University of Pennsylvania Law School Public law and Legal Theory Research Paper Series Research Paper No 16 Fall 2002 Media Concentration Giving up on democracy C. Edwin baker University of Florida Law Review, Forthcoming This paper can be downloaded without charge from the Social Science Research Network ElectronicPapercollectionhttp://ssrn.com/abstractid=347342
University of Pennsylvania Law School Public Law and Legal Theory Research Paper Series Research Paper No. 16 Fall 2002 Media Concentration: Giving Up on Democracy C. Edwin Baker This paper can be downloaded without charge from the Social Science Research Network Electronic Paper collection: http://ssrn.com/abstract_id=347342 University of Florida Law Review, Forthcoming
MEDIA CONCENTRATION: GIVING UP ON DEMOCRACY PROFESSOR C. EDWIN BAKER November 6. 2002 baker@law. upenn.edu and 215-898-7419 or 212-533-9435 MEDIA CONCENTRATION: TABLE OF CONTENTS . CONSTITUTIONAL FRAMEWORK 6 IL CONCENTRATION POLICY A. Antitrust law and the media B. Media-specific rules IIL OWNERSHIP AS NOT A PROBLEM 56 A Market Determined Performance B Ownership is Diverse C Sociology of Production- Journalistically Determined Content IV. PROBLEMS POSED BY A. Six Problems and a doubtful benefit 105 B Ownership to Serve a Democracy: Diversity of Ownership 125 V. CONCLUSION: IMPLICATIONS FOR POLICY 128
MEDIA CONCENTRATION: GIVING UP ON DEMOCRACY PROFESSOR C. EDWIN BAKER / November 6, 2002 ebaker@law.upenn.edu and 215-898-7419 or 212-533-9435 MEDIA CONCENTRATION: TABLE OF CONTENTS I. CONSTITUTIONAL FRAMEWORK.................................................................................................6 II. CONCENTRATION POLICY.......................................................................................................26 A. Antitrust law and the Media............................................................................................ 28 B. Media-specific rules. ...................................................................................................... 36 III. OWNERSHIP AS NOT A PROBLEM...........................................................................................56 A. Market Determined Performance.................................................................................... 60 B. Ownership is Diverse...................................................................................................... 74 C. Sociology of Production - Journalistically Determined Content......................................... 99 IV. PROBLEMS POSED BY OWNERSHIP......................................................................................104 A. Six Problems and a Doubtful Benefit............................................................................ 105 B. Ownership to Serve a Democracy: Diversity of Ownership............................................ 125 V. CONCLUSION: IMPLICATIONS FOR POLICY...........................................................................128
MEDIA CONCENTRATION: GIVING UP ON DEMOCRACY During the twentieth century, virtually all western democracies saw growing media concentration as a threat to freedom of the press and to democracy. Most adopted laws to support press diversity, whether through competition(antitrust and media specific)laws or subsidy arrangements, often subsidies targeted specifically to support weaker competing media. Historically, it has been the same in the United States. A famous media journalist and press critic, A.J. Liebling, long ago quipped: freedom of the press belongs to those who own one. Liebling's quip makes ownership central. And that has been the general view. Although very cautious about government intervention, the single most important, semi-official study of the mass media in U.S. history, the Hutchins Commission Report of I wish to thank Yochai Benkler, Harry First, Eleanor Fox, and Michael Madow for suggestions and advice. Portions of this article were presented to the Communications Law Section of the aals in und Angebotsvielfalt zwischen Kartll- und Rundfunkrecht(2002)(conference proceeding O New Orleans(2002)and a preliminary version is included in Uwe Blaurock(ed ) Medienkonzentration Peter Humphreys, Mass Media and Media Policy in Western Europe 66-110 (1996) 6A.J. Liebling, The Wayward Pressman 265(1947)(ck]. In slightly different words-"e"freedom of the press is guaranteed only to those who own one-the same remark is quoted from later sources E.g.,A.J. Liebling, The Press 32(2 rev. ed, 1975) The Commission on Freedom of the Press, A Free and Responsible Press: A General Report on Mass Communication: Newspapers. Radio. Motion Pictures. Magazines and Books 5, 83-86(Chicago: U of Chicago Press, 1947) Baker-11/06/02
Baker - 11/06/02 - 1 - MEDIA CONCENTRATION: GIVING UP ON DEMOCRACY1 During the twentieth century, virtually all western democracies saw growing media concentration as a threat to freedom of the press and to democracy. Most adopted laws to support press diversity, whether through competition (antitrust and media specific) laws or subsidy arrangements, often subsidies targeted specifically to support weaker competing media.2 Historically, it has been the same in the United States. A famous media journalist and press critic, A.J. Liebling, long ago quipped: “freedom of the press belongs to those who own one.”3 Liebling’s quip makes ownership central. And that has been the general view. Although very cautious about government intervention,4 the single most important, semi-official study of the mass media in U.S. history, the Hutchins Commission Report of 1 I wish to thank Yochai Benkler, Harry First, Eleanor Fox, and Michael Madow for suggestions and advice. Portions of this article were presented to the Communications Law Section of the AALS in New Orleans (2002) and a preliminary version is included in Uwe Blaurock (ed.), Medienkonzentration und Angebotsvielfalt zwischen Kartell- und Rundfunkrecht (2002) (conference proceedings). 2 Peter Humphreys, Mass Media and Media Policy in Western Europe 66-110 (1996). 3 A. J. Liebling, The Wayward Pressman 265 (1947) [ck]. In slightly different words – “”freedom of the press is guaranteed only to those who own one” – the same remark is quoted from later sources. E.g., A. J. Liebling, The Press 32 (2nd rev. ed, 1975). 4 The Commission on Freedom of the Press, A Free and Responsible Press: A General Report on Mass Communication: Newspapers, Radio, Motion Pictures, Magazines, and Books 5, 83-86 (Chicago: U. of Chicago Press, 1947)
1947,saw the problem of concentration-the decreased proportion of the people who can express their opinions and ideas through the press"-as one of three factors threatening freedom of the press They accepted the reality that modern economic forces drive inexorably toward media concentraion Even then, most American cities were coming to face daily newspaper monopolies-a trend that has since increased, leaving only a handful of American cities with separately owned and operated daily papers. One way to understand the Commission's central recommendations concerning the need for a socially responsible press" is that it tried to make the best of a bad situation Id. at 1. See also, id at 17, 37-44. Although clearly focused on dangers of media concentration, Zechariah Chafee, Jr, Government and Mass Communications. A Report from the Commission on Freedom of the Press, v. 2, 537-677, Chafee was very skeptical of use of law to restrict it. For example hough favoring" a very sparing use of the Antitrust laws against communications industries, id. at 674 Chafee emphasized the little the antitrust laws could do, id at 653, 676-77, and the dangers in their use ld.at666-74 'Cf. id. at 617("It is obvious, then, that bigness in the press is here to stay whether we like it or not' In 1910, with much smaller populations, 689 American cities or towns had competing daily newspapers. In 1940, shortly before the Hutchins Commission's Report, the number had fallen to 181 By 2002, the number was 14, with another 12 cities having JOAs, that is cities with two or more papers that are required to be editorially independent but operated jointly as one business. See C. Edwin Baker Advertising and a Democratic Press 16, 146 n34(1994); Facts About Newspapers 2001 http://www.naa.org/info/factso1.htmlWaltBraschTheMediaMonolithSynergizingAmerica Counterpunchathttp://www.counterpunch.org/brachmedia.html Baker-11/06/02
Baker - 11/06/02 - 2 - 1947,5 saw the problem of concentration – “the decreased proportion of the people who can express their opinions and ideas through the press” – as one of three factors threatening freedom of the press.6 They accepted the reality that modern economic forces drive inexorably toward media concentration.7 Even then, most American cities were coming to face daily newspaper monopolies – a trend that has since increased, leaving only a handful of American cities with separately owned and operated daily papers.8 One way to understand the Commission’s central recommendations concerning the need for a “socially responsible press” is that it tried to make the best of a bad situation. 5 Id. 6 Id. at 1. See also, id at 17, 37-44. Although clearly focused on dangers of media concentration, Zechariah Chafee, Jr., Government and Mass Communications, A Report from the Commission on Freedom of the Press, v. 2, 537-677, Chafee was very skeptical of use of law to restrict it. For example, though favoring “a very sparing use of the Antitrust laws against communications industries,” id. at 674, Chafee emphasized the little the antitrust laws could do, id. at 653, 676-77, and the dangers in their use. Id. at 666-74. 7 Cf. id. at 617 (“It is obvious, then, that bigness in the press is here to stay, whether we like it or not”). 8 In 1910, with much smaller populations, 689 American cities or towns had competing daily newspapers. In 1940, shortly before the Hutchins Commission’s Report, the number had fallen to 181. By 2002, the number was 14, with another 12 cities having JOAs, that is cities with two or more papers that are required to be editorially independent but operated jointly as one business. See C. Edwin Baker, Advertising and a Democratic Press 16, 146 n34 (1994); Facts About Newspapers 2001, http://www.naa.org/info/facts01.html; Walt Brasch, The Media Monolith, Synergizing America, Counterpunch at http://www.counterpunch.org/brachmedia.html
The media is a huge non-democratically organized force that has major power over politics public discourse, and culture. As such, it is not a surprise that media concentration receives great attention. Just as in Europe where pressure for governmental responses came mostly from Left and Centrist political parties, trade unions, journalists'associations and consumer groups, many Americans, especially on the left and center but many conservatives as well, see media concentration as a problem and dispersed ownership as crucial for democracy. Legal policy long reflected that view Nevertheless, the last twenty years have seen a remarkable change in the legal treatment of media concentration. This Article aims to describe and evaluate that change 9 Humphreys, supra note 2, at 94 Io The literature is filled with both popular and scholarly discussions. Robert Mcchesney is possibly the best known leftist currently emphasizing the concern. See, e.g., Edward S. Herman robert w McChesney, The global Media: The new Missionaries of Corporate Capitalism(1997). More centrist is Ben H Bagdikian, Media Monopolies. 6 ed(2000). a partial dissent might describe the central problem as involving market forces generally as the main determinant of the media content, not the pecifics of ownership. See, e.g., Robert Brill Horwitz, Communication and Democratic Reform in South africa(2001). Objections to the distorting effects of commercialism was, for example, the basis of European commitment to public broadcasting. These most courts find a public broadcasting monopoly to be consistent with broadcasting freedom and some countries view the existence and adequate support of public broadcasting, at least in some contexts, to be constitutionally required. Eric Barendt Broadcasting Law: A Comparative Study 57-59, 69-70, 74(1993). Obviously, the same critic can object to concentrated ownership or market forces or both Baker-11/06/02
Baker - 11/06/02 - 3 - The media is a huge non-democratically organized force that has major power over politics, public discourse, and culture. As such, it is not a surprise that media concentration receives great attention. Just as in Europe where pressure for governmental responses came mostly from Left and Centrist political parties, trade unions, journalists’ associations and consumer groups,9 many Americans, especially on the left and center but many conservatives as well, see media concentration as a problem and dispersed ownership as crucial for democracy.10 Legal policy long reflected that view. Nevertheless, the last twenty years have seen a remarkable change in the legal treatment of media concentration. This Article aims to describe and evaluate that change. 9 Humphreys, supra note 2, at 94. 10 The literature is filled with both popular and scholarly discussions. Robert McChesney is possibly the best known leftist currently emphasizing the concern. See, e.g., Edward S. Herman & Robert W. McChesney, The Global Media: The new Missionaries of Corporate Capitalism (1997). More centrist is Ben H. Bagdikian, Media Monopolies, 6th ed. (2000). A partial dissent might describe the central problem as involving market forces generally as the main determinant of the media content, not the specifics of ownership. See, e.g., Robert Brill Horwitz, Communication and Democratic Reform in South Africa (2001). Objections to the distorting effects of commercialism was, for example, the basis of European commitment to public broadcasting. These most courts find a public broadcasting monopoly to be consistent with broadcasting freedom and some countries view the existence and adequate support of public broadcasting, at least in some contexts, to be constitutionally required. Eric Barendt, Broadcasting Law: A Comparative Study 57-59, 69-70, 74 (1993). Obviously, the same critic can object to concentrated ownership or market forces or both