Inside the 1st Amendment: Rule makes free press weaker

Opinion

July 9, 2012

Inside the 1st Amendment: Rule makes free press weaker

By Gene Policinski, Syndicated columnist The Record Eagle Mon Jul 09, 2012, 09:54 AM EDT

Saving the First Amendment in principle sometimes means having to recognize a less-than-perfect application in reality — at least until a better solution comes along.

Courts long have had to balance our privacy rights against the need for searches in criminal investigations, and had to weigh a suspect’s right to a fair trial and unbiased jury against the public’s right to know what is happening in its courtrooms.

We have laws that preserve the right of free expression while acknowledging that the “time, place and manner” of that speech may be restrained at times for a competing good. No campaign rallies at 3 a.m. in a residential neighborhood, for example.

The U.S. Supreme Court’s 2010 decision in Citizens United v. FEC, and its recent ruling striking down a Montana campaign law, permit direct corporate and union spending in state and federal elections. The court said it was upholding the idea that money is speech and that the First Amendment brooked no limitations on political speech just because of big bankrolls.

But as critics have pointed out, upholding that principle of unfettered free expression also opened the legal floodgates to a torrent of spending — and to the potential for elections for sale. Possible counters to those ills, such as total transparency on spending, necessarily affect another valued First Amendment tenet: anonymous political speech.

In last week’s final decisions of the 2011-2012 Supreme Court term, yet another First Amendment conundrum appeared. The justices refused to hear an appeal of a 3rd U.S. Circuit Court of Appeals ruling, in Prometheus Radio Project v. FCC, upholding a 1975 Federal Communications Commission ban on broadcasters owning a newspaper in any of the 20 biggest media markets. The FCC rule also precludes owning multiple TV or radio outlets in the same cities.

News media representatives argue that today’s free press may well not survive economic challenges and new digital competitors without consolidating to cut costs. If the original idea behind the rule was to preserve and encourage multiple news sources and voices in communities, they maintain it’s no longer needed in today’s media-saturated environment of traditional news providers, cable and satellite TV and unlimited information on the Web.

A financially stronger owner of TV, radio and newspaper outlets has access to more resources to report the news. That’s no small asset in an era of newsrooms so shrunken that we must worry about the ability of newspapers and local broadcasters to fulfill their constitutional role of a free press as a “watchdog on government,” opponents of the FCC ban say.

On the other side, opponents of consolidation argue that, without the rule, a handful of major corporations could control all of the news media in our largest cities — and perhaps dominate the national news scene, as well.

Huge corporations and media conglomerates already own too many newspapers and TV stations even under the existing the “cross-ownership” ban, they say. Consolidated ownership would simply result in even more “homogenized” news products, they add, and encourage absentee decision-making about local news coverage.

The harsh reality is that for large to medium-size newspapers a 100-plus-year-old revenue formula based on a combination of advertising and circulation has disappeared with the rise of Web-based advertising and digital news competitors.

Newspapers and even some broadcast outlets in major cities are struggling, if not failing, and tens of thousands of newsroom jobs have disappeared in a decade. In general, online media have yet to develop the same expertise and scope of news coverage or reach into the community.

Simply continuing a rule created when newspapers generated generous profits ignores that reality.

If recent past is any prologue, risking the future of a free press in a hardscrabble economic marketplace — even for the laudable goal of ensuring multiple voices in a community — may well mean fewer news outlets in the end, fewer journalists holding public officials accountable.

An even weaker free press would be a result no rulemaker intended.

Gene Policinski is senior vice president and executive director of the First Amendment Center, 1207 18th Ave. S., Nashville, Tenn., 37212; on the web at: www.firstamendmentcenter.org; by e-mail at: gpolicinski@fac.org.