By Susan Estrich
March 17, 2000
The First Amendment is premised on the notion that the greatest threat to free expression is government. The Constitution does not guarantee free expression or a free press. It guarantees a press free from government, and a right to speak without government interference. At one time, that was enough. Now, it's simply backward.
This week's media mega-merger underscores the increasing concentration of ownership of the sources of news and information into fewer and fewer hands. In defense of the merger -- which puts parent Tribune in violation of cross-ownership rules because of its control of television stations and newspapers in Los Angeles, New York and Hartford -- it is argued that the local television station and local newspaper no longer enjoy the dominance in their markets they once did, which certainly is true.
Traditionally, it was the scarcity of the broadcast spectrum that justified a level of regulation both of ownership and content that would have, and was, considered inconsistent with the First Amendment, where scarcity was not at issue. With only three stations in the market, independent ownership is more important than when there are hundreds of choices; equal-time rules have always been applied only on television and radio, not in the newspaper.
Technology has answered that scarcity problem. The problem today is not a scarcity of sources of information, but the increasing scarcity of owners of the increasing number of outlets.
AOL-Time Warner-Turner makes the loss of a locally owned paper in Los Angeles, and cross-ownership in a couple of cities, seem like small potatoes. It was not long ago that CBS-Viacom was considered the deal of the century. Instead of a handful of stations dominating the market, we have a handful of owners dominating the industry.
For our Founding Fathers, whose understanding of power was defined by their experience with the King, the greatest threat to freedom was from government. The Bill of Rights applies only to state action; by limiting government intrusion in the marketplace of ideas, they would ensure its integrity.
But censorship by government is by no means the greatest contemporary threat to freedom of expression. AOL has far more control over the average American's access to information, and far more power to intrude on his privacy, than the government does. When it was revealed that the government anti-drug office had reviewed scripts of an entertainment program, protests were widespread, and the oversight ended.
The media would never let the government get away with it.
But who provides the check on the media?
Every day, in much smaller ways, the dangers of self-censorship lurk in decisions as to what stories to cover, and how much, and what angle to push, or whether to cover them at all. Is it worth it, you ask yourself. The big story will be covered regardless; too many little ones just go away, in the same way big money does and does not corrupt Congress.
The consequences stretch beyond self-censorship, to the more basic question of how much news and information is valued, and how much we get. Analysts have emphasized that a major part of the benefit of the Tribune deal to Times Mirror shareholders owes to the fact that Tribune has substantial entertainment properties, while Times Mirror does not. Profit-wise, that is advantageous. But it also means the news media as a whole is, in the context of these mergers, suffering precisely the same fate as the network news divisions in recent years: The news has become a profit center, competing with entertainment and sports franchises, and being judged by similar standards.
The corporate elite will argue -- as Tribune will in seeking approval of its deal and as Internet executives did only recently in meetings at the White House -- that the government should stay out of their business. They will invoke the First Amendment. They are the new civil libertarians. But the underlying freedoms that the Constitution celebrates are most vulnerable because of them, not because of the government.
In the 21st century, freedom may depend on government interference, not government restraint.
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