the expression of ideas that they don't like.(11)

But there are also citizens' organizations -- such as the "American Civil
Liberties Union" and "People for the American Way" -- that stand up for
the First Amendment, and almost always convince a majority of
Americans that "free speech," even awful speech, is better than
censorship.  As they say, "the remedy for bad speech is more speech, not
censorship."  And the independent judges have been very careful to
protect First Amendment rights.

What are the values and consequences of the First Amendment?

So, why are people willing to tolerate the expression of information and
opinion they dislike?  Why does the USA have a First Amendment?  Why
is the country better off with it than without it?  Or, if not better off, in
what ways is life different because of it?  What are the values and
consequences of the First Amendment?

As the reader has probably guessed, a great deal has been written about
these questions over the last 200 years -- by judges, by professors and
journalists, by lawyers and political scientists, and many others. 
Everyone, it seems, has an opinion about the matter.  So it is not possible
to summarize all of that literature here.  But even a brief survey can be
useful.

Arguments affirming the value of the First Amendment fall essentially
into five categories:  (1) its role in meeting the needs of a self-governing
citizenry to be informed, (2) its importance to the search for truth in a
"marketplace of ideas," (3) its relationship to the "checking value" of the
media, as it watches for, and reports, abuses by large institutions, (4) its
bearing on "self-actualization," basic liberty, and individual freedom, and
(5) the "safety valve" it provides, permitting dissidents the opportunity to
express their dissatisfaction verbally, rather than through violence. 
Following is a brief explanation of each.

(1)  Self-governing citizenry.  In theory -- and also in practice --
"democracy" means that each citizen is a "government official," with a
responsibility for first  becoming informed about the issues of the day,
then forming and expressing opinions about what should be done, and
finally trying to persuade others to agree with her or his ideas.  Ultimately
from this process of becoming informed, and trying to persuade, comes a
popular consensus as to what action should result.  During 1993 and early
1994, for example, there has been a very active public debate in the USA
about how we should provide health care to all of our citizens.  (We do
not yet have a consensus on that one!)

Most Americans recognize their citizenship responsibility, think self-
governing is a precious thing -- even something worth fighting to protect
-- and make some effort to participate.(12)

Those who wrote the USA Constitution believed that if the opportunity of
self-governing was to be meaningful, it was absolutely essential that
citizens have the freedom to get access to as much information and
opinion as possible(13) -- and to contribute personally to the public
dialogue.  Any governmental effort to restrict that flow of information and
opinion would be a death blow to the whole idea of self-governance,
something "un-American," undemocratic, and unconstitutional.(14)

(2)  Marketplace of ideas.  What is "truth"?  Clearly, its meaning depends
on the context in which it is found.  A religious truth may come from an
ancient text, or a religious leader.  A scientific truth may come only from
the results of experiments that can be repeated by other scientists who get
the same results.  A political truth may be little more than the opinion of
the majority at the moment.  But however one defines the word, the
search for truth will certainly be aided by the widest possible access to the
full range of available information and opinion.

This is sometimes referred to as having access to a "marketplace of
ideas."  All possible information, ideas, theories and opinions are laid out
on tables in the market.  Those that "sell" come to be viewed as "truth" in
the marketplace.(15)

So this is yet another reason for, or consequence of, free speech. 
Regardless of the form of government, it is believed, a society will gain in
every way -- in prosperity, culture, science, the arts, politics -- to the
extent that its citizens' search for truth is free and open.

(3)  Checking value.  Free speech and press are sometimes called "a
fourth branch of government."(16)  To speak of print and broadcast
journalists in this way simply presumes, without even discussing the
matter, that they are autonomous of government.(17)

This value of the First Amendment does not relate to the content of
speech, as such, but rather to the process and consequences of gathering
and disseminating information.

The need for a "checking value" is based on the assumption that every
institution in society, not just government, is capable of becoming
ingrown, resistant to change, secretive, fundamentally corrupt, and more
interested in perpetuating itself than in doing what it was created to
do.(18)  This can be true whether the institutions are businesses,
universities, churches, hospitals, or military and police units.(19)

Of all the ways to avoid these tendencies and provide a "check" on such
abuses, one of the most effective is believed to be free and independent
journalism.  Reporters can go anywhere, ask anything, demand documents,
take pictures, listen to complainants, and be quite innovative in
uncovering abuses.(20)  This is called "investigative reporting."  Because
the reading, listening and viewing audience likes to learn about such
abuses or scandals, those who own the media are willing to have them
reported and advertisers are willing to advertise in such media.(21)

Thus, another value of the First Amendment is that it helps keeps other
institutions in the society honest and efficient.

(4)  Self-actualization.  Another argument for the First Amendment is also
independent of the content of speech.  It is a value related to concepts like
"liberty," "freedom," "self-esteem," "self-expression," "personal growth
and development," "education" and "culture."  For these I use the single
expression "self-actualization."  By this I mean the process by which an
individual realizes, through his or her effort, as much of their potential as
possible.(22)  Such a process necessarily includes the opportunity to
become informed, educated, cultured -- and to express oneself
intellectually, creatively, and artistically.  For a government, or other
institution, to stifle free thought and expression, or to forbid some subjects
or opinions, obviously impedes individuals' self-actualization.  For the
purposes of this category, the ideas expressed may contribute nothing
whatsoever to the society's self-governing, search for truth, or checking
value.  If they contribute to the growth of the individual in question, this
value of the First Amendment is being served.

(5)  Safety valve.  A safety valve on a boiler can release steam before the
boiler builds up pressure and explodes.  The First Amendment also serves
this purpose for a society.(23)  A famous civil rights leader in America,
Dr. Martin Luther King, once said, "Having been denied access to radio
and television we have had to write our most persuasive essays with the
blunt pen of marching ranks."  Fortunately, he was an exponent of "non-
violent" strategies for change.  But his reference to a "march" as an
"essay" helps make the point.  Other, less skilled essayists, have chosen to
shoot, loot and burn in order to be heard.(24)

So this final value furthered by the First Amendment is also unrelated to
the precise content of the speech.  It is, perhaps, related more to the
preceding value of self-actualization.  Here the value is the belief that, if
people are free to present their grievances through speech and writing, if
they have the opportunity to get the attention of their fellow citizens and
officials, if they have the feeling that they have been "heard," they are
much less likely to use violence as a means of protest and reform.(25)

Free Speech in Practice

Who's abridging the speech?

As discussed above, the First Amendment speaks only of "Congress" not
abridging the freedom of speech or of the press.(26)  So what about
"abridgments" of speech by institutions and individuals other than
governmental units?  With few exceptions, unnecessary to our discussion,
there is no protection whatsoever.

Most newspapers and magazines have something like a "letters to the
editor" column.  Anyone can send a letter for publication, which may be,
in effect, a short opinion article.  What if the newspaper publisher
disagrees with the opinion expressed or fears that it will anger readers (or
advertisers)?  What if he or she is prejudiced against the author for some
reason?  Must the letter be published?

The answer is that the publisher has no obligation to print the letter.  The
First Amendment only applies to units of government.  The publisher is
not a unit of government.  Therefore, the publisher is in no way restrained
by the First Amendment.

Nor do reporters and writers have free speech rights.  They are
employees.  It is the owner of the newspaper, the publisher, who has the
First Amendment's protection.  The publisher, and the editors whom she
or he hires (and can fire), can re-write the reporter's article, "censor" it
entirely, and -- ultimately, if they want to -- fire the reporter.

The only way reporters can acquire full First Amendment rights is to
purchase their own newspapers or broadcast stations.

Even if a newspaper attacks someone it has no obligation to give that
person an opportunity to buy space in the paper to reply.  The Supreme
Court held a state law unconstitutional that was an effort to provide such 
a right.  The Court said such a law would violate the newspaper's First
Amendment rights to censor from its pages anything it chose.(27)

Not even broadcasting is treated differently -- in spite of the scarcity of
broadcast frequencies.  There are some exceptions.(28)  But in general,
even though a broadcaster has commercial time for sale he or she can
refuse to sell to someone if the broadcaster does not like the
message.(29)

The values undergirding the First Amendment, discussed above,(30) are
of course equally applicable regardless of who is doing the abridging of
free speech.  If a corporate owner directly, or in response to advertiser
pressure, keeps particular information or opinion from being printed or
broadcast, the audience is just as ignorant as if the censoring was done by
some unit of government.  And yet the First Amendment provides no
"autonomy" for journalists, or members of the public, from corporate
censorship.

Matters of grace and matters of right.

In understanding free speech in practice, it is important to distinguish two
very different circumstances.  One is free speech as a matter of legal
right, based in the First Amendment of the Constitution and enforceable in
courts of law.  The other is free speech as a matter of grace.  By "grace"
we mean an opportunity to speak publicly that has been granted a speaker
or writer by a broadcaster or publisher because the owner wants to do so.

For example, a city could not refuse to grant an organization the right to
use an auditorium owned by the city, and available for rent to public
groups, because the mayor did not like what the organization's speaker
was going to say.  It could not refuse to grant the organization a permit to
have a demonstration, or parade, because of content.  For it to do so
would be a violation of the First Amendment.  The organization could go
to court and force the city to make the auditorium, or streets, available.

In fact, most publishers and broadcasters, as a matter of grace, permit
quite a variety of viewpoints through the media they own.  They may
deliberately seek out "liberal" and "conservative" spokespersons.  Some
will publicize letters from the audience that are very critical of the
station's programming or newspaper's stories.  They may invite guests
onto their programs, or editorial pages, whose views represent a wide
range of ideologies different from those of the owner.

It is important to understand this point.  It is not the case that owners
always censor their employees' and others' speech to reflect the owner's
views.  They may have any one of a number of other motives in mind. 
(1) More openness makes it easier to hire, and keep, good journalists.  (2)
More diversity and controversy may increase the number of readers, or
television watchers.  Since publishers and station owners are in the
business of selling their audience to advertisers, the larger the audience
the richer the owner becomes.  (3) A third reason may be the owner's
genuine commitment to the values of the First Amendment, even though
not required by law.  Whatever the reasons may be in each case, the fact
is that a tremendous range of information and opinion is available to the
American audience from thousands of radio and television stations,
newspapers and magazines.(31)

The point is simply that the owner always retains the potential power to
keep from the public any information or opinion it chooses to censor. 
Such variety as the owner provides, or permits, comes as "a matter of
grace" not as "a matter of right."

Autonomy and Democracy

A democratic society confronts a genuine dilemma with regard to its mass
media.

The First Amendment is designed to produce the fertile soil in which self-
government can grow, make possible the search for "truth" in a
marketplace of ideas, the pursuit of self-actualization, a check on
institutional abuses, and a safety valve alternative to violent strategies for
change.(32)

If these values are to be realized, units of government cannot be given the
power to determine what is "acceptable" speech.  Speech must be
"autonomous" of such governmental control.

But does this mean that there is no role for democratic participation in the
content of speech?  For many years there has been a debate in the USA
about the impact of "violence" in the media on the real (and increasing)
levels of violence in our communities.  If a majority of the American
people want some control over the television programming that they and
their children watch, should they be permitted to have it?  Because of
genuine commitment to First Amendment principles, even those public
officials advocating such controls have been very hesitant to propose
governmental action.  (They often speak of industry "self-regulation" --
which, historically, has not worked.)

Can we make a meaningful distinction between (1) restraints on speech
that reflect democratically determined standards of propriety and social
values, on the one hand, and, on the other, (2) restraints imposed by a
political party, or government,  that seeks to control the media to cover up
its mistakes, oppress its opposition, and stay in power?  Do we have to
forbid any of the former in order to guarantee there will be none of the
latter?  Do citizens have no right to help shape the standards of these
privately-owned media institutions that, some believe, have more influence
on a culture (especially on its children) than family, church and school
combined?  This is an ongoing debate in the USA, and one that
contributes substantially to the complexities in the choices between "state
controlled" and "autonomous" media.

Why do these problems, this dilemma, arise?  The desire for, and need
for, some measure of governmental "regulation" comes about precisely
because of the insistence of large corporate media firms that they have the
power to censor.  In spite of their near-monopoly power, the courts have
acquiesced in the notion that the constitutional right to speak necessarily
includes the right to keep others from speaking. That being the case, some
form of regulation is demanded by the public.

Is there an alternative to some form of regulation?(33)  Yes.

The concept of "public access."

"Access" to media can be used to describe a variety of opportunities, or
rights.  

It could refer to a right to receive information and ideas.  That might take
the form of importing literature from a country from which one's
government has forbidden importation.  It may be a desire to have a
shortwave radio receiver, or "satellite dish," capable of receiving radio or
television signals from other countries when such receivers are prohibited.

"Access" is also used to describe an individual's right to enter information
into the near-monopoly conduits that constitute our mass media:  a city's
only (or dominant) newspaper, radio or television station.  To distinguish
this meaning from the right to receive, it will be referred to as a "right of
entry."

As discussed above,(34) there is no such legally enforceable "right of
entry" at this time in the USA into near-monopoly newspapers and
broadcasting facilities.(35)  The only exception would be the so-called
"community access" channels on local cable television systems.(36)

Thus, the point for now is simply that such an approach would be an
alternative to government regulation of near-monopolies.  If it is true that
"the answer to speech is more speech"(37) then a "right of entry" can
substitute for virtually all alternative regulation.  Citizens need not rely on
a "fairness doctrine."(38)  They, personally, could get entry into the
main conduits of media distribution to say whatever they wanted, however
they wanted.  They would have a personal remedy.

Such a system would be, in many ways, the purest form of "autonomy." 
But it would require a radical modification of USA media industry
practice -- not to mention Supreme Court constitutional law decisions!

Even if such forms of direct access were available, would journalists,
politicians and the general public make use of it?

Self-censorship.

"Censorship" is normally thought of as something imposed from the
outside, usually from some branch of government.  But one of the most
invidious forms of censorship is self-imposed.  It is also probably the
most common.

Journalists may engage in self-censorship, avoiding the story they know
will displease their publisher, editor, colleagues -- or other powerful
individuals who may be able to do them harm.(39)  Self-censorship may
come from lack of courage, a desire to avoid controversy, or perhaps even
an unwillingness to risk getting fired.  It may come from the social
pressure of neighbors, or co-workers.  It is re-enforced by laziness:  it
takes a lot more time and trouble to investigate a story than to re-write a
news release.(40)  It may be very difficult to get the editorial approval
to take on such an assignment -- or the budget and other resources
necessary to carry it out successfully.

Whatever the reasons, the impact on audience knowledge (and ignorance)
is fully as great as if a government censor were sitting in the newsroom.

And similar, self-imposed pressures apply to everyone, journalist or not. 
Those who are not experienced, or lack self confidence, in speaking out in
public may remain quiet and shy.  Few will want to risk the anger of
powerful individuals in the community.  Many individuals want to avoid
association with controversy rather than seeking it out.

So even though "access" is theoretically available to all, it may not be
exercised in fact.(41)


Conclusion

The purpose of this paper is to provide a shared base of information and
insight (however flawed!) into some of the issues surrounding "autonomy
of the media."  It attempts to show both the virtues and values of a free
and independent media, and the difficulties in creating such a condition in
any country -- including the USA.


Appendix:  Alternative Systems of Broadcasting


This paper is premised on the assumption that the only choices for
national media (television) systems are "state controlled" and
"advertiser-supported, for profit, 'autonomous' (from state control) media
corporations."  That is, of course a false assumption.  There are many
other alternatives.

(a)  In the first place, although broadcasting often is centrally controlled it
need not be.  Radio began in the USA as local stations.  Networks only
came later.  In fact, it is only local stations that are licensed; networks as
such are not.  The elected officials who created the first laws (Radio Act
of 1927) were very concerned about central control over such a powerful
medium.  Much of the law, and FCC regulation, is designed to encourage
the distribution of this power throughout the country.  (Local
owner-operators are preferred as licensees; there are limits on transmitting
power, the number of stations one licensee can operate, the terms of
network contracts with local stations; and there is a responsibility to serve
the needs of the local community.)  By contrast, the Japanese public
broadcasting system, NHK, primarily produces its programs centrally and
"local stations" do little more than transmit them to television receivers
throughout the cities and mountainous country.

(b)  A distinction must be drawn between "government" broadcasting and
"public" broadcasting.  The USA has both.  Government broadcasting is
illustrated by the Voice of America, Radio Marti (broadcasting to Cuba),
Radio Free Europe, Radio Liberty, and the Armed Forces Radio Service. 
(These services are forbidden, by law, to broadcast within the USA.)  The
content of their broadcasts represents the position of the USA government.

"Public" broadcasting, by contrast, may be funded in whole or in part by
the government, but is organized so as to be (for most purposes)
independent of any political or governmental influence on content. 
Examples from other countries would include NHK (Japan), BBC (Great
Britain), Sverges Radio (Sweden), ARD and ZDF (Germany).  In the
USA, public broadcasting includes the Corporation for Public
Broadcasting, Public Broadcasting Service, and National Public Radio. 
Unlike government broadcasting, public broadcasting may end up being
very independent indeed from the government and political party in
power.  It may even contribute to the defeat of those in power.  To make
this point I have sometimes observed that "the BBC is more independent
of the British government than NBC is independent of the USA
government."

(c)  Commercial, or advertiser-supported, broadcasting is the dominant
form of organization in the USA.  There are commercial networks (ABC,
CBS, NBC and Fox, among others), and local "affiliates" of these
networks.  They are a business.  Note, however, that the business they are
in is not the business of programming.  It is the business of selling the
audience (the product), to the advertiser (the consumer) -- at a cost per
1000 viewers.  This means that the programming is merely designed to
attract the largest possible crowd.  Violence is a useful, and economically
successful, way to do that.

(d)  Although never an economic success, "subscription television" is
possible and has been tried in the USA.  This involves "scrambling" the
television broadcast signal from a station, and then selling a subscriber a
"descrambler" box to see the programming (often new movies).

Cable television systems offer channels called "pay cable."  These have
been economically successful.  As the name suggests, they are program
services for which the subscriber must pay an additional monthly fee
(usually about $10 per channel).  Examples would be HBO ("Home Box
Office"), "The Disney Channel," or "Showtime."

Subscription television and pay cable are examples of a broadcasting
business that does involve programming.  Money is made by selling
programming to the viewer, not by selling the viewer to an advertiser. 
(Normally there would be no advertising on a pay service.)

(e)  Educational broadcasters.  The licenses for "public" radio or
television stations need to be held by some organization or individual. 
The licensee may be a state.  (WOI-TV, an ABC affiliate, was, until
recently, owned by the State of Iowa's Board of Regents (the committee
regulating the state's higher education).)  It may be a city.  (The City of
New York owns station WNYC-TV/FM.)  It may be a group of citizens. 
(WETA-TV in Washington, D.C. gets its call letters from the "Educational
Television Association" of Washington.)  But, most often, it is an
educational institution (usually a university).  (WAMU-FM in Washington
is owned by American University.  WSUI-AM in Iowa City is owned by
what used to be called the State University of Iowa.)

(f)  Other organizations.  Churches may own stations.  The Mormon
Church owns KSL-TV/AM in Salt Lake City, Utah (among many others). 
The Chicago Federation of Labor gave its name to WCFL in Chicago.

(g)  "Community" stations.  Citizens may organize, and contribute money,
to support stations (in addition to "public" stations).  Foundations may
help with financial support.  An example would be the Pacifica station
group, including WBAI-FM in New York City, and KPFK-FM in Los
Angeles.  These are usually among the freest of all stations in their
willingness to present unpopular points of view.  (One may surmise that
this has something to do with the lack of dependence on corporate
funding.  For commercial stations such dependence takes the form of
corporate advertising.  For public stations it takes the form of corporate
"underwriting" (recently coming to be closer and closer to the same thing
as advertising).)

The point of this extended description of alternatives is simply that, to the
extent one wishes to encourage "autonomy," there may well be choices
preferable to either pure "state control" or pure "commercial corporate"
broadcasting.


Appendix:  "Autonomy" is not "Independence"


Merely because broadcasters are not employees of the government does
not mean that they are in every way independent of the government.

For many reasons, USA commercial broadcasters may provide support for
"the establishment" (the wealthy, or those managing large institutions of
all kinds) in general, and the government in particular.

(a)  In the first place, the owners of major media in the USA are at least
millionaires, if not billionaires.  They are part of the establishment.  They
are no more comfortable seeming to criticize their friends and golfing
buddies than a labor union president would be criticizing unproductive
union rules, or a professor writing about unethical university practices. 
They like to be well thought of by government officials -- just as
government officials like to socialize with millionaires and business
leaders.

(b)  An organization called FAIR publishes a magazine of media criticism
called Extra!  It has run a number of articles analyzing the tendency of
news and interview programs to tend to limit the choice of guests to
middle-of-the-road establishment figures.  It says the guests tend to range
from "center" to "right," and are rarely from organizations outside the
government or corporate sphere, such as schools, churches, or "public
interest" organizations.  These choices may well be unconscious;
producers invite as guests people they know.  But the consequence is a
media tendency to support government positions on issues.  (It should be
noted that another organization, Accuracy in Media (AIM), takes the
contrary view:  that the media have a liberal-left bias.)

(c)  Media owners may fear retribution by federal government agencies
with regulatory authority over them, and enormous discretion.  The Post
Office determines who gets reductions in postal rates for publications. 
The FCC gives (and can take away) broadcasters' licenses.  (Its statutory
standard for review is the vague "public interest.")  The Federal Trade
Commission (FTC) regulates advertising content in publications and
broadcasts.

(d)  When broadcasting stations are owned by large corporations with
other subsidiaries ("conglomerates") they may be tempted to use their
media power to serve other corporate interests.  They may be a multi-
billion-dollar provider of goods and services to the Defense Department
(like GE, which owns NBC).  They may have interests in tariff and trade
policy (like the motion picture studios during the recent GATT
negotiations).  Agencies that enforce the antitrust laws (those prohibiting
monopolies and anti-competitive business practices), such as the
Department of Justice and FTC, have great discretion as to when they will
act.  A company may benefit from subsidy programs (such as those for
agriculture, shipping, or mineral rights on public land).  Hundreds of other
examples could be provided.  When billions of dollars are at stake, and
politicians are notoriously overly concerned about their media "image," 
the temptation for media firms to curry favor with the government is
large.

(e)  Government officials may attack the media in speeches (called
"jawboning").  President Nixon used this technique -- often having his
Vice President, Spiro Agnew, make the speeches.  But all presidents have
done it to some extent.  President Johnson used to call network presidents
directly to complain about their coverage of the Viet Nam war.  President
Clinton recently lashed out at the media in an interview for the magazine
Rolling Stone.  Media executives do not like to be the center of
controversy, especially when they are being attacked.  Members of the
House and Senate can hold hearings.  For example, Senator Simon has
recently been putting public pressure on the networks to reduce violence
in programming.

Many other examples could be provided.  The point is simply that there
are many ways in which a government can exert influence over the media
besides treating it as an agency of that government.


ENDNOTES


1.  Nicholas Johnson served as a Commissioner of the USA Federal
Communications Commission.  (The Commission regulates many
telecommunications industries, including radio and television.)  He has
worked as a print and broadcast journalist.  He currently teaches "Law of
Electronic Media" at the University of Iowa College of Law.  He is
consulting with officials from Kazakhstan about an evolving broadcast law
there.  [His postal address is:  Box 1876, Iowa City, Iowa 52244, USA. 
Voice phone:  USA + 319-337-5555. Fax:  USA + 319-335-9019. 
Internet:  1035393@mcimail.com]    

2.  Although the CRTP-Aspen group emphasizes "television," this paper
refers to "media."  The word "media" is meant to include newspapers,
magazines, radio, television, cable, and other forms of expression. 
"Other," today, would include such things as video tapes, video games,
and CD-ROM "multi-media" disks ÄÄ often including related text,
pictures, animation, video, music, speech, and so forth, such as the
Microsoft "Encarta" CD-ROM encyclopedia.  Some of these are
sometimes described as "inter-active" media (because they require, or
permit, the user to do something more than merely "watch television"). 
"Virtual reality" seems to be next in line for our attention -- and money. 
The reason for using the entire category, rather than "television" alone, is
because (a) each is important, (b) the issues are similar for all, (c) each
involves a form of "free speech," and (d) the corporate structures,
regulation, software, hardware and telecommunications networks are now
so interconnected that it is hard to know, for example, where "computers"
stop and "television" begins.

3.  The courts have interpreted "Congress" to mean any and all
governmental units:  federal, state, and city.

4.  It also provides for freedom of religion, freedom to gather in groups
("assembly"), and freedom to send letters of complaint, or requests, to
government officials ("petition").  The phrase "or of the press" has
provoked a debate, among USA Supreme Court judges and others,
regarding whether the corporate, commercial media are constitutionally
intended to have more First Amendment rights than any ordinary
American citizen.  We need not explore that here.

5.  There are federal "district courts" for trials, "courts of appeals" for
review, and the "Supreme Court" for final review.

6.  Each state also has its executive (a "Governor"), legislature, and court
system.  The states are not totally "autonomous" from the federal
government, but most Americans would think them mostly autonomous
(for example, they have separate taxing systems, roads, schools, police
and military units).  They are not administrative units of the federal
government.  These fifty-one systems are sometimes characterized as but
two:  a federal system and a state system.  It is not necessary for our
purposes to provide details about the ways in which these two
governmental systems (federal and state) cooperate -- and conflict -- with
each other.

7.  State court judges may also be appointed for life, but some must be
elected, or re-elected, from time to time.  They may be less independent,
therefore, than federal judges.  Most think of themselves as independent
and not subject to the direct control of a governor or state legislature. 
However, they are, of course, required to follow the interpretations of the
USA Constitution announced by the federal Supreme Court.

8.  An example in the spring of 1994 has been the "Whitewater"
controversy involving the President and Mrs. Clinton.  (The details are not
clear as of March 1994, but appear to involve perfectly legal financial
transactions of little value or consequence occurring many years ago.) 
Many Americans believe the Whitewater story has received far too much
attention by the media, to the point of seriously interfering with the
process of governing the nation.  The author of this paper is among the
critics:  "Bill Clinton is not sleeping on the job ÄÄ but are you?" The
Cedar Rapids Gazette, Jan. 30, 1994, p. 6A ("Deliberately crippling a
president makes even less sense than crippling an Olympic skater"). 
However, because of the First Amendment, President Clinton is powerless
to curtail this "investigative journalism."  And most Americans --
including probably President Clinton himself -- would agree that he
should be powerless to control it.  President Thomas Jefferson, who
suffered his own share of questionable attacks from the press, once wrote,
"The basis of our government being the opinion of the people, the very
first object should be to keep that right; and were it left to me to decide
whether we should have a government without newspapers, or newspapers
without a government, I should not hesitate a moment to prefer the latter." 
Thomas Jefferson, Letter to Colonel Edward Carrington, January 16, 1787,
in Boyd, Jullian P., ed., Papers of Thomas Jefferson, v. 11, p. 49 (1955).

9.  Earlier this year a poll was taken of American's attitudes about the
First Amendment.  Of those polled, 65 percent opposed restrictions on
newspapers and television stations; 29 percent supported restrictions.  But
majorities also believed government restrictions were valid under some
circumstances:  to guard military secrets (69 percent), to discourage
terrorism (60 percent), to restrict explicit sex (59 percent), and to
discourage "unnecessary violence" (52 percent).  David Morris
(Associated Press), reprinted, "Americans support free press -- to a point,"
The Daily Iowan, March 16, 1994, p. A1.

10.  The fact that those who assert First Amendment rights may be wrong
in their interpretation of the law is another matter.  Many are. The point is
simply that many people know something about it and believe it protects
them when they express unpopular opinions.

11.  (a) Even shortly after the First Amendment was enacted, the
Congress passed a "sedition" law prohibiting criticism of government. (b)
As probably all participants know, the USA has occasionally contained a
substantial number of citizens who believed that talking about Marxist, or
other communist, ideas was "un-American" and should be punished in
some way (most recently with a USA Senator, Joseph McCarthy, in the
1950s).  (c) In more recent times the USA  government prohibited some
federally-funded health professionals to talk about the possibility of
abortion with pregnant women.  The point is simply that generally, and at
least in these examples, proponents of free speech usually win out, often
very promptly, and the restrictions are removed.  For current attitudes of
Americans about the First Amendment see poll results in endnote , above. 
As only one illustration (randomly chosen from potentially hundreds) that
censorship is an ongoing subject of attention and vigorous debate, a
couple months ago one day's New York Times contained three letters in
the "letters to the editor" section on the topic.  They involved the play
"Peter Pan," the writings of Annie Dillard and Alice Walker, Harriet
Beecher Stowe's book Uncle Tom's Cabin, Meredith Tax's children's book
Families, and the movie "Schindler's List." "School Censors Violate the
Rights of Children," New York Times, March 18, 1994, p. A10.

12.  Of course, there will always be those who, for whatever reason, do
not.  In the same way, there are always some students, parents, doctors, or
other professionals, who don't take their responsibilities very seriously
either.  Some citizens don't even bother to vote.  But a democracy cannot
force people to govern themselves.  It can only give them that
opportunity.  Although the author is often critical of the failures of the
USA political and mass media systems, he also wishes to acknowledge the
extent to which they are not only working, but vigorously doing so.  At
almost any hour of the day or night there are numerous, ongoing
opportunities for citizens to express their views on radio, television and
cable "talk shows" of various kinds -- not to mention the many guest
interview programs (onto which one must be invited, but which together
present a range of views).  Some are broadcast nationally and available to
all USA citizens, others are only broadcast locally.  In addition to
broadcasting outlets there are also, of course, the numerous newspaper and
magazine "op-ed" and "letters" pages, and increasing numbers of
"electronic bulletin boards" and other computer communications
opportunities. Home computers also make "online" or "desktop
publishing" opportunities available to millions.  And much of the dialogue
goes on over family dinner tables, in coffee shops, and around the water
coolers at work.  The discussion feeds back upon itself, public opinion is
formed, and then shifts.  There is a constant polling of this public opinion
by numerous media, political and commercial firms. Political and public
interest organizations propose actions based on public opinion --
everything from putting in a new street light locally to banning cigarette
smoking in public buildings, or going to war.  Government officials often
change policies based on their perception of public opinion -- without
even waiting for a formal public protest.  In short, the self-governing
process really does work in practice in its own imprecise and imperfect
way.  It is more than just a theoretical model.

13.  Although not the subject of this paper, the provision of free public
education, free public libraries, and reduced postal rates for newspapers,
magazines, books, and library materials was also an early expression of
official commitment to the informational needs of a self-governing
society.  More modern forms of this recognition in the USA are the
creation of "National Public Radio" and public television in the 1960s,
and the Clinton Administration's efforts to make government documents
available to citizens electronically, online, by way of Internet connections
to government computers.

14.  In practice, the values of the First Amendment are often balanced
against other interests of the society (such as protecting children from
obscenity, requiring contents labels on food and pharmaceutical products,
or maintaining secrecy in wartime about, say, the movement of troops). 
But at least one Supreme Court judge has pointed out that the literal
language of the First Amendment (unlike, say, the Fourth Amendment,
which protects citizens from "unreasonable searches" of their homes by
government officials), does not merely prohibit unreasonable restraints on
free speech.  It provides that "Congress shall make no law" abridging free
speech.  Another Supreme Court judge referred to the "preferred position"
of the First Amendment when weighing values.  Whatever language or
analyses they use, virtually all judges recognize that there is something
very special and precious about free speech.

15.  I have sometimes noted the distinction between "a marketplace of
ideas" and "the ideas of the marketplace."  (a) One thing meant by that
refers to the influence of advertisers on the content of advertiser-supported
newspapers and broadcasting.  For example, lung cancer (from smoking
cigarettes) is now a greater health risk for American women than breast
cancer.  Health, nutrition and exercise are big topics for "women's
magazines."  And yet, those women's magazines that accept cigarette
advertising write very little about these 450,000 deaths a year.  (b) That
such outlets are owned by large corporations, possibly engaged in other,
controversial, businesses about which their journalists need to report, may
also affect which information and thoughts are permitted to become "ideas
of the marketplace."  For example, one of the three or four major USA
television networks, NBC, is owned by one of the country's largest
corporations:  General Electric.  At the time it purchased NBC some
wondered if GE, which is in the nuclear power station business, might use
NBC News to help promote public acceptance, and public utility purchase
of, nuclear power stations.  At about that time NBC broadcast a
pro-nuclear documentary.

16.  The first three branches of government would be, as discussed above
(see text and endnote at note call 6), the legislative, executive and
judicial.  The federal "independent regulatory commissions"
("independent" of what, and why, and to what extent we need not pursue
here) have also been referred to as a fourth branch of government.  The
Federal Communications Commission would be an example of such an
agency.  The author is aware that the Russian expression, "fourth branch
of government," had an entirely different meaning during the Soviet era. 
In USA political rhetoric the phrase has no negative, or cynical,
overtones.

17.  Autonomous, yes, but see "Appendix:  'Autonomy' is not
'Independence,'" below, for some significant restraints on the exercise of
real independence.

18.  The use of the word "check," or "checking value," helps explain why
the media would be described as a "fourth branch of government."  See
endnote 16.  The three branches of government are said to be a "check"
on each other.  For example, the President appoints officials, but the
Senate must approve them.  The President requests money, but the House
appropriates it.  The Congress passes laws, but the courts can render them
void, as unconstitutional.  The ways in which the media function as an
analogous check are explained in the text.

19.  A society, of course, has many other potential ways to investigate
such institutions and hold them to account.  The legal system is of some
use.  There may be regulatory agencies for monopolies.  Legislative
committees can hold hearings.  Various police agencies, with a variety of
techniques, may play a role.  The institution may have internal procedures
to watch for, and try to avoid, criminal violations or other abuses.

20.  (a) Many of these opportunities are legally enforceable rights of
reporters.  Although outside the scope of this paper, a couple of examples
would include "public trials," "sunshine" or "open meetings" laws, and the
"Freedom of Information Act" (providing that, with some exceptions,
reporters and citizens alike can get access to most paper in government
files).  President Clinton's Administration has recently opened up millions
of formerly-classified documents in what the New York Times has called
"the least secretive policy on Government records since the birth of the
modern national security apparatus in 1947."  Tim Weiner, "U.S. Plans
Secrecy Overhaul To Open Millions of Records," New York Times,
March 18, 1994, p. A1.  (b) Of course, reporters may have some
assistance.  But that only makes their "checking value" function more
obvious ÄÄ and effective.  "Whistle-blower" refers to someone within an
institution who refuses to maintain secrecy about an abuse (that is, they
"blow the whistle" to attract attention).  Whistle-blowers sometimes
provide information, often in confidence, to reporters.  This might take the
form of machine copies of documents mailed to a reporter in a plain
envelope with no return address.  (c) This option -- "going to the media,"
as it is called -- may be thought of as analogous to someone turning to the
courts, or an elected legislator, for relief.

21.  But see endnote 15 for examples of results of "investigative
reporting" not desired by owners or advertisers, and see "Appendix:
'Autonomy' is not 'Independence,'" for illustrations of government
influence on the content of the USA's "autonomous" media.

22.  Even the USA Army has used this concept in its efforts to recruit
new soldiers with its motto (in a singing television commercial): "Be all
that you can be, in the Army."

23.  The "safety valve" value may be thought of as (a) a cynical,
meaningless grant from those who control the society to those who do
not, in an effort to reduce any effective (that is, violent) efforts at change
by the latter that would reduce the wealth or power of the former.  Or it
may be thought of as (b) a very real commitment to democratic rule,
including the possibility of loss of power, based on a belief that it is
wrong to silence any group in the society -- whether or not they would be
likely to turn violent if suppressed.  For our purposes we need not take
sides in that debate.

24.  Following the arson, looting, and rioting in downtown Los Angeles in
1965, one of the young rioters was quoted as saying, "What we do last
night, maybe it wasn't right.  But ain't nobody come down here and listen
to us before" -- again making the link between speech and violence.  As
Dr. King put it, "A riot is the language of the unheard."  Many instances
of airline hijacking, or hostage taking, turn out to involve both a
speech-related frustration on the part of those committing the crime, and a
desire (sometimes demand) for access to the media to tell their story.

25.  Whether this reason is valid is another matter.  Some argue that by
permitting the expression of grievances one only raises the expectations of
those doing the complaining, increases the anger of those already upset,
contributes to the organization of what may turn out to be even larger
groups of individuals willing to engage in violence, and thereby intensifies
the danger of disintegrating the society.  Nonetheless, the "safety valve"
effect of the First Amendment is often cited as one of the values of free
speech.  It can also be thought of in the context of self-governing; that is,
that government is best which does hear and respond to all its citizens'
grievances, whatever may or may not be the violent consequences.

26.  See text and endnotes at note calls 3 and 4.

27.  The case is Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241
(1974).

28.  Without going into detail, and providing all the citations, some
examples of the exceptions follow.  (a)  The "fairness doctrine" (no longer
recognized by the FCC) relates to issues, not an individual's right of reply,
and provides that (1) broadcasters must deal with "controversial issues of
public importance," and (2) in doing so, the station cannot be used as an
unrelieved instrument of propaganda; a range of views must be presented. 
(b)  The "personal attack doctrine" provides that when a named individual
is attacked by the station that individual has a right to know what was
said and to personally come on the station to answer.  (c)  The "equal
opportunity doctrine" provides that if a candidate for public office is
permitted to use a station during a political campaign all other candidates
for that office must be given an "equal opportunity" to use the station.  (If
the station owner lets no one broadcast no rights are created.) (d)  Only
candidates for federal office (e.g., President, Senators, Members of
Congress) have a right to buy a "reasonable" amount of time.

29.  The leading case for this proposition is Columbia Broadcasting
System, Inc. v. Democratic National Committee, 412 U.S. 94 (1973).

30.  See "What are the values and consequences of the First
Amendment?" beginning on page 3, above.

31.  See endnote 12, above.

32.  For a fuller discussion see, "What are the values and consequences of
the First Amendment?" beginning on page 3, above.

33.  In fact, there are a great many alternatives.  Some are set forth in
"Appendix:  Alternative Systems of Broadcasting," below. Those
described next in the text assume a system of privately owned,
commercial, advertising-supported stations.

34.  See "Who's abridging the speech?" beginning at page 7, above.

35.  The USA Supreme Court has said, "There is no sanctuary in the First
Amendment for unlimited private censorship operating in a medium not
open to all."  Red Lion Broadcasting. Co. v. Federal Communications
Comm'n, 395 U.S. 367 (1969).  However, that and similar language ("It is
the right of the public to receive suitable access to social, political,
esthetic, moral, and other ideas and experiences which is crucial here")
related to a finding that the "fairness doctrine" and "personal attack
doctrine" were constitutional. When it came to a right of paid entry to
broadcasting the Court found there was a sanctuary in this "medium not
open to all."  That case was Columbia Broadcasting System, Inc. v.
Democratic National Committee, 412 U.S. 94 (1973).  See generally text
and endnotes at note calls 27, 28, and 29, above.

36.  The history of the cable industry's community access channels is too
involved, and unnecessary to this paper, to explore in detail.  In brief, the
requirement has sometimes come from Congress, or the FCC or local city
franchises.  It provides that a certain number of channels (say one to six,
on what are usually 20-to-60-channel cable systems) must be made
available for local citizens, schools and governments.  (They are
sometimes called "PEG" channels, for "public, educational and
governmental.")  The channels are available to everyone in the community
who subscribes to the cable system (at a cost of about $10 to $35 a month
for all services).  The usual practice is that the cable company has little or
no control over the content of its "PEG" channels, and that virtually
anyone can walk in off the street and put her or his videotape out over the
system on the "public access channel."  Although the programming on
PEG channels is normally limited to a single community and cable
system, and seldom has large viewing audiences, it has often played a
very significant role as a showcase for local talent of various kinds, and
discussion of local issues.

37.  See page 3, above.

38.  See endnote 28, above.  In fact, the Aspen Communications Program
Director, Charles Firestone, once recommended an "access is fairness"
proposal to the Federal Communications Commission that would have
literally substituted access for the fairness doctrine. Without describing the
details, the general idea was that broadcasters who were willing to make a
certain proportion of their broadcast day available to uncensored speech,
sometimes called "free speech messages," would no longer need to
comply with the requirements of the FCC's fairness doctrine.

39.  I sometimes tell the (apocryphal) story of a young reporter, who
starts out with enthusiasm.  She works very hard researching,
interviewing, writing, and editing an "investigative journalism" article
exposing the corruption of one of the major advertisers in the paper.  The
story is so good it may win for her a journalism prize.  She proudly gives
it to her editor.  She never hears about it again, and it never appears in
the paper.  The next time she has an idea for an investigative journalism
piece, about an incompetent local official, she decides to check with her
editor first.  He discourages her from doing the story, and she drops the
idea.  The third time she thinks of a major investigative journalism topic
(different property tax rates paid by local citizens) she not only doesn't
research and write it, she doesn't even bother talking to her editor about it. 
The fourth time?  The fourth time the idea doesn't even cross her mind.

40.  It has been estimated that as many as 60 percent of the stories
appearing in the Wall Street Journal come from publicity releases sent to
the Journal by public relations firms on behalf of corporate clients.  It is
charged that some of these stories are not investigated, or even rewritten,
but simply published as received.

41.  Although beyond the scope of this paper, the issue of how a nation's
people can be trained and encouraged to participate more actively in a
national dialogue, and process of self-governance, is well worth
exploration.  (a) Scarcely more than a generation ago the expression
"children should be seen and not heard" was a common way of
discouraging youngsters from speaking out.  Children learn quickly from
parents, and teachers, whether outspokenness is to be rewarded or
punished.  So adult attitudes toward children is one place to begin.  (b) 
Opportunity is another.  School newspapers, radio and television stations,
training with and opportunity to use video cameras, community access
channels on cable, radio and television call-in programs, and letters to the
editor columns, all contribute to the opportunity for, and acceptability of,
citizen participation by young and old alike.


                                # # #


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