Media Concentration and
Iowa City, Iowa
August 10, 2003
It was Evans Worthley who first attracted me to this building. And probably about 55 years ago that I signed the membership book in his presence. I say “probably” because, sadly, that membership book has long since disappeared.
My parents, Edna and Wendell Johnson, refused to pick a church for me. They suggested I visit them all and choose for myself. And so I did.
I discovered that I rather enjoyed visiting churches and learning about different religions. So you can understand how I would be attracted to a church that gives its members extra points, rather than ex-communication, for such curiosity and inquiry.
It seemed to me, from an early age, that it was inconsistent with a truly inquiring mind to cordon off some intellectual areas as beyond questioning – though I fully recognize that there are many well-regarded scientists who seem to be able to do so.
And this approach to inquiry is not unrelated to the topic you have chosen for me today: the relationship between media concentration and democracy.
There are more people who can shout “First Amendment” with confidence than there are judges who can explain its intricacies.
What does it mean to say that “Congress can make no law abridging the freedom of speech or of the press”?
It was clear to Justice Black, the Supreme Court justice for whom I clerked during the 1959 Term of Court. “’No law’ means ‘No law,’” he said. The drafters knew how to write qualifiers – like “unreasonable” searches, or “excessive” bail – he said. So when they wrote “No law” they must have meant “no law.”
It was one of the first uses of the phrase, “Just what part of ‘no’ is it that you Justices don’t understand?”
It was an interpretive analysis that was hard to argue with. But the Supreme Court has argued with it anyway, and Justice Black has lost.
There are laws telling manufacturers what they must put on their packages of cigarettes, or pharmaceuticals. There are limitations on how much advertising a newspaper can carry and still get reduced postal rates. We even have laws prohibiting humor when one is walking through an airport metal detector. Speech can be punished, or prohibited, if it can be shown to be defamatory, or obscene.
And, specifically related to our topic today, there are laws limiting who can use radio and television transmitting equipment. You must first get a license from the FCC, specifying the frequency, hours and power of your station. Indeed, broadcasting is one of the few businesses -- in what the owners insist is a part of the free enterprise system -- in which the government grants you what has been called a monopoly, “a license to print money,” that enables you to send your competitor not only into bankruptcy, but into Leavenworth. Try broadcasting on Channel 9 in Iowa City without a license and just see how quickly your residence changes.
So “no law” has been interpreted to mean “no law, the reasons for which, when balanced against the values of the First Amendment, do not outweigh the reasons for the First Amendment – as determined by whomever happens to be sitting on the Supreme Court bench at the moment.”
Moreover, they’ve even re-interpreted the word “Congress,” which seems equally clear. “Congress shall make no law” is interpreted to mean “the City Council of Iowa City shall make no law.” You may agree with that reading, but you have to admit it’s a bit of a stretch.
Now it’s one thing to balance First Amendment rights against other interests of the government. Take the case of 1960s draft card burning. The young man argued that burning his draft card was a form of protected speech. The government argued, back in the time of the draft, that national defense necessitated that potential draftees carry, rather than burn, their draft cards.
That’s one kind of balancing.
But what do you do, how do you balance the interests, when both parties claim to find support in the First Amendment for their position?
Imagine that you live in Los Angeles, where the LA Times is the dominant newspaper. You have a direct, personal, perhaps economic interest in an issue affecting the entire Los Angeles basin. Or perhaps you want to respond to what you view as a defamatory statement about you in a prior issue of the Times.
You argue that the First Amendment guarantees you the right to speak through the pages of the Times – the only meaningful way to participate in this particular public dialogue.
But the Times argues that it has a First Amendment right to control the content of its pages, a right to modify, or exclude entirely, your statement – which, let us say, you are willing to pay to run as an advertisement.
What should we do when we have to balance a plaintiff’s First Amendment argument against the defendant’s First Amendment argument?
What makes sense to me is to look to the purposes of the First Amendment. What is it designed to accomplish? How does it relate to our democratic values? How would life in America be different without it? Which result, in any given case, comes closest to serving those purposes?
It seems to me there are five such purposes.
Search for truth, and a marketplace of ideas. UUs are committed to free inquiry. So must be a democracy. Whether it be economic, political, scientific or philosophical truth, the best result will come from a robust exchange of data and opinion, uninhibited by governmental or other institutions.
Self-governing. If we are to be a self-governing democracy there must be an opportunity for our citizens to become informed by others, to formulate their own views, and to express them.
Checking value. Every citizen, but especially the mass media, is a potential check on institutional abuse, whether it be found in agencies of government, corporations – or even universities.
Self-expression. This is what I call “the biological basis for the First Amendment.” Humans are the talking tribes. Our form of communication, our creation and manipulation of symbols, is what distinguishes us from the other animal species. Growth as a human, self-actualization, self-esteem, requires that we have an opportunity to express ourselves.
Safety valve. Martin Luther King once wrote, “Having been denied access to radio and television we have had to write our most persuasive essays with the blunt pen of marching ranks.” How often, in the pre-terrorism days, did hostage takers and airplane hijackers ask for access to television to express their grievances? How often did revolutionaries focus their attacks on television stations and antenna towers? Permitting everyone in America to have access to the outlets of mass media can be, at least in some measure, a method of reducing our levels of violent protest.
Lest there be any question
in your mind, when I look at the concentration of mass media in this country
I find it fundamentally anti-democratic. It seems to me that it flies in
the face of every single one of these reasons for the First Amendment in
a democratic society.
Since I am used to speaking for entire semesters at a time, I must summarize, and select but one example, in explaining what the current ownership controversy is about.
All nations initially recognized broadcasting as having too much potential to be treated as commerce, too much political power to place in private hands. Most countries chose to entrust that potential and power to public corporations or government agencies. The remnants of those systems remain today in the form of the BBC in Britain, NHK in Japan, ARD and ZDF in Germany, Sverges Radio in Sweden, and so forth.
Confronted with this near-universal response of the world’s thoughtful nations, however, the U.S. chose federal regulation of private ownership.
It was our Iowa neighbor down the road in West Branch, Herbert Hoover, who was serving as Secretary of Commerce during the 1920s. As is so often the case in the history of government regulation of industry in America, it was the broadcasters who came to him, rather than the reverse. As is also so often the case, what they complained about was not the heavy hand of government regulation, but its absence; they wanted protection from competition.
The broadcasters pleaded with Hoover for a licensing system, one that would grant them monopoly rights while driving their competitors out of business.
And so the Radio Commission of 1927 was born, the predecessor of what became the Federal Communications Commission in 1934.
Our law provided that no individual could “own” a frequency. One could only apply for limited-term licenses. In exchange for the private profit from use of public property licensees promised substantial public service.
The FCC valued “integration of ownership and management” – a one-station licensee-local manager. The diversity of voices from the greatest possible number of licensees was considered a value deeply rooted in the First Amendment.
Indeed, the members of Congress at that time were extraordinarily prescient in their concerns about the potential economic, social and political power of broadcasting, considering that few even understood how radio worked, let alone what it would become.
And a part of the reason they wanted a system in which the station licensee would have but one station, which he or she would operate themselves, located in the community in which they lived, was precisely because they recognized the challenge to democracy from the kind of concentration of media ownership we have in America today.
As Congressman Luther Johnson put it on the floor of the House, if a small group “could dominate these broadcasting stations then woe be to those who would dare to disagree with them.”
This concern, this concept, so easily grasped in the early 20th Century, soon began to erode to the point where it now seems beyond the understanding of today’s politicians.
And so the ownership limits expanded over the years, as did the number of broadcast media – from AM radio, to FM, to VHF television, to UHF, and on to cable and satellite distribution systems.
At the time I was an FCC Commissioner, during the 1960s and ‘70s, the limit was 7-7-7. That is, one licensee holding no more than the licenses to 7 AM, 7 FM and 7 TV stations.
During the time since then, the limit has been raised, a number of times until, today, it does not even involve a number of stations, but rather a percentage of the American television homes that any given licensee could, theoretically, reach. That limit has been 35 percent.
What the FCC did, in its June 4th ruling, among other things, was to raise that 35 percent limit to 45 percent. And so that’s what the fight has been about, and that’s what the Congressional objection has been: the desire to return the standard to 35, rather than the new 45, percent.
Do I object to 45 percent? Of course. But I still think we’d be better off – as long as there are far more individuals who would like to operate stations than there are stations – to start with a standard of one station per licensee.
I wouldn’t say there could never be any exceptions, but that would be the benchmark, the default. Anything more than one station would require the applicant to meet an enormous burden, to explain how “the public interest” – which is, after all the standard to be applied by the FCC – is affirmatively served by the increase, rather than putting the burden on the public to prove why it is not.
Is 45 percent worse than 35 percent? Of course. But 35 percent is so outrageous that it totally overwhelms any concerns about the marginally worse standard of 45 percent.
Something has gone terribly wrong when the FCC permits one corporate licensee to reach 45 percent of the nation’s homes.
But to truly understand the impact of media ownership on democracy one must see the issues in context. For the fact is that there are four factors that substantially multiply, and make multiples worse, the evil from this agency capitulation to corporate political power.
Censorship. The Supreme Court says the First Amendment gives a mass media owner not only the right to free speech, but the right to freely censor others. And the FCC sees no problem with those who own mass media distribution systems, like cable, also owning the programming.
As a result, there is no legally enforceable right even to buy space in a newspaper or time on radio or TV, let alone get it free. If there were, the number of owners would make little difference.
The pre-divestiture AT&T had an absolute monopoly – but no censorship complaints. Everyone had a legally enforceable right of entry.
It’s the combination of the concentration of media ownership with owners’ rights of censorship that threatens democracy. Even editors and journalists don’t have First Amendment rights; only owners do. The audience certainly doesn’t.
Want to exercise your free speech rights in the mass media? Go buy yourself a station.
Multiple media. It’s not just the number of stations. It’s that a company owning chains of radio and TV stations can also own newspaper, magazine and book publishers, movie studios and theaters, cable systems and programming, DVD and video manufacturing and rental. Its “synergy” is just another name for driving out the creative diversity of new talent with hyped superstars and formula programming, cross-promoted by the conglomerate’s subsidiaries.
Neither public service programming nor the Fairness Doctrine was a substitute for a citizen’s right to speak. But they were something.
Service. The FCC used to require coverage of local news, public affairs and community events. There were limits on commercials.
Licensees’ performance was reviewed. No longer. License renewals are virtually automatic.
Fairness Doctrine. Licensees used to have to cover local controversies with a range of views. Not all. Not given individuals. Not “equal time.” Not specified content. And not within each program. Just some minimal balance. Now it’s gone. The FCC repealed it.
FCC and Congress’ approval of media concentration is outrageous. But it’s made multiples worse when only owners have First Amendment rights, they can censor, own content as well as distribution systems, combine multiple media within one firm, have few to no obligations to their communities, and are not even limited by a watered down Fairness Doctrine.
As Congressman Luther Johnson
warned, woe be to us.