The following paper is an attempt to use the Internet as forum for a reasoned discourse on the obligations and the responsibilities of the "Press" (which I call the "Mainstream Media" ) in this age of Media Conglomerates and "Infotainment."

Through argument and the criticism of those arguments, I am trying to establish the legal rights of American citizens to compel the Mainstream Media to provide the American people with the information it needs to perpetuate the representative government created by the Constitution. In my view, the United States is in danger of becoming a Corporate State, where the unrestrained power of private corporations led by un-elected persons is stronger than the combined power of the individual citizens in the country.

The following paper should be viewed as a draft document and is being put forward so I can isolate faulty arguments or logic, unsupported assertions, and all of the other things that characterize a work in progress. At the present time, the discussion on this paper is being conducted in the Salon Magazine Table Talk Forum in the Politics folder and in the thread The Media's Constitutional Responsibilities. I would particularly appreciate constructive criticism of the Constitutional arguments below:

The People's "Right to Know"

Under the Constitution, the United States is a country governed by a representative government.-- The purpose of this web page is to spell out two important concepts which I believe are essential to the continued existence of this representative government -- the People's "Right to Know" and a "Well-Informed Electorate."

Under the Constitution of the United States, as amended, the people of the United States, as the Sovereign Power in the land, created the legal foundation of the United States as a representative government. In a country with a representative government, the Sovereign Power is delegated by the people of the country to representatives through the vote of a qualified electorate. Under Section IV of the Constitution, the same system of representation, voting, and a qualified electorate was extended to the individual states of the United States.

In order to insure that the delegated power is wisely used, the people of the United States and the individual states must be well-informed on important matters affecting the present status and the future of the country and the particular states. To be well-informed, the people must have access to all of the news on important matters affecting the present status and future of the United States and the present status and future of the particular states.

At the national and state level, the people have differed in the past on the identity of important matters, they differ today, and they will differ in the future. However, they must agree that at any time, these important matters exist, and must be known if the future of the country is to be secured.

It is therefore fundamental to our representative form of government that the voting population of the United States has a "Right to Know" of all these important matters at a given time, and that therefore the electorate is a "Well-Informed Electorate." As can be seen from the previous words, the concept of a "Well-Informed Electorate" has been, and should be a constant throughout our past, our present, and our future. However, while the concept of the "Right to Know" is also constant through our history and our future, it is also linked to idea of "important matters affecting the country at a given time." This reflects the fact that what was important in the first decades of our country may not be important today, and what is important today may not be important fifty years from now. Our daily circumstances change.

What I bring to this discussion is a certain set of experiences and a certain set of beliefs. I served my country as a foreign intelligence analyst for over forty years, in the government and in the private sector. It was very difficult during that time to avoid mistakes and to avoid learning from those mistakes.

It was possible to divide the problem parts into individual intelligence problems with individual intelligence products. An intelligence product may be simple in nature and based upon simple techniques used on simple information. The placing of microphones in the quarters of captured German generals during the Second World War is an illustration of this.

At the other extreme, the information may be highly technical in nature and based on highly sophisticated collection and processing techniques which results in highly technical intelligence. Here, the consumer of the intelligence must have some mental acuity and the product must be carefully presented so it is understood. This is important, but it is also important to realize that complex and highly technical intelligence problems can be handled by analysts who understand the complexity and the technology.

In short, it is possible to divide most complex problems into parts, to analyze the parts, and then to synthesize the analyzed parts back into a coherent whole. Other complex problems may not be so tractable, and it is the wise intelligence manager and wise intelligence analyst who can sort out the one from the other.

And then we have highly-classified, highly sensitive intelligence. Sometimes the amateur users were so impressed by the source or the technique of the intelligence that intelligence of very little value received a credibility it did not deserve. But given all of these dysfunctional attributes, we still needed and still need a U.S. intelligence system to provide early warning to our decision-makers.

After I retired I began working on a book about intelligence in World War Two. One of the reasons I did this is that we are still doing some of the stupid things that were done during World War Two (and World War One, the Civil War, and perhaps the Crusades).

Three years into the book I realized that intelligence was only part of the larger information problem -- that the decision-makers needed both information and that sub-set of information known as intelligence. I also learned that the use, mis-use, abuse, and exclusion of information and intelligence by senior decision-makers during the European part of the Second World War may have extended that war by a six months to a year. Tens of thousands of young men may have died for little gain and no glory.

Now, what does all this have to do with the People's "Right to Know" and a "Well-Informed" Electorate? In a country with a representative government, the ultimate decision-makers are the Electorate. I repeat,

In a country with a representative government, the ultimate decision-makers are the Electorate.

How is it possible to erode and degrade the decision-making power of the Electorate? As I have just stated, the failure of the information and intelligence systems of the Allied decision-makers during World War Two resulted in policies that may have extended the European War and wasted valuable resources and young human lives. After you have worked in intelligence for years, you begin to realize:

The lack of information about what is going on in the real world, including the real world of the internal affairs of the United States, is a danger to the United States and is a danger to the future of this country.

At about the same time that I retired, I began critically reading my local newspaper as I had critically read intelligence reports in the past. It was about this period of time when I began to observe the similarities between U.S. intelligence and U.S. news coverage. How is it possible to inform the American Electorate, the mechanism through which the Sovereign Power of the people is transferred through the vote to our representative government? In letters to a local newspaper, I began comparing the positive and negative attributes of regional intelligence centers around the World with regional newspapers. Much of the intelligence for embassies and the unified and specified commands of the military comes from the national intelligence centers in the United States. Some of the intelligence fed into the national intelligence centers comes from the regional centers. There are many similarities between the national and regional intelligence centers and the national and regional newspapers in this country.

But there were and are major dysfunctionalities in the national intelligence system. Minor country "X" hits the news and the bulk of U.S. intelligence resources are turned like "spotlights" to focus on it and little else. This includes resources which should remain focused on other problem areas across the World. The daily intelligence summaries at the national and regional levels are loaded with information about minor country "X" and are very similar to daily newspapers exhaustively covering a "big" story. Meanwhile other threats to the United States are unwatched or receive less attention. And then minor country "Y" hits the news . . .

Let us return once more to the question of the People's "Right to Know" and a "Well-Informed" Electorate. Given the size and geographic dispersion of the Electorate, the only practical means of informing it is through the Mainstream Media. What does this term mean? It is a name I have given to the private media corporations which effectively control the broadcast expression of news, opinions and beliefs in the United States. That is why the word "Mainstream" is used. For the remaining elements of the media in the United States are small and have an essentially limited capability of broadcast expression. This limits them to very small audiences and to a very small influence on the body politic.

But along with privileged rights guaranteed under the Constitution come the responsibility and the obligation to insure the continuity of the very representative government created by that Constitution. And what were the responsibilities and the obligations of the privately-owned press during the time that the Constitutions and the Bill of Rights were written, debated, and then ratified by the states?

It is within this original context that the privately-owned presses of the United States played a fundamental role in our representative government. A fundamental role which continues to this day, and which, for the Mainstream Media, consists of unique rights and unique responsibilities and obligations.

But the Mainstream Media is made up of private enterprises. And private enterprises have property rights. The Constitutional questions here are two. First, are the property rights of the Mainstream Media superior to the responsibilities and obligations granted to the Mainstream Media in return for the right to a free press guaranteed under the First Amendment. Second, are the property rights of the Mainstream Media superior to individual right of every American to the representative government that is the very basis of the Constitution.

The danger to representative government in the United States occurs when the American Electorate is denied the Right to Know about all significant news, opinions and beliefs on important matters affecting the present status and the future of the United States. At the present time, this Right to Know can be effectively denied the Electorate by the very institution selected by the writers of the Constitution to insure this does not happen. Historically the press, and now the Mainstream Media has fulfilled its obligations and responsibilities to the American people by providing the free expression and broadcast expression of news, opinions and beliefs.

But now the Mainstream Media is owned by media conglomerates whose numbers decrease each year. By the end of the year 2000, the number of media conglomerates may be reduced from eight such organizations down to seven. We are moving rapidly towards monopoly control of the media, and I would argue, towards the monopoly control of the free expression of news, opinions and beliefs. And this is the free expression we must have if we are to continue being a country with a representative government.

In late 1993 and early 1994, I was staggered by the vast number of news stories in my local newspaper containing allegations of criminal activity by the President and his wife. A story making un-sourced and unsubstantiated allegations or accusations would appear in the paper on a Monday. On Tuesday or Wednesday we would get a rehash of the Monday story (there would be no "new" news) and on Thursday or Friday a rehash of the rehash. Sometimes, if the paper thought our attention span had slipped there would be a rehash of a rehash of a rehash. By the end of the week, the reporters of these unsubstantiated allegations in the Mainstream Media (usually the Washington Post or the New York Times) would have a new anti-Clinton angle to float or a new accusation to make, and sometimes, even new information (or disinformation) leaked from the Starr Chamber. This would appear on Sunday, followed on Monday or Tuesday by a rehash, which would then be followed by a rehash of the rehash.

Now the editors of the local newspaper claimed that they were simply printing what the Washington Post or the New York Times was reporting. As these newspapers were highly credible, or so they believed, then the stories were credible. In 1998, I directly warned these editors that the local newspaper should begin constructing its own timeline and information base on matters "Whitewater" and all of the "Gates" so that they could check past reporting against present reporting. If they had done this, they would have quickly realized, as I had, that there were major inconsistencies and conflicts in the reporting over time. The Washington Post reporting in particular, was bad because it would say one thing in 1994 about Webster Hubbell, for example, and then say something completely different about him in 1995. The 1994 reporting was consistent with the Republican "spin" on Hubbell, as was the 1995 reporting, although the "spin" had changed.

Four and one-half years and several hundred thousand investigative hours later, many people are still convinced by the Mainstream Media's indoctrination that criminal activity of some kind took place. They cannot describe it, characterize it, or provide detailed information on it,but they know it is true.

The reason for the Whitewater Smear Campaign was the Congressional elections of November 1994, when control of the Senate and the House fell to the Republican party. The Mainstream Media deliberately played a very large role in the Republican victory because almost all of the Whitewater stories were highly critical of the Clintons and there was no counter-vailing information.

Akron Beacon-Journal - 361 articles (almost one a day)

Charlotte Observer - 460 articles (almost 1.3 a day)

Detroit Free Press - 308 articles

Long Beach Press Telegram - 219 articles

Miami Herald - 344 articles

Philadelphia Inquirer - 338 articles

San Jose Mercury News - 574 articles (almost 1.6 a day)

St Paul Pioneer Press - 488 (over 1.3 a day)

Baltimore Sun - 576 articles (almost 1.6 a day)

Boston Globe - 421 articles

Minneapolis Star-Tribune - 344 articles

At some time in the late summer of 1998, I stumbled across an article in the local section of my newspaper on a legislative fight in Congress over a law or a rider to a law proposed by the majority Republican lawmakers which would do away with the limits on toxic wastes from California mines. After about fifty hours of research in trying to track down this and then other anti-environmental laws or riders to laws I discovered a document on the Natural Resources Defense Council's web site which listed forty-nine such anti-environmental laws or riders to laws.

Using the NRDC list, which provided some geographic locations and other information, I then spent about an additional two searching for the names of the Senators or Representatives who originally proposed the laws or riders to laws. I tried to recover their legislative histories as they passed through the various committees, and finally, I tried to determine who voted for them and who did not. By this time I had seen enough material in the Congressional Record to realize that a legislative battle had been going on since the beginning of this Congress in January 1998, and that the battle was actually a continuation of a legislative fight that had begun two years before in January 1996.

I began preparing a web page based upon the NRDC list and the vote records in the Senate and in the House because this was the only information available. The title of the web page 'WHEN THE EVIL THAT MEN DO IS NEVER REPORTED. It can be found at:

The web page provides information on ten (10) anti-environmental laws or riders to law approved by the Republican Senate by July 24th, 1998. These included delaying the reduction of pesticide use in children's products, the construction of a road through the middle of a wildlife refuge in Alaska, the blocking of actions to reduce Greenhouse Gas pollution, and the delaying of compliance to federal safety regulations in transporting hazardous material, among other things.

The web page lists twenty (20) additional anti-environmental laws or riders to laws still pending in the Senate as of late July 1998 and awaiting the results of a Republican joint Senate-House conference. This included a taxpayer subsidy for the construction of an access road to a privately- owned ski area, subsidizing the logging of trees in a national forest, and eighteen similar law or riders.

By late July 1998, the Republican House had passed five (5) anti-environmental laws or riders to laws blocking the reduction of Greenhouse Gas Pollution, blocking the reduction of Methane Gas Releases from farm animal operations, stopping the EPA from assessing the environmental impact of new highway construction through park lands in southern California, stopping the Department of Transportation from updating corporate vehicle fuel economy standards, and relaxing the high occupancy vehicle restrictions on New Jersey highways.

In the House, there were an additional eleven (11) anti-environmental laws or riders to laws that were passed by the Republican House in spite of Democratic efforts to kill them. The bills the Democrats failed to kill were on a moratorium on PCB cleanup, a delay in implementing the Food Quality Protection Act, a delay in regulating mercury emissions from power plants, the interfering in EPA efforts to (1) clean up Superfund sites, and (2) to reduce air pollution in national forests, a rider to grant an easement to construct a road through a national forest in Alaska, a rider to end the Columbia Basin Ecosystem Management Plan, a rider to remove several Florida land parcels from the Coastal Barrier system, and a rider to force the National Park Service to keep a mountain pass open 24 hours a day throughout the year.

Three of the forty-nine anti-environmental laws or riders to laws were killed in the House.

These anti-environmental laws or riders to laws affected a number of national forests and parks owned by the American people. They affected the clean up of toxins and the improvement of food eaten by children and the American people.

Yet the news of the proposed anti-environmental laws or riders to such laws were concealed from the American people by the Mainstream Media. What other news on matters of national import has been denied us?

We are told the Constitution did not mandate a "Well-Informed" Electorate, and it is true the Constitution did not call for this in the expressed rights or powers of the people. But the people's "Right to Know" may very well be one of the rights not expressed in the Constitution but none the less reserved to the people under the Ninth Amendment.

We are also told it is impossible to define the information needed for a Well-Informed Electorate. Notice however, that in our statements above, we carefully limited the opinions and beliefs to "significant" opinions and beliefs on "important" national matters as a practical approach to the problem. The people's "Right to Know" is limited to a particular time -- the present -- when only certain national matters are important. This means as part of the people's "Right to Know," we need to continuously re-define important national matters as our circumstances change.

We do have some guidance in this on the limitations of "important national matters." In 1966, the U.S. Supreme Court overturned an Alabama state law which punished a newspaper editor for publishing an editorial "on election day urging people to vote a particular way in the election." It found this was a clear violation of the First and Fourteenth Amendments on the Freedom of Speech and the Freedom of the Press (see paragraph 218 below). In paragraph 219, however, the decision goes to the constitutional structures that "the Framers of our Constitution thoughtfully and deliberately selected to improve our society and keep it free."

[384 U.S. 218 (1966)] "We come now to the merits. The First Amendment, which applies to the States through the Fourteenth, prohibits laws "abridging the freedom of speech, or of the press." The question here is whether it abridges freedom of the press for a State to punish a newspaper editor for doing no more than publishing an editorial on election day urging people to vote a particular way in the election. We should point out at once that this question in no way involves the extent of a State's power to regulate conduct in and around the polls in order to maintain peace, order and decorum there. The sole reason for the charge that Mills violated the law is that he wrote and published an editorial on election day urging Birmingham voters to cast their votes in favor of changing their form of government."

[384 U.S. 219 (1966)] "Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs."

"This of course includes discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such [384 U.S. 214, 219] matters relating to political processes."

"The Constitution specifically selected the press, which includes not only newspapers, books, and magazines, but also humble leaflets and circulars, see Lovell v. Griffin, 303 U.S. 444 , to play an important role in the discussion of public affairs."

"Thus the press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve. Suppression of the right of the press to praise or criticize governmental agents and to clamor and contend for or against change, which is all that this editorial did, muzzles one of the very agencies the Framers of our Constitution thoughtfully and deliberately selected to improve our society and keep it free."

In the U.S. Supreme Court decision of the Miami Herald v.Tornillo (418 U.S. 241) in 1974 the Court held that a Florida law on a citizen's Right to Reply was unconstitutional under the First Amendment as extended by the Fourteenth Amendment to the states. Thus, in both Mills v. Alabama and the Miami Herald v. Tornillo, the Court overturned state laws limiting the Freedom of the Press. It is therefore clear that the Federal government and the governments of the various states cannot pass laws limiting the Freedom of the Press in this way. One can assume this law also applies to governments in the United States at lower levels. But do these strictures apply to individual members of the American electorate?

However the arguments supporting the enforceable right of access to the press provide an excellent statement and history of the problem of a private monopoly controlling the free expression of speech in the United States:

[From the decision]

The appellee and supporting advocates of an enforceable right of access to the press vigorously argue that [418 U.S. 241, 248] government has an obligation to ensure that a wide variety of views reach the public. The contentions of access proponents will be set out in some detail. It is urged that at the time the First Amendment to the Constitution was ratified in 1791 as part of our Bill of Rights the press was broadly representative of the people it was serving. While many of the newspapers were intensely partisan and narrow in their views, the press collectively presented a broad range of opinions to readers. Entry into publishing was inexpensive; pamphlets and books provided meaningful alternatives to the organized press for the expression of unpopular ideas and often treated events and expressed views not covered by conventional newspapers. A true marketplace of ideas existed in which there was relatively easy access to the channels of communication.

Access advocates submit that although newspapers of the present are superficially similar to those of 1791 the press of today is in reality very different from that known in the early years of our national existence. In the past half century a communications revolution has seen the introduction of radio and television into our lives, the promise of a global community through the [418 U.S. 241, 249] use of communications satellites, and the specter of a "wired" nation by means of an expanding cable television network with two-way capabilities. The printed press, it is said, has not escaped the effects of this revolution. Newspapers have become big business and there are far fewer of them to serve a larger literate population. Chains of newspapers, national newspapers, national wire and news services, and one-newspaper towns, are the dominant features of a press that has become noncompetitive and enormously powerful and influential in its capacity to manipulate popular opinion and change the course of events. Major metropolitan newspapers have collaborated to establish news services national in scope. Such national news organizations provide syndicated "interpretive reporting" as well as syndicated features and commentary, all of which can serve as part of the new school of "advocacy journalism."

The elimination of competing newspapers in most of our large cities, and the concentration of control of media that results from the only newspaper's being owned by the same interests which own a television station and a radio station, are important components of this trend toward [418 U.S. 241, 250] concentration of control of outlets to inform the public.

The result of these vast changes has been to place in a few hands the power to inform the American people and shape public opinion. Much of the editorial opinion and commentary that is printed is that of syndicated columnists distributed nationwide and, as a result, we are told, on national and world issues there tends to be a homogeneity of editorial opinion, commentary, and interpretive analysis. The abuses of bias and manipulative reportage are, likewise, said to be the result of the vast accumulations of unreviewable power in the modern media empires. In effect, it is claimed, the public has lost any ability to respond or to contribute in a meaningful way to the debate on issues. The monopoly of the means of communication allows for little or no critical analysis of the media except in professional journals of very limited readership.

The obvious solution, which was available to dissidents at an earlier time when entry into publishing was relatively inexpensive, today would be to have additional newspapers. But the same economic factors which have caused the disappearance of vast numbers of metropolitan newspapers, have made entry into the marketplace of ideas served by the print media almost impossible. It is urged that the claim of newspapers to be "surrogates for the public" carries with it a concomitant fiduciary obligation to account for that stewardship. From this premise it is reasoned that the only effective way to insure fairness and accuracy and to provide for some accountability is for government to take affirmative action. The First Amendment interest of the public in being informed is said to be in peril because the "marketplace of ideas" is today a monopoly controlled by the owners of the market.

Proponents of enforced access to the press take comfort from language in several of this Court's decisions which suggests that the First Amendment acts as a sword as well as a shield, that it imposes obligations on the owners of the press in addition to protecting the press from government regulation. In Associated Press v. United States, 326 U.S. 1, 20 (1945), the Court, in [418 U.S. 241, 252] rejecting the argument that the press is immune from the antitrust laws by virtue of the First Amendment, stated:

In New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), the Court spoke of "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." It is argued that the "uninhibited, robust" debate is not "wide-open" but open only to a monopoly in control of the press. Appellee cites the plurality opinion in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 47 , and n. 15 (1971), which he suggests seemed to invite experimentation by the States in right-to-access regulation of the press. 18 [418 U.S. 241, 253] Access advocates note that MR. JUSTICE DOUGLAS a decade ago expressed his deep concern regarding the effects of newspaper monopolies:

They also claim the qualified support of Professor Thomas I. Emerson, who has written that "[a] limited right of access to the press can be safely enforced," [418 U.S. 241, 254] although he believes that "[g]overnment measures to encourage a multiplicity of outlets, rather than compelling a few outlets to represent everybody, seems a preferable course of action." T. Emerson, The System of Freedom of Expression 671 (1970).

Again we must remember that Mills v. Alabama and the Miami Herald v. Tornillo only determined that the states, in addition to the Federal government, could make no laws abridging the Freedom of the Press.

Moreover, it is clear from Associated Press v. United States, 326 U.S. 1, 20 (1945), the Court, in [418 U.S. 241, 252] that the "First Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society."

"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 under the First Amendment does not sanction repression of that freedom by private interests."

It is argued that 326 U.S. 1 only applies to the anti-trust aspects of Associated Press v. United States. That the Court had a much broader view of the issue is demonstrated in the concurring opinion of Justice Frankfurter 326 U.S. 27, 28, 29:

If public censorship was unconstitutional, then it appears that "private restraints" on free speech, i.e. private censorship is also unconstitutional. Why? Because private censorship defeats a "public interest" that is essential to life of our democratic government.