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January 16, 2005

corrupting the press: the Williams case

C. Edwin Baker: January 16, 2005

The Department of Education reportedly paid conservative broadcast commentator and talk show host Armstrong Williams $240,000 not only to run two government advertisements on his show but also to have Williams himself regularly comment favorably on the government’s "No Child Left Behind" program and to provide government officials access as guests to his program. Whatever one thinks of the paid ads as policy, they are not objectionable on principle. The government has long spent hundreds of millions of dollars on providing press releases, operating its own media, and directly paying for advertisements – like its army recruiting ads.

The same cannot be said for the payment to Williams to plug the governments programs in his role as a media commentator. This practice strikes at the heart of a free and independent press. The central claim of a free and independent press is that its presentations represent its own views of the information and opinion the public should receive. It is to protect this independence that the press receives constitutional protection.

Former Supreme Court Justice Potter Stewart explained the guarantee of freedom of the press as a "structural provision" to guarantee the Fourth Estate "institutional autonomy" so that the press would not be impaired in providing "organized, expert scrutiny of government." Outsiders’ payments to get the press to present the outsider’s views as if they represent the independent judgments of the press impairs the institutional integrity of the press. The payments not merely blur lines but subvert the press’s constitutionally contemplated role as an independent watchdog of government and of the powerful.

Of course, either private or government intrusion can threaten this integrity. But as Justice Hugo Black famously argued, "It would be strange indeed if the grave concern for freedom of the press which prompted adoption of the First Amendment should be read as a command that the government was without power to protect that freedom. . . . Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests."

Congress has agreed. In 1912, it enacted legislation that normally requires newspapers and other periodicals to identify as advertising any content for which it is paid to publish. Statutes and the FCC have imposed virtually identical requirement on broadcasters and cable operators beginning in the late 1950s. The goal is not to prevent private interests from getting their message out or to prevent the media from being a conduit. Rather, by requiring these paid messages be identified as advertising, the laws help assure the public that the press’s apparently non-advertising messages actually represent the media’s independent judgment that its presentations have merit and are worthy of notice.

Armstrong Williams may have violated these laws. However, independent of these laws, when the threat to press integrity comes not from private power but from the government, constitutional principles are also at stake. The Constitution operates when government is not the solution but the problem. Of course, one branch may try to stop abuse by another branch. Congress, for example, could protect the confidentially of reporters’ sources from intrusion by the executive branch and the courts on the ground that forced disclosure undermines integrity of the press. Likewise, Congress arguably tried to protect against government payments such as those to Williams that undermine the press’s autonomy, for example, with laws prohibiting certain forms of propaganda.

The central principle of civil liberties is that the means by which the government pursues proper aims must themselves be proper. The government can have vital goals but their pursuit by torture abroad, illegal searches and seizures at home, uncompensated taking of property, or kangaroo juries is impermissible. Likewise, the government can try to convince the public but not by censoring contrary views. More subtly, the government cannot pursue its advocacy goals by means that undermine the integrity of a free and independent press.

Just as government should protect the press from objectionable uses of private power, the Constitution should protect the press against abuse of governmental power. One can hope and demand that the executive will be sensitive to the civil libertarians’ demand that it use proper means, here, proper methods of trying to convince the public of the wisdom of its policies. And one can hope and demand that Congress will require the executive to use proper methods.

Still, I agree with Justice Stewart that our constitution prohibits, and that we should be thankful that it prohibits, government action that undermines the institutional integrity of the press. It does this when it pays elements of the press to present the government’s views not as the government’s view but as the press’s own view. In other words, the Department of Education’s payment to Williams to present their view as his – even if they happen also to be his view – should be understood to violate the First Amendment.

Media policy and the first amendment

C. Edwin Baker: January 16, 2005

My earlier posting, corrupting the press, claimed that the government paying Williams to present the government’s policies as representing Williams own views violated the first amendment. I want to make two further observations, one generally about media policy and the other about the premises of the first amendment interpretation that I offered. First, as long as the left believes in people it must believe that part of the responsibility for the stupidity of electoral results reflects the failure of the media to provide a proper background knowledge among the portion of the public that votes contrary to its own (or any other legitimate) interest. But this failure is reasonably predictable given the existing legally-created structure of the media and media markets. If both these points are right, then structural media policy matters ought to be near the top of any progressive legislative agenda.

Second, the first amendment view that I offered depends on a controversial but vitally important interpretative choice. The argument depends on seeing the press clause as having a different role than protection of individual expressive freedom implicit in freedom of speech. Instead, the argument sees the press clause as protecting an institution and protecting it because of its instrumental connection with, contribution to, democracy, both cultural and political. This view treats the press as rights bearers not in its own right but as rights bearers to the extent the particular right furthers the media’s instrumental constitutional role. In contrast, conservative groups are increasingly reading the guarantee of press freedom as intended to protect the corporate media entities as rights bearers in their own right. The first view is illustrated by protecting reporter’s confidential sources or the institutional integrity of the press that the government violated with its payments to Armstrong Williams. In contrast, various academics, lawyers, and some times courts (especially the D.C. Circuit) have been adopting the second view – the press as rights bearers in their own behalf. This makes little sense in normative (or legal) theory. A press entity is not an morally inviolate person but rather a legally structured collection of people; institutions or legal structures can only have normative value to the extent they contributes to human values. Restrictions on media ownership concentration might have thought to be constitutionally required or more likely, as Justice Black argued, constitutionally permissible as means to increase the likelihood that the press will serve its democratic role. Nevertheless, the conservatives (courts and academics) adopting the second view of press freedom have been concluding that restrictions on ownership concentration are themselves constitutional abridgments of press entities’ right to speak to as many people as it can. This increasing sway of this conception of press freedomis a real possibility. It amounts to threat not only to sound media policy but to democratic culture.