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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.
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Comments
Posted by: Perseus
The administration is merely following the example of the author of the First Amendment, Madison, who, along with Jefferson, schemed to hire Philip Freneau as a "translator" at the State Department so that he could establish an opposition newspaper, The National Gazette.
And where is the outrage at Howard Dean's hiring of two Internet bloggers as consultants so they would tout his campaign on their websites (DailyKos & MyDD)?
Posted by: Perseus | Jan 16, 2005 5:19:51 PM
Posted by: Jim Hu
Violation of the first amendment strikes me as a very long stretch, however much I dislike what happened. I don't think that the D of Ed spending abridged anyone else's right to criticize NCLB...unless you're arguing that the government unjustly monopolized buying off Armstrong Williams, preventing NCLB critics from buying him too!
Posted by: Jim Hu | Jan 16, 2005 6:04:44 PM
Posted by: Perseus
I forgot to add the clear implication of my first remark: If Madison, the author of the First Amendment, saw no constitutional violation in his partisan antics, who is Justice Stewart (or anyone else lacking Madison's stature) to say otherwise?
Posted by: Perseus | Jan 16, 2005 6:31:26 PM
Posted by: oliver
I guess the media spent themselves on the Karen Armstrong story and/or nothing shocks anymore, because there really ought to be more of a hullubaloo about this Williams thing. It's truly egregious.
Posted by: oliver | Jan 16, 2005 7:23:49 PM
Posted by: Mark O
Before you go and tar Mr Williams with a black brush, you might read this here.
It seems likely that Mr Williams was not aware that the Ketchum Agency with which he transacted was acting on behalf of a government agency. That may change the basis of some of the charges leveled against him.
Read the rest of that post as well.
Posted by: Mark O | Jan 16, 2005 9:40:38 PM
Posted by: Jeff Licquia
So corporate entities have the right to buy the press, but the government doesn't?
Does the government also not have the right to publish their own views on things, since that would involve the government paying a press entity?
OK, so maybe the secrecy is the big constitutional problem. So stings like this, where the police publish fake sites secretly to lure pedophiles into revealing their identity, are wrong?
I'm not clear on what Williams really did; I've heard conflicting claims. Certainly, I think we can say that his credibility is shot, which sounds like a fairly equitable punishment for either stupidity or willful corruption. According to some, he may have even violated some payola laws (conventional laws, not Constitutional), for which he should receive the usual due process.
But violating the First Amendment? Prove to me that he was threatened by the government if he didn't have those guests, or promote those policies, and you'll have a case. Otherwise, this is just hyperventilating.
Posted by: Jeff Licquia | Jan 16, 2005 10:27:38 PM
Posted by: oliver
"Before you go and tar Mr Williams..."
I could care less about Williams. The scary business is what the government did.
Posted by: oliver | Jan 16, 2005 11:28:52 PM
Posted by: J. Smith
"Scary?" Before this happened I'd never even heard of Armstrong Williams. He didn't sway my opinion of NCLB. I'm not saying that nothing was done wrong, I don't have all the facts. I don't know that it's worth all of this fear and conclusion-jumping though. Let's keep it in perspective. NCLB was a bi-partisan effort with TED KENNEDY on board. It's not like it wouldn't have passed without Williams plugging it, paid or unpaid.
Posted by: J. Smith | Jan 17, 2005 1:40:09 AM
Posted by: J. Smith
Armstrong Williams claims that the deal was just for the commerical ad time and didn't affect his commentary on the show. His current column, an apology, gives his side of the story. You can find it here.
Posted by: J. Smith | Jan 17, 2005 1:42:16 AM
Posted by: oliver
It's a nice apology and I am full of sympathy for the man, but the man crossed a very very very important line. The fact that line doesn't glow fluorescent red is no excuse for crossing it. The government needs to learn to know better.
Here's his employer's story from http://poynter.org/forum/view_post.asp?id=8580
STATEMENT BY TRIBUNE MEDIA SERVICES
Tribune Media Services (TMS) today informed Armstrong Williams that it is terminating its business relationship with him effective immediately. After several conversations with Mr. Williams today in which he acknowledged receipt of $240,000 from the U.S. Department of Education (DOE), TMS exercised its option to discontinue distribution of his weekly newspaper column.
The fact that Mr. Williams failed to notify TMS of his receipt (through the
Ketchum public relations agency) of payments from the DOE is a violation of provisions in his syndication agreement with TMS. The agreement requires him to notify TMS when "a possible or potential conflict of interest arises due to the subject matter of (his columns) and the social, professional, financial, or business relations of (Mr. Williams)."
We accept Mr. Williams' explanation that these payments by Ketchum on behalf of DOE were for advertising messages broadcast on his radio and TV shows. Nevertheless, accepting compensation in any form from an entity that serves as a subject of his weekly newspaper columns creates, at the very least, the appearance of a conflict of interest. Under these circumstances, readers may well ask themselves if the views expressed in his columns are his own, or whether they have been purchased by a third party.
Statement released at 4:30 pm CST, Friday, January 7, 200
Posted by: oliver | Jan 17, 2005 8:12:15 AM
Posted by: oliver
"claims that the deal was just for the commerical ad time and didn't affect his commentary on the show."
The point is that he was, as they say, compromised and that he had, as they say, a conflict of interest. At the very least it's like senators receiving lavish gifts from interest groups or policemen taking gifts from gangsters.
Posted by: oliver | Jan 17, 2005 8:17:21 AM
Posted by: oliver
Here's one way the compromise could affect what goes out on the air. Say in the public sphere someone makes an argument or disclosure that moderates or entirely kills William's enthusiasm for the position he was initially advocating on TV and which made him the government's choice of spokesman for its hand-shake committment of $240,000 for an ongoing series ads. Williams is a columnist whose beat includes the area in which his secondary client (the government) has an agenda and his primary client (the broadcaster) pays for him to share his wisened journalist's opinion on air with their viewers. Williams is going to have to ask himself whether to speak his mind and alienate his secondary client to carry out his responsibility to his primary one and to his audience. In this circumstance, the government has given the man a $240,000 incentive not to speak his mind or to call 'em as he sees 'em.
Posted by: oliver | Jan 17, 2005 8:45:08 AM
Posted by: Mark O
Oliver,
I could care less about Williams. The scary business is what the government did.Uhm, then if the government is in your mind should be restricted from employing an ad agency, you are then against it using advertisements in all cases, for example nutrition, drinking, smoking, or the environment?
And do you know for a fact, how closely the government instructed the Ketchum agency in how they performed their public relations campaign?
Posted by: Mark O | Jan 17, 2005 10:12:51 AM
Posted by: bjd
[http://tinyurl.com/5kv8p]
Posted by: bjd | Jan 17, 2005 2:37:59 PM
Posted by: Cranky Observer
From the Federal Communications Commission:
Section 507 of the Communications Act, as amended, 47 U.S.C. § 508 requires that when anyone pays someone to include program matter in a broadcast, the fact of payment must be disclosed in advance of the broadcast to the station over which the mater is to be carried. Both the person making the payment and the recipient are obligated to disclose the payment so that the station may make the sponsorship identification announcement required by Section 317 of the Act. Failure to disclose such payments is commonly referred to as ``payola'' and is punishable by a fine of not more than $10,000 or imprisonment for not more than one year or both. These criminal penalties bring violations within the purview of the Department of Justice.
Posted by: Cranky Observer | Jan 17, 2005 3:57:46 PM
Posted by: oliver
Mark O, the "beauty" of conflict of interest is that it's bad no matter what the accused had in mind, just as driving over the speed limit is bad even on an empty straightaway in a well-maintained sports car. The government shouldn't be offering money to break the speed limit.
Posted by: oliver | Jan 17, 2005 4:09:31 PM
Posted by: oliver
What constitutes "program matter"? Payola strikes me as a stetch.
Posted by: oliver | Jan 17, 2005 4:39:48 PM
Posted by: tom perkins
The FCC has no and should have no authority over newspapers, it deals or should deal solely with the electronic media where a supposed scarcity of resources exists (fequency allocation), and the government has arrogated to itself the alloting of frequencies. The evolution of electronic media has been such that this function isn't nearly as important as it once was, and it is the only excuse for the existence of a media control organ in the American governemnt.
There can be no constitutional objection to the success of one media overtaking another in its importance to people as a source of information, merely because people are freely choosing to also reject the leftist views most commonly associated with the waning media--the leftist big three television networks.
As I mentioned in another post on the other "Williams" thread, good luck passing such legislation and good luck enforcing it. I can't wait for the fireworks.
Yours, TDP, ml, msl, & pfpp
Posted by: tom perkins | Jan 17, 2005 11:37:48 PM
Posted by: tom perkins
Interesting how Edwin is assuming this is what happened:
"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."
Where has a contract been published? Either Ketchum's with Williams, or Ketchum's with the DoED?
Where is the evidence the government paid Williams to change his views, without which paid change in views, Edwin and the Left have nothing to complain about, even on the basis of the specious argument they are making?
Williams evidently broke an ongoing contract with
an employer and got fired. Okay, sounds good. I am unaware of any evidence that he was subborned to do so by the government.
Yours, TDP, ml, msl, & pfpp
Posted by: tom perkins | Jan 17, 2005 11:45:12 PM
Posted by: tom perkins
Oliver wrote:
"just as driving over the speed limit is bad even on an empty straightaway in a well-maintained sports car."
It isn't bad, in and of itself. It is malum prohibita as opposed to malun in se, and I am of the impression that in the form of a priori restrictions on actions not in and of themselves creating any tort, that all such laws are on shaky (leftist, social engineering grounds commonly) ground with respect to the "due process" clause of the Constitution and the 9th and 10th amendments.
Is the left insane? Is that how we got in this statist handbasket? Why do I smell sulfur, where are we going in this handbasket?
Oliver, I love ya man, you've been a great source of entertainment latley.
Yours, TDP, ml, msl, & pfpp
Posted by: tom perkins | Jan 17, 2005 11:49:44 PM
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