On the Kindness of Strangers
Pessimism and Hope
I am writing this in the hope that in 2030 or 2050, the people of the United States will still have the Representative Government established by the Constitution of the United States. If this is true, then when the history of the United States from about 1970 to 2010 is written, this particular period of our history will be shown as a time in which the danger of a highly effective effort to overthrow our representative government was at its highest.
Under the Constitution, the Sovereign Power of the People was to be exercised through the vote and through the election of representatives to the various Representative Governments, local, state, and federal. To ensure the future of the country and its representative government, the voters had to be a "Well-Informed" Electorate. As a number of Supreme Court decisions make clear, an institution privileged under the Constitution, the press, was the means by which the people and the Electorate were to be well-informed.
The threat to representative government in our times does not come from outside the United States, it comes from what we DO NOT see, hear, and read each day. The clear and present dangers to our form of government are not the internal radicals of the right or the left, they are the powerful private interests who control the media and through this control determine what we know of the world around us. Until recently, the private media power was unable to control the American people's knowledge of the world because of the diversity within the media power centers themselves. Now, with monopoly media power effectively within its grasp, only the private media's preferred vision of the world is let through, the rest is concealed through censorship, or manipulated through distortions and lies.
In 1919, Chief Justice Oliver Wendell Holmes, in a spirited dissent to a Supreme Court decision, invented the term a "marketplace of ideas." In his dissent, he wrote "that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out."
[He continued} "That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country." [250 U.S. 630]
Ever since then, some in our country, in company with Chief Justice Holmes and Justice Brandeis, have argued that the only way we can continue as a free country with a representative government is through the free trade of ideas, opinions and beliefs in free marketplace. Just as persistent and long-lived, but much more effectively, there are those who pay lip service to the concept of a marketplace of ideas, but who work to insure that their ideas are the only ones presented.
If future historians are still able to write of our times in a free expression of their research into the realities of our days, they will perhaps point to one Supreme Court decision as a prime example of the attempt to move the United States from a representative government of the people to a closed government run by private powerful corporations. The decision, written in 1974, was the Miami Herald vs Tornillo (418 U.S. 241) The decision itself, although it overeached, has some merit. It is not the decision, but the response and the rationale of the Court to the arguments of advocates for an enforceable right to access to the press that is important. Here the Court clearly distinguished between the rights of the people and the rights of the powerful, and then came down on the side of the powerful.
In a later Supreme Court decision, Miami Herald vs Tornillo was characterized as follows: "Tornillo affirmed an essential proposition: the First Amendment protects the editorial independence of the press. The right-of-reply statute at issue in Tornillo required any newspaper that assailed a political candidate's character to print, upon request by the candidate and without cost, the candidate's reply in equal space and prominence. Although the statute did not censor speech in the traditional sense - it only required newspapers to grant access to the messages of others - we found that it imposed an impermissible content-based burden on newspaper speech. Because the right of access at issue in Tornillo was triggered only when a newspaper elected to print matter critical of political candidates, it "exact[ed] a penalty on the basis of . . . content." 418 U.S., at 256 . We found, and continue to recognize, that right-of-reply statutes of this sort are an impermissible intrusion on newspapers' "editorial control and judgment." Id., at 258." [emphasis added]
The key point, as can be seen in the above paragraph is that a state law compelled a newspaper to allow the "right of reply" thus making the reply content-based -- the reply expressed opinions or beliefs contrary to those of the newspaper. The court struck down the state law on the basis that it violated the newspaper's First Amendment rights with "an impermissible intrusion on newspapers' 'editorial control and judgement.' "
However, in making its decision, the Court considered at length the positions of those who advocate an "enforceable right of access to the press. After a full statement of these views, the Court said:
However much validity may be found in these arguments, at each point the implementation of a remedy such as an enforceable right of access necessarily calls for some mechanism, either governmental or consensual.
It then proceeded to a citation of previous court decisions which in substance arrogated to the newspapers a position of power and privilege which seemed to have little to do with its decision that content-based "speech" cannot be imposed on a newspaper by a government under our Constitution.
The question of content-neutral speech is not considered in the decision.
"A Consensual Mechanism"
At this point, it is appropriate to examine the non-governmental consensual mechanism for an enforceable right of access to the press mentioned above. A government based mechanism is not Constitutional, or so we are told, how about a consensual solution? In the dictionary, the adjective consensual is defined as follows:
consensual -- existing or made by mutual consent without an act of writing or a written contract.
Presumably this says that a consensual mechanism for an enforceable right of access to the press can be arrived at through mutual consent between the advocates of such an enforceable right and the press itself. It is possible to wish these advocates the best of luck, but it is doubtful in the extreme that the press would willingly grant such an enforceable right.
Nonetheless, Miami Herald versus Tornillo is a valuable decision because it does include a poweful argument for an enforceable right of access to the press, and an equally powerful argument of why the press will do no such thing. The following quotations are from pages 247 to 254 of the decision with important phrases in bold red type.
An Enforceable Right of Access to the Press
[418 U.S. 247-248] The appellee and supporting advocates of an enforceable right of access to the press vigorously argue that 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.[418 U.S. 248-249] 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 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."[Remember, this was written 24 years ago.]
[418 U.S. 249-250] 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
concentration of control of outlets to inform the public.[418 U.S. 250] 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."This concentration of nationwide news organizations - like other large institutions - has grown increasingly remote from and unresponsive to the popular constituencies on which they depend and which depend on them." Report of the Task Force in Twentieth Century Fund Task Force Report for a National News Council, A Free and Responsive Press 4 (1973).
Appellee cites the report of the Commission on Freedom of the Press, chaired by Robert M. Hutchins, in which it was stated, as long ago as 1947, that "[t]he right of free
[418 U.S. 241, 251] public expression has . . . lost its earlier reality." Commission on Freedom of the Press, A Free and Responsible Press 15 (1947).
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.[That statement bears repeating . . . .
"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." ]
[418 U.S. 251-252] 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 rejecting the argument that the press is immune from the antitrust laws by virtue of the First Amendment, stated:
"The First Amendment, far from providing an argument against application of the Sherman Act, here provides powerful reasons to the contrary.
[Justice Frankfurter on the application of the Anti-Trust laws to the media and on the violation of the First Amendment through the private censorship of the news.]
[418 U.S. 252- 253] 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. 18Access advocates note that MR. JUSTICE DOUGLAS a decade ago expressed his deep concern regarding the effects of newspaper monopolies:
"Where one paper has a monopoly in an area, it seldom presents two sides of an issue. It too often hammers away on one ideological or political line using its monopoly position not to educate people, not to promote debate, but to inculcate in its readers one philosophy, one attitude - and to make money."
"The newspapers that give a variety of views and news that is not slanted or contrived are few indeed. And the problem promises to get worse . . . ." The Great Rights 124-125, 127 (E. Cahn ed. 1963).
[418 U.S. 253-254] 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," 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).
However much validity may be found in these arguments, at each point the implementation of a remedy such as an enforceable right of access necessarily calls for some mechanism, either governmental or consensual.
[emphasis added]The Unassailable Rights of the Media
[418 U.S. 253-254] If it is governmental coercion, this at once brings about a confrontation with the express provisions of the First Amendment and the
judicial gloss on that Amendment developed over the years. [emphasis added]The Court foresaw the problems relating to government-enforced access as early as its decision in Associated Press v. United States, supra. There it carefully contrasted the private "compulsion to print" called for by the Association's bylaws with the provisions of the District Court decree against appellants which "does not compel AP or its members to permit publication of anything which their `reason' tells them should not be published." 326 U.S., at 20 n. 18. In Branzburg v. Hayes, 408 U.S. 665, 681 (1972), we emphasized that the cases then before us "involve no intrusions upon speech or assembly, no prior restraint or restriction on what the press may publish, and no express or implied command that the press publish what it prefers to withhold." In Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 117 (1973), the plurality opinion as to Part III noted:
"The power of a privately owned newspaper to advance its own political, social, and economic views is bounded by only two factors: first, the acceptance of a sufficient number of readers - and hence advertisers - to assure financial success; and, second, the journalistic integrity of its editors and publishers."
[418 U.S. 256] We see that beginning with Associated Press, supra, the Court has expressed sensitivity as to whether a restriction or requirement constituted the compulsion exerted by government on a newspaper to print that which it would not otherwise print. The clear implication has been that any such a compulsion to publish that which "`reason' tells them should not be published" is unconstitutional. A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution and like many other virtues it cannot be legislated.
[418 U.S. 258] The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials - whether fair or unfair - constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time.
Accordingly, the judgment of the Supreme Court of Florida is reversed.
A Bitter Brew
Before we move on, we need to re-taste the bitter flavor of these words:
So what protects the rights of the American people from the rights and the power of the media? the "Reason" of the press, we are told; the "journalistic integrity" of editors and publishers, we are assured; the exercise of "editorial control and judgement," we are reassured again. The judicial gloss of the Court's recent interpretations of the First Amendment is glossy indeed, so shiny that it conceals the glaring imperfections of another Plessy v. Ferguson, or another Dred Scott decision.
For other Supreme Court decisions have held that under the First Amendment, the rights of the readers, the viewers, and the listeners of the media are paramount -- superior to -- the rights of private media power. They have also held that the First Amendment forbids the private censorship of the news. [395 U.S. 368, 386-390, 390-392]
The Problem of Private Media Power and Its Misuse
The problem the American people confront today is not one of an enforceable right to access to the press, it is a problem of media power in fewer and fewer private hands and the mis-use of that power. We are watching government power to keep it in check; we are ignoring private media power and the damage it is doing to our system of government.
It is a question of the American people's right to know.Over the last decade, there have been a number of court cases on the "right to carry" local media programming on cable broadcasting channels. In one of these, Turner v. FCC (1994), there is a clear-cut statement of the danger to the First Amendment by government interference with free expression:
"At the heart of the First Amendment lies the principle that each person should decide for him or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal. See Leathers v. Medlock, 499 U. S., at 449 (citing Cohen v. California, 403 U. S. 15, 24 (1971)); West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 638, 640-642 (1943). Government action that stifles speech on account of its message, or that requires the utterance of a particular message favored by the Government, contravenes this essential right. Laws of this sort pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion. These restrictions -rais[e] the specter that the Government may effectively drive certain ideas or view- points from the marketplace.- Simon & Schuster, Inc. v. Members of the New York State Crime Victims Bd., 502 U. S. ___, ___ (1991) (slip op., at 9)." [emphasis added]
With a few changes in wording, the same statement of danger to the First Amendment can be expressed where both the government or the private media power are equal threats:
At the heart of the First Amendment lies the principle that each person should decide for him or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal. Any action, by a government or a private interest, that stifles speech on account of its message, or that requires the utterance of a particular message favored by the Government or by the private interest contravenes this essential right. Laws or actions of this sort pose the inherent risk that the Government or the private interest seeks not to advance a legitimate regulatory or business goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion. These restrictions -raise the specter that the Government or the private interest may effectively drive certain ideas or viewpoints from the marketplace.
In Tornillo and in the "Must Carry" cases, the decisions turn, in large part, on the expression of
"content-based" material and on "content-neutral" material. In Turner v. FCC, these two terms are defined, along with the findings of law supporting these definitions:"
As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content-based. See, e.g., Burson v. Freeman, 504 U. S. ___, ___ (1992) (slip op., at 5) (-Whether individuals may exercise their free- speech rights near polling places depends entirely on whether their speech is related to a political campaign-); Boos v. Barry, 485 U. S. 312, 318-319 (1988) (plurality opinion) (whether municipal ordinance permits individu- als to -picket in front of a foreign embassy depends entirely upon whether their picket signs are critical of the foreign government or not-). By contrast, laws that confer benefits or impose burdens on speech without reference to the ideas or views expressed are in most instances content-neutral. See, e.g. City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 804 (1984) (ordinance prohibiting the posting of signs on public property -is neutral-indeed it is silent-concerning any speaker's point of view-); Heffron v. International Society for Krishna Consciousness, Inc., 452 U. S. 640, 649 (1981) (State Fair regulation requir- ing that sales and solicitations take place at designated locations -applies evenhandedly to all who wish to dis- tribute and sell written materials or to solicit funds-)."In Tornillo, the Court struck down a Florida law because the government forced a newspaper to print a content-based reply containing opinions and beliefs the paper had attacked. But what happens if the free expression of ideas and beliefs is not suppressed by government, but by the private media power? We see examples of this every day when a newspaper censors, distorts, or lies about ideas and beliefs contrary to the corporate interests it supports. In the case of content-based material, Tornillo and other Court decisions prevents us, as probably it should, from taking action against the media.
What are the defined rules with respect to content-neutral material? In United States v. O'Brien, 391 U.S. 367 (1968), the Court set forth the appropriate framework for reviewing a viewpoint-neutral regulation of this kind: [466 U.S. 789, 805]
"[A] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." Id., at 377."
But what happens if the private media power is censoring, distorting, and lying about viewpoint-or-content-neutral material which states no ideas or beliefs counter to those of the private media power, but which describes problems of local, regional, state or national concern to the American people? Or is the content-neutral description of these problems counter to the ideas and beliefs of the private media powers, and is that why they are being censored, distorted, and lied about? Whose First Amendment rights are paramount?
Under the First Amendment, the people are provided with the right to the Freedom of Expression (speech and the other means of media) and they are provided with the right to Redress of Grievances. If we can prove that private media power not only has a monopoly over the means of media communications, but is using that monopoly to censor, distort, and lie about content-neutral news of importance to the American people, then we have a clear-cut case of the violation of the people's First Amendment rights, and a violation that can be redressed with government sanctions.
My own experience has shown that censorship of content-based news and content-neutral news by the Mainstream Media can be demonstrated. But the actions of governments at any level in attempting to provide a right-to reply to the media will be struck down on the basis that the reply is therefore content-based and a violation of the media's First Amendement rights. An enforceable right to access to the press will have to go ahead on other grounds, possibly through anti-trust actions.
For there is larger issue here. If content-based and content-neutral news of importance to the American people is subject to prior restraint by private interests then the private censorship Justice Frankfurter spoke of exists. And within the context of the 1945 anti-trust decision against the Associated Press, the private censorship of news would appear to be a violation of our anti-trust laws. Perhaps this is the way to combat a media that suppresses some ideas and beliefs of the free market place while expressing its own ideas and beliefs.
But content-neutral news is something else, again. Content-neutral laws have nothing to say about the ideas and beliefs being expressed on signs or billboard or by other means, they merely state as a matter of permissible public policy where and where not and when and when this free expression can be used. Accordingly, the content-neutral laws are very limited in their application and scope. When content-neutral news of importance to the American people is subject to prior restraint by the private media interests, then clearly the First Amendment rights of the American people are being violated, for the 1969 Supreme Court decision in Red Lion held:
that under the First Amendment, the rights of the viewers and the listeners of the media are paramount -- superior to -- the rights of private media power. They have also held that the First Amendment forbids the private censorship of the news. [Red Lion 395 U.S. 368, 386-390, 390-392]
It is equally clear in reading any of the Supreme Court decisions on the First Amendment rights of newspapers, except Miami Herald v. Tornillo, that the First Amendment rights of the readers are paramount -- superior to the rights of the private media power.
A Call to Action
The first step in re-establishing the rights of the people over the private media power is to determine if a
pattern of censorship exists in the United States whereby content-based or content-neutral news is being censored by the media. I have located one or two cases of locally reported news of national interest being censored or distorted at the national level before it is distributed via the news services to regional and local newspapers. In some cases, at the regional or local level, the news is censored again, usually through truncation, to say what the owners of the newspapers want said.It is absolutely essential for Americans across the country to begin reading their newspapers very critically. If you do this, you will find that news with little or no content of national importance is being used to push important national or world news off the front pages and into the inside pages of the first or A section of the papers set aside for national and world news. If you then look into these A sections, you will see how the space allocated for news has been drastically reduced to make room for ads. This makes rooms for ads, but its also diminishes the amount of room left for news. The news is then carefully selected to avoid issues of national importance to the American people -- health care, education, and so on. When the issues of national importance are addressed in these pages, there is a very subtle "spin" to the text. "Government is bad, incompetent, wasteful, etc." "Corporate power is good, benign, brings money into the area, etc." Lip service may be paid to free-enterprise capitalism, but predatory capitalism, crony-capitalism, and monopoly capitalism are ignored or simply looked at with a raised eyebrow.
It is absolutely essential for Americans across the country to begin exchanging information on the censorship of
content-neutral news of national importance. I can tell you from personal history this is not easy to do, for "we do not know what we do not know." One of the places to look are in the local news coverage of corporate criminality. You will find that corporate crimes are reported in the business section of the paper and the stories are usually buried on the inside pages and are sometimes at the bottom of the stock market pages. Look for the local coverage of cronyism between national government agencies and private interests. The present story of the criminal collusion between employees of the Department of Energy and the private contractors running nuclear plants, clean-up efforts and so on, is being buried in the national coverage by the AP, the Washington Post and the New York Times.Yet the AP, the Washington Post, the New York Times, and some of the other "national" newspapers carry stories with important content. But unless you read those papers or the AP on line, you will miss that important content because the local media do not want their readers to read it and to begin thinking. Unless of course, the stories contain unsubstantiated allegations against a president with whom the Mainstream Media is in disagreement. To prevent the thoughtful reading and the comparison of political positions on health care, social security, and the like, news stories on these issues are truncated and neutered down locally unless they have good words to say about (usually) a Republican candidate.
Begin to write E-mail after E-mail to your local newspaper, telling them you have caught on to the game, and are asking them why they are censoring the news. Mention the word "monopoly" in your E-mails and throw in a few words each time on the violation of the anti-trust laws. In short, appeal to their enlightened self-interest.
More important, exchange this information with other Americans across the country so that we can put together the story of the pattern of censorship that does exist so we can then ask for the Redress of our Grievances under our First Amendment rights.
We cannot depend on the Kindness of Strangers. We have a country to protect.