This recent change has had three fronts. Most overtly, there has been a dramatic reduction in legal restrictions on ownership concentration, especially related to broadcast, cable, and media cross- ownership restrictions. Second, there has been a change, often unarticulated, in the conception of appropriate criteria or standards with which to identify objectionable concentration. Something resembling anti-trust standards that look solely at market power to raise prices above competitive levels has replaced previously invoked democratic concerns. Finally, within Constitutional doctrine especially in the lower courts, there has been an unarticulated change from viewing the press as instrumentally-valued entities that are protected for how they serve people's need for a robust communication order to viewing media entities as being rights-bearing units in their own right. This changed conception changes in turn the view of media structural regulation from being an often appropriate means to serve First Amendment interests in a free and diverse communications order to being a presumptive interference with corporate entities First Amendment rights Parts I (related to constitutional doctrine) and Il(related to legal regulation )of this Article will critically describe these shifts, including the underlying assumptions that support them. These Parts provides the empirical basis for the essays title. My evaluative claim is that the legal order is giving up on democracy in two profoundly troubling ways. First, policy makers, especially in the FCC, have been abandoning their earlier concerns with how media ownership can be structured to further a democratic society and are now apparently concemed only with making the media more responsive to demands for commodities. Second, judicial doctrine evidences a declining willingness to accept legislative structural policies in the media area, in a sense going back to a Lochner-era, unreflective Baker-11/06/02
Baker - 11/06/02 - 4 - This recent change has had three fronts. Most overtly, there has been a dramatic reduction in legal restrictions on ownership concentration, especially related to broadcast, cable, and media crossownership restrictions. Second, there has been a change, often unarticulated, in the conception of appropriate criteria or standards with which to identify objectionable concentration. Something resembling anti-trust standards that look solely at market power to raise prices above competitive levels has replaced previously invoked democratic concerns. Finally, within Constitutional doctrine, especially in the lower courts, there has been an unarticulated change from viewing the press as instrumentally-valued entities that are protected for how they serve people’s need for a robust communication order to viewing media entities as being rights-bearing units in their own right. This changed conception changes in turn the view of media structural regulation from being an often appropriate means to serve First Amendment interests in a free and diverse communications order to being a presumptive interference with corporate entities’ First Amendment rights. Parts I (related to constitutional doctrine) and II (related to legal regulation) of this Article will critically describe these shifts, including the underlying assumptions that support them. These Parts provides the empirical basis for the Essay’s title. My evaluative claim is that the legal order is giving up on democracy in two profoundly troubling ways. First, policy makers, especially in the FCC, have been abandoning their earlier concerns with how media ownership can be structured to further a democratic society and are now apparently concerned only with making the media more responsive to demands for commodities. Second, judicial doctrine evidences a declining willingness to accept legislative structural policies in the media area, in a sense going back to a Lochner-era, unreflective
notion of existing property distributions as a natural baseline. This change essentially replaces democracy, which has authority to make structural policy to further people's values, with the market as a measure of value. Both in administrative realms and implicitly in lower court constitutional decisions, there has been a fundamental shift away from the notion that the government aim should be to promote a democratic communications order. The new attitude is that the only goal of regulation should be to assure efficient production of commodified media products within competitive markets My criticism would be inapt if ownership concentration is not a problem. Thus, Part Ill describes but then rejects arguments that the concern with ownership and undue concentration is either misguided or, at least, vastly overstated. Unless those arguments are rightly rejected, antitrust law as currently practiced may embody the only needed limits on ownership. Finally, Part IV catalogues some more specific objections to mass media concentration and suggests elements of more desirable policies. Both Parts Ill and IV assert that the special democratic and cultural role of the media, as well as specific features of the market for media goods, explain why even a desirable recasting of antitrust law to include consideration of non-economic factors would be insufficient for optimal media ownership regulation and argues for special media-related ownership policies I Maurice E. Stucke Allen P Runes, Antitrust and the Marketplace of Ideas, 69 Antitrust LJ, 249 (2001) Baker-11/06/02
Baker - 11/06/02 - 5 - notion of existing property distributions as a natural baseline. This change essentially replaces democracy, which has authority to make structural policy to further people’s values, with the market as a measure of value. Both in administrative realms and implicitly in lower court constitutional decisions, there has been a fundamental shift away from the notion that the government aim should be to promote a democratic communications order. The new attitude is that the only goal of regulation should be to assure efficient production of commodified media products within competitive markets. My criticism would be inapt if ownership concentration is not a problem. Thus, Part III describes but then rejects arguments that the concern with ownership and undue concentration is either misguided or, at least, vastly overstated. Unless those arguments are rightly rejected, antitrust law as currently practiced may embody the only needed limits on ownership. Finally, Part IV catalogues some more specific objections to mass media concentration and suggests elements of more desirable policies. Both Parts III and IV assert that the special democratic and cultural role of the media, as well as specific features of the market for media goods, explain why even a desirable recasting of antitrust law to include consideration of “non-economic” factors11 would be insufficient for optimal media ownership regulation and argues for special media-related ownership policies. 11 Maurice E. Stucke & Allen P. Grunes, Antitrust and the Marketplace of Ideas, 69 Antitrust L.J. 249 (2001)
I CONSTITUTIONAL FRAMEWORK Legal regulation of concentration consists in two parallel but intersecting stories: the legal regime adopted by Congress or state legislative bodies and expanded by administrative agencies and the Constitutional standards that this regime must meet. Change could occur in either the regime favored by policy makers or the Constitutional standards formulated by the courts. In fact, change has occurred in both dimensions. Although as will become clear, holding the two separate is somewhat artificial,here I will consider the situation as it appears constitutionally and then in Part II look at development within the actual legal regime The First Amendment might have at least four possible relations to media concentration Arranged in order of increasing opposition to concentrated media, the First Amendment might: ( i require govemment to limit concentration, (ii prohibit government from affirmatively promoting concentration,(ili) leave government relatively free to choose structural media policies in general or at 12 An illustration might be the invalidation by lower courts as unconstitutional a statutory ban on cros ownership of telephone company and cable systems in their local operating area, and the dismissal of an appeal of this holding as moot due to Congressional action that on policy grounds eliminated the challenged restrictions. United States v. Chesapeake Potomac Telephone Co., 516 U.S. 415(1996) (vacating lower rulings after passage of the Telecommunications Act of 1996) Baker-11/06/02
Baker - 11/06/02 - 6 - I. CONSTITUTIONAL FRAMEWORK Legal regulation of concentration consists in two parallel but intersecting stories: the legal regime adopted by Congress or state legislative bodies and expanded by administrative agencies and the Constitutional standards that this regime must meet. Change could occur in either the regime favored by policy makers or the Constitutional standards formulated by the courts. In fact, change has occurred in both dimensions. Although as will become clear, holding the two separate is somewhat artificial,12 here I will consider the situation as it appears constitutionally and then in Part II look at development within the actual legal regime. The First Amendment might have at least four possible relations to media concentration. Arranged in order of increasing opposition to concentrated media, the First Amendment might: (i) require government to limit concentration, (ii) prohibit government from affirmatively promoting concentration, (iii) leave government relatively free to choose structural media policies in general or at 12 An illustration might be the invalidation by lower courts as unconstitutional a statutory ban on cross ownership of telephone company and cable systems in their local operating area, and the dismissal of an appeal of this holding as moot due to Congressional action that on policy grounds eliminated the challenged restrictions. United States v. Chesapeake & Potomac Telephone Co., 516 U.S. 415 (1996) (vacating lower rulings after passage of the Telecommunications Act of 1996)
least in respect to concentration, or, finally, (iv) seriously limit governments authority to engage in tructural regulation including its power to restrict concentration. My claim here will be that the Supreme Court holdings have been most consistent with the third possibility- leaving the government relatively free to engage in structural regulation. However with encouragement by the Supreme Court's recent articulation of a new doctrinal approach and with a new, usually unarticulated conception of media claimants status, lower courts have increasingly adopted the fourth -constitutional limits on legislative power over structure American constitutional jurisprudence generally shies away from finding affirmative obligations the first possibility. Mostly it only identifies Constitutional prohibitions. Thus, unsurprisingly, the Constitution has never been authoritatively interpreted to require limits on concentration. Closely related is the issue of whether the Constitution affirmatively requires the regulate in behalf of expressive interests of non-owners or the needs of the public? So far the answer has been no. In the most prominent case, a political party and a public interest group each asked the I3 Analytically, there is also the possibility that the First amendment requires the government to promote concentration. I leave that out-no one whom I know has advanced such a position even as a possibility Obviously, this claim is too simple. The one can be turned into the other-the government can be prohibited from not taking some action- which is happens whenever in an equal protection case the court invalidates an exclusion of a group from the category of beneficiaries 15 This situation can be contrasted with common requirements, of both constitutional and statutory basis for access in many situations in Europe- although only a speaker's right to reply to false or negative Baker-11/06/02
Baker - 11/06/02 - 7 - least in respect to concentration, or, finally, (iv) seriously limit government’s authority to engage in structural regulation including its power to restrict concentration.13 My claim here will be that the Supreme Court holdings have been most consistent with the third possibility – leaving the government relatively free to engage in structural regulation. However, with encouragement by the Supreme Court’s recent articulation of a new doctrinal approach and with a new, usually unarticulated conception of media claimants’ status, lower courts have increasingly adopted the fourth – constitutional limits on legislative power over structure. American constitutional jurisprudence generally shies away from finding affirmative obligations, the first possibility. Mostly it only identifies Constitutional prohibitions.14 Thus, unsurprisingly, the Constitution has never been authoritatively interpreted to require limits on concentration. Closely related is the issue of whether the Constitution affirmatively requires the government to regulate in behalf of expressive interests of non-owners or the needs of the public? So far the answer has been no.15 In the most prominent case, a political party and a public interest group each asked the 13 Analytically, there is also the possibility that the First Amendment requires the government to promote concentration. I leave that out – no one whom I know has advanced such a position even as a possibility. 14 Obviously, this claim is too simple. The one can be turned into the other – the government can be prohibited from not taking some action – which is happens whenever in an equal protection case the court invalidates an exclusion of a group from the category of beneficiaries. 15 This situation can be contrasted with common requirements, of both constitutional and statutory basis, for access in many situations in Europe – although only a speaker’s right to reply to false or negative
court to require(or to order the FCC to require)a television network to air their paid editorial advertisements. The plaintiffs claimed, first, that government involvement in broadcast licensing and in prohibiting non-licensed broadcasting were among the factors that created state action. Second, they argued that this state action created a constitutional duty to require that broadcasters present communications by outsiders, especially for those outsiders willing to pay to have their message presented. With only Justices Brennan and Marshall dissenting on these points, the majority rejected one or the other of these claims 6 However, should the answer always be the same-for example, if the government creates, or there otherwise is in fact, a communications monopoly? Should common carriage be constitutionally required, for example, if the government creates a local telephone or cable monopoly? At least when the government grants monopoly control to a single cable company, a claim was made that the Constitution requires the government to condition the grant on some duty to allow some public access statements about the speaker is a common requirement at the constitutional level. See Barendt, supra note 10 at 144-67 16 CBS v. DNC, 412 U.S. 94(1973). In addition to Brennan and Marshall, several other Justices though it clear that the claim would be valid if there was state action but found no state action. More recently, however, the Court seems to be unanimous that the existence of state action -namely, state ownership of a broadcast station normally creates no type of forum and, thus, creates no obligation to present expression of outsiders. Arkansas Educational Television Commission v. Forbes, 523 U.S. 666(1998) Baker-11/06/02
Baker - 11/06/02 - 8 - court to require (or to order the FCC to require) a television network to air their paid editorial advertisements. The plaintiffs claimed, first, that government involvement in broadcast licensing and in prohibiting non-licensed broadcasting were among the factors that created state action. Second, they argued that this state action created a constitutional duty to require that broadcasters present communications by outsiders, especially for those outsiders willing to pay to have their message presented. With only Justices Brennan and Marshall dissenting on these points, the majority rejected one or the other of these claims.16 However, should the answer always be the same – for example, if the government creates, or there otherwise is in fact, a communications monopoly? Should common carriage be constitutionally required, for example, if the government creates a local telephone or cable monopoly? At least when the government grants monopoly control to a single cable company, a claim was made that the Constitution requires the government to condition the grant on some duty to allow some public access statements about the speaker is a common requirement at the constitutional level. See Barendt, supra note 10, at 144-67. 16 CBS v. DNC, 412 U.S. 94 (1973). In addition to Brennan and Marshall, several other Justices though it clear that the claim would be valid if there was state action but found no state action. More recently, however, the Court seems to be unanimous that the existence of state action – namely, state ownership – of a broadcast station normally creates no type of forum and, thus, creates no obligation to present expression of outsiders. Arkansas Educational Television Commission v. Forbes, 523 U.S. 666 (1998)