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The New Media Order


The Federal Trade Commission has the solution for what ails the newspaper industry — a series of workshops:

Extra! Extra! FTC Announces Workshop: ‘Can News Media Survive the Internet Age? Competition, Consumer Protection, and First Amendment Perspectives’

[ . . . ]

“Many industries have experienced transitions to new business models in response to new forms of competition on the Internet, and consumers generally have benefitted in the process,” FTC Chairman Jon Leibowitz explained. “But the news business may be different because of the First Amendment values at stake. Whether we get our news from ink on paper, TV, radio, laptops, or mobile devices, we need a strong news industry for our democracy to thrive. Bringing together competition, consumer protection, and First Amendment perspectives can help all of us understand how best to serve Americans’ interests given the new realities affecting news organizations.”

Reason editor Matt Welch is skeptical about the FTC’s ability to “help” old media cope with new media:

Let’s see, I’m an avid consumer of news, I’m happier than an entire clambake at the “business practices” that have helped bring me literally millions of news sources at my fingertips…and now the commission that was created 95 years ago so that Progressive Era presidents could bust up trusts and monopolies is now holding hearings to lament that a long-monopolistic industry has screwed its own pooch? JUST. STOP. IT.

Ah, but the FTC can’t help itself. The Commission may be populated with talentless political hacks, but they can always sense an opportunity to grab more power for themselves. And that’s what Leibowitz plans to do. “Bringing together competition, consumer protection, and First Amendment perspectives” — and note he listed the amendment last — means the FTC plans to decide how consumers will receive information in the post-newspaper era.

The foundation for this was laid a few years ago when the Justice Department ordered two bankrupt newspapers to reopen in order to increase competition in the newly-discovered “alternative newsweekly” market. When asked (by me) to reconcile the First Amendment with a government mandate to publish, the DOJ’s Antitrust Division didn’t miss a beat:

The First Amendment, far from providing an argument against application of the Sherman Act, here provides powerful reasons to the contrary. That 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 nongovernmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom. Freedom to publish means freedom for all and not for some. Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not. Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests. The First Amendment affords not the slightest support for the contention that a combination to restrain trade in news and views has any constitutional immunity.

Again, for clarity’s sake, when the DOJ says “restraint,” it means a private business exercising control over its own property. This statement came in response to a decision by two newspaper chains to shutter failed publications. Nobody’s rights were violated. The DOJ’s argument rested on the notion that readers of niche publications have a constitutionally-guaranteed right to receive those publications, even when it’s not financially profitable for the publishers. The First Amendment, as re-imagined by the DOJ and FTC, is actually an affirmative grant of state power that allows unelected lawyers the right to seize control of publications if they deem it in the “public interest.”

To that end, the DOJ is currently pursuing litigation against two West Virginia newspapers, who have been operating for decades under a joint operating agreement. The DOJ wants to dissolve the agreement because it is dissatisfied with the editorial quality of one of the papers, the Daily Mail. The Newspaper Association of America, in a court filing, explained why that would be a bad idea:

The government cannot properly base a claim on its negative evaluation of the Daily Mail’s content. Nor could it properly seek a judicial decree that more newspaper editorial and news content be published in Charleston then currently exists. No branch of government in this Nation is entitled to determine the type or volume of the editorial and reportorial content of newspapers.

Editorial quality is in the eye of the beholder. One need only contrast 60 Minutes with Entertainment Tonight to see the subjectivity involved. In the field of newspapers, different publications may take vastly different approaches. The New York Daily News is not the same type of paper as the Miami Herald, the New York Times or USA Today, to arbitrarily pick a few. Which newspaper would the DOJ most want the Daily Mail to resemble and have the Court require?

Of course, when the government already decides what cars should be made, what terms banks should offer for loans, and what types of health care people should receive, it’s not exactly a huge intellectual jump to tell newspapers what type of editorial and news content to offer. And why stop with newspapers? Even before its new workshop series, the FTC is gearing up to regulate blogs. After all, it wouldn’t be fair for the FTC to control one form of media and not the others.

Skip Oliva is a writer and paralegal in Virginia (skip@skipoliva.com).

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