Whose First Amendment?

With the rise of so-called reality television in recent years (proving that
truth is tawdrier than fiction, too), it might well be asked what all of
the TV writers are up to these days. Some, it would seem, have lent their fertile
imaginations to a TV-industry lobbying and litigation campaign that, like the
medium itself, often strains credulity.

How else to explain industry's argument that the modest federal caps on
ownership of stations and other media outlets violate corporate free-speech
rights? Never mind the public's right to "the widest possible dissemination of
information from diverse and antagonistic sources," in the words of the Supreme
Court, which in 1945 deemed that such a free flow of information is "essential"
to our welfare. That principle, apparently, is now to be superseded by a
corporation's right to corner whatever markets it can.

This raises the specter that other media will follow the path of radio and
publishing toward oligopoly. Five conglomerates command 80 percent of all book
sales, while a mere two radio giants--with well over a thousand stations
between them--control more than a third of all radio advertising revenue
nationally, and up to 90 percent in some markets. Even a cursory tour up and down
the radio dial reveals the homogenization that has leveled that medium--a
sobering portent of what may soon become television's fate.

"Radio is the model," warns Reed Hundt, former chairman of the Federal
Communications Commission (FCC). "That's the harbinger for what's going to happen
to TV." And if that sounds implausible, it shouldn't. For once the safeguards
preventing further consolidation and sale of broadcast, cable, and newspaper
empires are dismantled entirely--and they are currently under court challenge and
FCC review--the "Let's Make a Deal" live tour will be off to a rousing start.

Wave the Flag, Waive the Regs

If any additional evidence of life imitating entertainment is needed, look
no further than Mel Karmazin, president of CBS's parent, Viacom, whose company's
profits will merely match last year's $5 billion rather than reaching its
projected $5.6 billion. In a recent stand-up routine at a Goldman Sachs investor
briefing, Karmazin suggested that given the current state of war (with media
advertising revenues dropping faster than bombs over Afghanistan), his industry
merits special consideration from Washington regulators. Such consideration would
include relaxing the restrictions that bar companies such as his from owning
stations that reach more than 35 percent of the viewing public (or from owning a
TV station and a cable system, or a TV station and a newspaper, in the same
community). Ever the optimist, Karmazin not only expressed confidence that
Washington would accede to these demands but also managed to find a silver lining
in the tragic events of September 11, citing the depressed media stock prices
that will allow Viacom to scoop up new acquisitions at bargain-basement rates. If
it wasn't exactly "What's good for Viacom is good for the country," Karmazin's
remarks nonetheless made clear that his conception of the public interest
revolves narrowly around the interests of Viacom shareholders.

And so it goes at the corner of Hollywood Boulevard and Pennsylvania Avenue
these days, a time when the terrorist attacks have become a convenient leitmotiv
to the media titans' expansionist plans. It's a not-so-subtle quid pro quo--we'll
wave the flag, you waive the regulations--that couldn't ask for a cozier setting
than contemporary Washington. After lining the campaign coffers of both sides
of the aisle (contributing more than $131 million in the 2000 election cycle
alone), the media and technology giants are now answering the government's call
for more patriotic, responsible fare in the ongoing war against terrorism. And
the conglomerate soldiers couldn't have asked for a kinder, gentler drill
sergeant over at the FCC than they have in the person of Michael Powell, son of
Secretary of State Colin Powell. The media companies haven't had such a friend in
Washington since Ronald Reagan appointed Mark Fowler as FCC chairman. (It was
Fowler who deflated expectations all around, calling television a mere "toaster
with pictures" that didn't really require regulatory oversight and defining the
public interest as "whatever interests the public.")

Seemingly bent on trumping Fowler and becoming the James Watt of the
electronic environment, Powell was named the new administration's FCC chairman in
January of this year (having been one of President Clinton's Republican
appointees to the commission three years earlier). With some clever writing of
his own, the 37-year-old Powell is clearly one of the rising young Republican
stars in Washington. Eager to distance himself from his predecessor, William
Kennard (also black, but whose maddeningly cautious FCC stewardship now appears
almost radical in retrospect), Powell dismissed the "digital divide" that
separates minority households and poorer neighborhoods from the fruits of the
technology revolution as little more than a "Mercedes divide": "I would like to
have one," he scoffed. "I can't afford one." Powell has made clear his misgivings
about the FCC's traditional regulatory function. He discounted the
broadcast-ownership cap as one based on "a romantic notion... an emotional one,"
for example, suggesting that such limits on corporate market size "are almost
always poorly calibrated." According to Powell, "there is something offensive to
First Amendment values about that limitation."

Powell took no such offense, curiously enough, when his agency slapped a
$7,000 fine on a Colorado radio station for playing an expurgated version of
an off-color Eminem rap song. That little dent on the Bill of Rights was
presumably designed to curry favor with more conservative Republicans, whose
strict-constructionist constitutional scruples never extended to either political
protest or artistic license. Chairman Powell's explanation was
uncharacteristically simple: "I don't believe [the First Amendment] is some
cynical 'Get out of jail free' card for broadcasters."

But what's truly cynical is Powell's apparent complicity in idly watching as a
handful of mass-media giants invoke the First Amendment in an effort to gain even
greater sway over the airwaves. First recognized by the Supreme Court in 1976,
the free-speech rights of corporations were traditionally accorded less
protection than traditional speech. But through court challenges and extensive
lobbying campaigns, the First Amendment has gradually assumed its place, along
with tax credits and government contracts, as a key weapon in the corporate
arsenal. "Increasingly," notes AOL Time Warner CEO Gerald Levin, who should
certainly know about such things, "through the help of the courts--that is, the
reach of the First Amendment--we'll have opportunities." And that, of course,
is a euphemism for the enormous payoff that companies such as AOL Time Warner
will reap from their constitutional sleight of hand. First they succeeded in
stretching the concept of commercial speech to include virtually any transaction,
however pedestrian or crass, and then they managed to elevate such putative
"speech" over the public's right to choose from the broadest possible range of

"Corporations are artificial entities," observes Andrew Schwartzman, president
of the Media Access Project and a longtime public-interest advocate. "Yet they
are being afforded speech rights as if they were living, breathing, voting
citizens." Of course, they do have living, breathing, free-spending lobbyists.
Under the First Amendment, Schwartzman explains, it's reasonable to argue that
the government may not block companies from expressing viewpoints that it finds
offensive. But it's unreasonable to interpret the First Amendment as blocking
government regulations designed to protect the range of voices that can be heard.
Courts taking that view, notes Hundt, "defeat the very goal of the First
Amendment by putting the free-speech rights of powerful companies ahead of the
free-speech rights of everyone else."

Time Warner Entertainment (TWE) attempted as much in its recent oral arguments
before the U.S. Court of Appeals in a case challenging the FCC's broadcast-cable
cross-ownership rule. TWE attacked the policy (which, in the interest of
preserving a measure of diversity, prevents a company from owning a television
station and a cable system in the same market) as a "ban on speech." And with
logic that effectively stood the First Amendment on its head, the company went on
to chastise the FCC for daring to promote "speech of a particular content: news
and public affairs programming with regard to local issues and events." That was
a patent effort by the government, or so Time Warner claimed, "to manipulate

In support of their rereading of the First Amendment, media
moguls are apt to point to the emerging new media system. With its seemingly
unlimited sources of online information and opinion, and with the broadband
revolution nigh upon us, we are supposedly relieved of the obligation to monitor
the concentration of power and control in the old media. It's a handy brush-off
of responsibility, made all the more deceitful by the media giants' designs on
the Internet, too. The vast majority of Americans, in any case, still get their
news from television and the daily newspaper, and that's not likely to change
anytime soon.

"The recent explosion of media and communications technology was expected to
deliver consumers a brave new world of competition across all telecommunications
and media markets," explained the Consumers Union's Gene Kimmelman in
congressional testimony last July. "There is no doubt that today, consumers have
the option of receiving news, information, entertainment from a far greater
variety of media--newspapers, radio, television, the Internet--than ever before.
Unfortunately," Kimmelman told the lawmakers, "this growth in variety has not
been accompanied by a comparable growth of independent, diversely owned
competitive communications services and media voices."

The Internet may yet provide a viable platform for such diversity and
competition, fulfilling its potential to be the "most participatory form of mass
speech yet developed," as the Supreme Court once described it. But right now it
seems headed in quite the opposite direction, with AOL Time Warner controlling
fully a third of all user time spent online and Microsoft and Yahoo angling to
bring the total share of the top three up to 50 percent or more. As New York
columnist Frank Rich once asked: "If you believe that the Internet is
the greatest explosion of free expression and cultural resources of the past
century, what happens when it is merchandised as a mass-market product by the
biggest corporations in history?"

The current spate of deregulation in Washington, unfortunately, will only
hasten this merchandising trend, with the broadband Internet increasingly falling
into cable's closed marketplace of subscription, pay-per-view, and premium
services. "If our only media policy is enthusiastically pro-consolidation," the
Consumer Federation of America's Mark Cooper has observed, "it is unlikely that
this new technology will ever achieve its real potential." The battle for a more
democratic media in the digital age is not over, certainly, but the political and
legal challenge is daunting.