Left2Right

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Posted by: Jim Hu

OK, you're the leading expert in the first amendment at an Ivy League school, and I'm just a biochemist at a red-state state school...so I'm going to assume that I must be misunderstanding your views (and I should have read this and your bio before replying to your previous post).

Here's how I read your post:

• I don't like losing elections


• The market has delivered a media that has failed to get the public to agree with me


• If we restrict the protections of the first amendment to individuals and not corporations, then we can regulate the corporate institutions of the press without violating the first amendment


• Appropriate regulation of media policy to make corporations "contribute to human values" will deliver election results I like better

Posted by: Jim Hu | Jan 16, 2005 6:23:33 PM

Posted by: D.A. Ridgely

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.

I just liked that sentence so much I wanted to see it in print again.

Mr. Hu, never fear. You need know no more about the constition than I know about trees to understand the author's position.

Posted by: D.A. Ridgely | Jan 16, 2005 6:36:14 PM

Posted by: D.A. Ridgely

It would, however, help if I could spell.

Posted by: D.A. Ridgely | Jan 16, 2005 6:37:35 PM

Posted by: John T

C Edwin, Yes life is hell out there. While we are on the subject of Armstrong Williams may I ask about the morality of gov't giving money to advocacy groups. You know,Planned Parenthood,the AARP and my favorite La Raza. Now just what do these groups do with this money? Right,they advertise with it,among other things. I won't forget Planned Parenthoods full page ad in the NY Times against the Clarence Thomas nomination for example. What say you Mr Edwin? As to corporations not being morally inviolate persons,obviously that doesn't mean they don't have rights,you did say LEGALLY constructed collection of people[who apparently have the right to incorporate]. The stupidity of election results and the other stuff I'll get back to Monday. I,ve got some good books to read but this is a dark post you have made Mr Edwin

Posted by: John T | Jan 16, 2005 7:37:21 PM

Posted by: oliver

"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."

Yes, nice sentence, but in principle incomplete I think, because media could provide great background and still not prevent stupidity if people don't trust it, which is something I seem to hear all the time from the right. I suppose I could say same of the left if Fox News were really news.

Posted by: oliver | Jan 16, 2005 7:38:11 PM

Posted by: CDC

C. Edwin: Can intelligent people of good will look at the same information and make different decisions?

Posted by: CDC | Jan 16, 2005 7:59:21 PM

Posted by: D.A. Ridgely

Thank you, Oliver, for mentioning that media behemoth, Fox News.. You’ve given me a reason to offer another quote I’m even more fond of from the late Michael Kelly:

I believe that The Washington Post, the Los Angeles Times, The New York Times, Newsweek, Time, U.S. News & World Report, ABC, CBS, NBC, CNN, PBS and NPR are all part of a vast right-wing conspiracy. Especially NPR.

Posted by: D.A. Ridgely | Jan 16, 2005 8:15:41 PM

Posted by: S. Weasel

"Article [I.] Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

That's it. That's your lot. I can't for the life of me see how Congress made a law abridging Williams' freedom. Covertly taking money from the government to advocate a government program was stupid and wicked, but I can't see unconstitutional.

It's not at all clear to me that the founders ever had anything like regard for the press as an institution that the press has for itself, particularly in recent times. I mean, check it out -- it gets one mention and barely squeaks ahead of peacable assembly. Or petitions.

Posted by: S. Weasel | Jan 16, 2005 8:19:11 PM

Posted by: rtr

The totalitarian interpretation of the first amendment aside (no law is no law), I rather like the line of reasoning because I believe it opens up attacks to government taxation on First Amendment grounds. Let it be argued firstly that taxation of the press is taxation of free speech, violation of free speech, akin to taxation of the Church. Let’s conclude that taxation generally is a violation of free being, speech. Forcing individuals to spend their money on social security and health care deprives them of the means to purchase and privately fund the free press. It amounts to censorship. At a minimum it makes the case for government refunds of gas and mileage depreciation for protest attendees. After Bush stacks the Court let rtr vs. The United States be the new Roe of the 21st century. Then legal scholars can fill pages on “the abridgment” clause for generations.

Posted by: rtr | Jan 16, 2005 8:33:17 PM

Posted by: David

Mr. Hu:

Your reading is wrong (and unfair) because Prof. Baker defends his interpretation of the Free Press Clause not by claiming it will satisfy more of his personal preferences if followed but by contending that protecting the press collectively is part of an institutional design with instrumental significance in a constitutional democracy.

If democracy is part of a politically just government because it gives citizens a certain political autonomy--by providing them some power to choose the laws and institutions that govern them--then certain procedural safeguards must be in place to ensure that voting is exercised with competence and some appreciation regarding the political consequences of their vote. What good would respecting autonomy serve if agents made decisions against a background of poor information about the consequences of their decisions? As a result, it would make perfect sense (to someone drafting a constitution) to prevent the government from influencing the messages disseminated by the press. To be sure, justice doesn't simply endorse democracy; it endorses democracy with certain procedural and substantive constraints. Hitler was elected democratically, for pete's sake, but wouldn't a constitutional framer want to prevent the injustice of Hitler's Germany by proscribing government propoganda as well as particular acts that violate individual's moral rights? (I'm no historian and don't intend to ground my argument on any serious historical data; the point is more theoretical)

But, Prof. Baker carefully distinguishes protection of the press from protection of individual liberty. Organizations do not have intrinsic value or, as others sometimes put it, primary value. Something has intrinsic value, it seems to me, only when we can refer to that thing as having a welfare without reference to any other entity. So my car doesn't have instrinsic value because it only has value to the extent I or some other sentient creature values it instrumentally. Similarly, organizations themselves don't have bad days or good days; rather, the value of an organization is appraised from the perspective of individuals affected by organizational behavior. Persons, however, (and I am using "person" in a technical sense that entails self-awareness) have instrinsic value, or some other kind of moral status which distinguishes them from organizations of persons.

Thus, any constitutional or legal protection of certain organizations must be related to some instrumental value such organizations provide intrinsically valuable individuals. More specifically, when a government recognizes an organization and affords it legal protection, we would be wise to appreciate the instrumental reasons for legal protection when we interpret the substance and scope of such protection.

A few posters have not paid sufficient attention to exactly what Prof. Baker is arguing, and on which provision of the constitution he is basing his remarks. He is addressing whether instances like the Armstrong payments violate the very vague Free Press Clause, which says Congress shall make no law abridging the freedom of the press. The meaning of this phrase is not self-evident, so he must provide a basis for his interpretation--which he does reasonably well. Based on his claim that the press has an instrumental value to voters, the realization of which depends on the independency of the press, he holds that the government cannot deliberately undermine the independency of the press. This is a rather straightforward claim, but no posters on this thread are even trying to challenge his particular interpretation. Instead, we see the usual pissy remarks that attempt to reveal underlying motivations, purposes, etc. of the author. Somebody please challenge the merit of his argument with a counter-argument. There are serious challenges that could reasonably be made, but all I am seeing is two or three sentences of rock-throwing.

Posted by: David | Jan 16, 2005 8:44:57 PM

Posted by: Glen Raphael

Oliver: the problem with the quoted sentence is that it simply assumes the voters were, in fact, voting contrary to their own (or "any legitimate") interest and assumes the final result reflected "stupidity".

I'm no fan of Bush and didn't vote for him, but isn't it worth considering even for a heartbeat the possibility that the voters actually picked the (slightly) better candidate? Maybe Kerry was just the wrong man for the job. Maybe some of the "stupidity" in this election was on the part of the Anyone But Bush crowd nominating a guy who wasn't sufficiently different enough from Bush to make up for the fact that he was an unknown quantity.

I'm just saying, is all...

Posted by: Glen Raphael | Jan 16, 2005 8:53:15 PM

Posted by: S. Weasel

A few posters have not paid sufficient attention to exactly what Prof. Baker is arguing, and on which provision of the constitution he is basing his remarks. He is addressing whether instances like the Armstrong payments violate the very vague Free Press Clause, which says Congress shall make no law abridging the freedom of the press. The meaning of this phrase is not self-evident

The meaning of the phrase is extraordinarily self-evident to me. Perhaps that is why I'm not an academic.

Posted by: S. Weasel | Jan 16, 2005 8:58:34 PM

Posted by: D.A. Ridgely

David, if it is important to ensure that voting is exercised with competence and some appreciation regarding the political consequences of their vote, would you favor a competency test for voters?

Mr. Raphael, that's part of what's wrong with the sentence. Another part is "as long as the left believes in people."

Posted by: D.A. Ridgely | Jan 16, 2005 8:59:24 PM

Posted by: Glen Raphael

I voted for Badnarik, yet, strangely, Badnarik didn't win. How can I explain the mystery of Badnarik not winning? Here are a few hypotheses:

(a): the voters are idiots, and voted against their interests out of stupidity.
(b): the media did a bad job getting the Badnarik message out, so the voters were ill-informed and voted against their interests out of ignorance.
(c) The Badnarik campaign did a bad job. With better strategy, Badnarik could have won.
(d) Badnarik was a bad candidate. Some other libertarian candidate might have done better.
(e) The voters considered and rationally rejected the libertarian philosophy of government.

Only (a) relies on assuming the voters are idiots. If one rules out (a), that doesn't mean (b) is a significant factor. (c), (d), and (e) could each explain an electoral loss without any help from (b).

Posted by: Glen Raphael | Jan 16, 2005 9:12:11 PM

Posted by: David

D.A:

I do favor some safeguards to prevent votes by incompetent citizens. Age restrictions are an example already enforced. I don't think mentally ill people should be able to vote nor really drunk people either--while drunk. But, a myriad of difficulties exist if we get serious about enforcing competency. What constitutes competency? How much money should be spent to prevent incompetent votes? I don't have great answers, but I will say that incompetent voting is something to be avoided.

S. Weasel:

What is so clear about the term "press," especially noting that it is mentioned separately from freedom of speech, which presumably refers to individual expression? It must be intended to refer to something other than the publication of personal views. And, in 1789, the press was even more narrowly understood, as there was no broadcasting through radio, cable, internet, etc.

And what does it mean for congress to make a law? Does this apply to government action by agencies created by congress? A great deal seems vague to me.

Posted by: David | Jan 16, 2005 9:14:32 PM

Posted by: Perseus

Since this thread had migrated here, I will reiterate my point, namely, that Madison, the author of the First Amendment, conspired with Jefferson to hire Philip Freneau as a State Department "translator" so that he could establish an opposition press, the National Gazette. If Madison thought his partisan antics (which were similar to this case) were constitutional, how can it be claimed that such activities are inherently unconstitutional? Certainly such activities undermine the integrity of the press and ought to be dealt with using normal statute law, but to enshrine it as a constitutional doctrine is a dubious proposition that smacks of judicial activism.

Posted by: Perseus | Jan 16, 2005 9:33:28 PM

Posted by: CDC

David: You're right. My drive-by post was made in response to the premisses implicit in the "...stupid electoral results..." sentence. It was off topic. Since arguing the first amendment with law professors would be about as productive as arguing original sin with Jesuits, I'll leave this thread to others.

Posted by: CDC | Jan 16, 2005 9:46:13 PM

Posted by: S. Weasel

What is so clear about the term "press," especially noting that it is mentioned separately from freedom of speech, which presumably refers to individual expression? It must be intended to refer to something other than the publication of personal views.

No, "speech" is speech, not personal views. "Words that come out of mouths" versus "words that come off of printing presses" is more like it. I'm no expert on late 18th C journalism, but I don't think contemporary newspapers were large or complex entities in the US, and newspapers would be the most sophisticated sort of "press" they had. There were a raft of laws constraining newspapers in Europe, which probably what the founders had in mind here.

And what does it mean for congress to make a law? Does this apply to government action by agencies created by congress?

Nope. "Congress" and "law" pretty much covers it. "Law" as mentioned in the other amendments is clearly formal statute by a state or federal legislative body (or common law).

The framers were working hard to make these documents as firm and unambiguous as they could. A couple of centuries worth of language drift make some of it opaque, but I think you have to work hard to make most amendments abstruse. I've always believed the press (modern) has a case of the rats because it only got that one passing mention in our founding documents.

Posted by: S. Weasel | Jan 16, 2005 9:50:58 PM

Posted by: David

Perseus:

Who knows if Madison thought that his "antics" were constitutional? People can knowlingly break their own laws, or cheat on the morality they propound. And is it necessarily relevant if he didn't think it was unconstitutional? Many, including myself, do not think that the Constitution should be interpreted according to the original intent of the framers. I won't rehearse the argument for this view again, since I've already done it once on this site--see my post on Christian Nation, January 12, 2005 01:16 PM .

Posted by: David | Jan 16, 2005 9:51:17 PM

Posted by: David

S. Weasel states: "The framers were working hard to make these documents as firm and unambiguous as they could."

Sure, so they chose phrases like "cruel and unusual," "just compensation," "due process," and "privileges and immunities" for their perfect clarity? That document is loaded with ambiguity.

Posted by: David | Jan 16, 2005 10:00:25 PM

Posted by: Steven Horwitz

Maybe, but the ambiguity can be dispelled to some degree by reading the accounts of the various constitutional conventions and attempting to understand what the authors and the public at large understood those words to mean. Just because we aren't very certain about their meaning today doesn't mean that the weren't much more clearly understood and agreed on at the time.

Posted by: Steven Horwitz | Jan 16, 2005 10:03:44 PM

Posted by: Davie

Is there any chance that there was wide agreement regarding the meaning of "cruel" or "just" among all those who ratified the constitutional amendments? Anyway, those are moral terms, so shouldn't they be understood according to our best moral understanding rather than the framers' thoughts? This is controversial, and I don't want to start a long debate on constitutional theory, but I just wanted to bring attention to the controversy.

Posted by: Davie | Jan 16, 2005 10:09:56 PM

Posted by: S. Weasel

Many, including myself, do not think that the Constitution should be interpreted according to the original intent of the framers.

Oh. Well. In which case, we don't have a constitution. It's a way to go, of course, but it means you and I are talking at cross purposes. I can stretch far enough to include radio and television as a "press," but I'm not content to reduce our founding documents to a series of serving suggestions.

"Cruel and unusual" — look at the usual late 18th C judicial punishments.

"Just compensation" — fair market value.

"Due process" — the ordinary legal process as contemporarily defined.

"Privileges or immunities" — rights.

And — be fair — I didn't say "perfect clarity." But, seriously, they weren't trying to make this hard. Their intent has been obscured by years of determined Jesuitical wrangling.

Posted by: S. Weasel | Jan 16, 2005 10:12:45 PM

Posted by: Dallas

If both these points are right, then structural media policy matters ought to be near the top of any progressive legislative agenda.

What's happening here is that Edwin proposes flipping the constitutional guarantee on its head. Freedom of the press really means abridging the freedom of some of the press to the advantage of other factions of the press.

It's necessary, you see, because the way things are working we're getting stupid results. Ergo, the constitutional framework must be redefined in a manner which advances the interests of the Left.

Hu had it exactly right.

Posted by: Dallas | Jan 16, 2005 10:16:12 PM

Posted by: Perseus

Madison was generally punctilious about adhering to what he considered to be the understanding of the ratifiers of the Constitution, including the First Amendment (thus, for example, his opposition to the Sedition Act). And I'm not persuaded by your anti-originalist argument since it would efface the distinction between constitutional and positive law. Don't like a law? Why just reinterpret the Constitution to suit your partisan ends, which is Jim Hu's perceptive insight on C. Edwin Baker's argument. To be sure, the originalist position does not prevent this sort of abuse from occurring (e.g. Dred Scott), but once it is abandoned, you abandon all restraint on arbitrary interpretation.

Posted by: Perseus | Jan 16, 2005 10:17:48 PM

Posted by: Perseus

A short addition: As a self-described progressive, Prof. Baker is following in the footsteps of the political founder of American Progressivism, Woodrow Wilson, who, as a college professor and later as U.S. president, sought to reinterpret the Constitution for partisan ends.

Posted by: Perseus | Jan 16, 2005 11:22:50 PM

Posted by: Jim Hu

David,

While I was not entirely avoiding snarkiness, I posed the question about what the heck he meant seriously...the unfair version was so far from what I'd expect from a serious legal scholar that I really did think that I was missing something. I suspect that I am still not completely understanding everything in either the post or your extension. Please correct me again if I misrepresent you.

Part of my ongoing confusion is related to what parts of the argument are related to what the government should do vs. what it should be proscribed from doing. I read your response as focusing on the question of whether our shared desire to have the government refrain from propaganda should be based on being prohibited by the First Amendment under Baker's interpretation where the act of using the press opens the danger of subverting the press. The problem here, it seems to me is in who decides what is propaganda vs. what is merely disemination of useful information. Although rtr and some of the minarchists might be happy to have a government that has nothing to say because it doesn't do anything, I suspect that many bills include provisions requiring various departments to publicize their efforts in the interest of maximizing equality of access to some program or other (I can't help thinking of the industry that has grown up around this in the form of the annoying Matthew Lesko commercials one sees on late night TV). I wonder whether such a provision is in NCLB, and I would not be surprised if it has one.

So, if we want the government to speak about its activities, it is inhuman to think that the folks at the Dept. of Education are going to do so in less than glowing terms when reporting on their own programs. This easily crosses the line into propaganda. But does it undermine the independence of the press? I suppose one could imagine a scenario where the government buys off enough of the press to endanger its independence. But as Nat Hentoff is fond of saying, the remedy for bad speech is more speech. Propaganda should be unmasked and the use of your tax dollars for propaganda can become a reason for voters to throw the rascals out...if the voters care. Perhaps I underestimate the danger, but it seems to me to be a misplaced application of the first amendment.

My view of the speech/press clause of the first amendment is that it is about suppression of speech. I put these together based on the semicolons. The press is not a person, but is protected as the instrumentality of exercising freedom of speech, based on arguments similar to yours (I think). So even if the press (in its various forms) is distinct from individuals, it is protected by extension from the individuals and groups of individuals who use it to distribute their speech. A linotype machine in the junkyard doesn't have rights. The NYT corporation does.

I read Baker as arguing that a broader reading of the first amendment not only permits but also requires additional regulation of the press to ensure a level playing field for different voices - "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." This may not be what he's saying - I have a hard time disentangling which views are his vs. those he is using for contrast - but that's how I read it. Combined with his opening, which links "the stupidity of electoral results" with a suggestion that the state of the media is the result of a market failure, I don't think my fearful reading of the post came out of the ether.

I read this as being not only broader than my view of the first amendment, but also as saying that the claim that the separate institutions that make up the press are not the locus of protection of the press at all - the broader institution of a free press as a whole must be protected, meaning that the government should do stuff to ensure that the press as a whole promotes democracy, even if that means interfering with the autonomy of individual corporations. The FCC would make sure Fox really is fair and balanced, in an extension of the old Fairness doctrine beyond broadcast media. To me this sounds a lot like destroying the village in order to save it, and I'm especially surprised to see this argument from a progressive at a time when Republicans have the White house, the Senate, and the House.

To answer the question you directed to S. Weasel, I would absolutely include actions of government agencies as covered, even when it's based on nonlegislative rule making. For example, I personally believe that under the first amendment the Federal Elections Commision should not have the power under BCRA to regulate political speech by anyone who doesn't take Federal matching funds...but then my side lost that one in the SCOTUS.

And you guys don't have to call me Mr. Hu. Jim or Jim Hu (to distinguish from other Jims here) is fine. If you'd prefer Prof Velleman and Mr. Ridgely, I apologize for being overly familiar.

Posted by: Jim Hu | Jan 16, 2005 11:27:58 PM

Posted by: oliver

" I can't for the life of me see how Congress made a law abridging Williams' freedom. "

Williams had no freedom to do what he did. He was under contract to his broadcaster to disclose all conflicts of interest and he was supposed to be working only for them during the minutes he was broadcasting--in accordance with universal journalistic norms. The government in effect sewed sedition at a printing press. They interfered with the freedom of the press to operate under the rules it set for itself. If this is government policy, we have a big problem.

Posted by: oliver | Jan 16, 2005 11:41:04 PM

Posted by: Jeff Licquia

There's a slippery-slope problem with restrictions, which is why any restriction on rights has to be tightly defined in our legal system. Given this, applying "freedom of the press" to "an institution" conditional to its "further[ing] the media's instrumental constitutional role", we now have the following questions:

- What makes up "an institution" for the purposes of the Amendment?

- What is the media's "constitutional role"?

Just for grins, we could define "institution" to refer solely to corporations, and the "role" to "preserving a progressive agenda necessary for good governance" and, thus, receive justification for rounding up, say, the Daschle v. Thune bloggers and trying them for sedition, payola, or some other appropriate crime. After all, they are not an "institution", and they arguably hurt the "progressive cause" in their efforts to unseat the former Majority Leader (not to mention their own receipt of campaign money).

Which might warm the hearts of some people, until the conventional wisdom on the "role" changes to, say, "preserving traditional values in society".

So, to me, that second way--where we just interpret the Amendment as telling Congress to keep their filthy hands off private media--sounds a lot safer. Then people who do what Armstrong Williams, Kos, or Daschle v. Thune are purported to have done can be punished in the marketplace for the perception of selling out, regardless of the source of the money in question.

Incidentally, isn't anti-corporatism some kind of thing the "left" is supposed to be keen on? If so, why all the chatter about "institutions" and the regulation of same, all of which tends to corporatize expression? After all, if I have to abide by some set of regulations in order to post to my blog, doesn't that mean that I have to get legal counsel to understand those regulations, and set up a business around my blog to pay for said legal counsel, and so on? Do we really want to tell people that they can be held criminally liable for their viewpoints unless they communicate them under the shield of a corporate legal department?

(Unless you want the press to be entirely a government-run business, in which case I shall sweep my hand over the witness of history and opine, "Are you NUTS?")

Posted by: Jeff Licquia | Jan 16, 2005 11:41:10 PM

Posted by: oliver

So I guess I've just argued against CE's advocacy against regarding the press as composed of the organizations through which it is practiced, because I'm complaining about the organization's rights being violated. Hmmm..... Must think after more sleep.

Posted by: oliver | Jan 16, 2005 11:44:48 PM

Posted by: AlanDownUnder

The fundamental distinction here is between free speech and payola -- and it's a distinction well worth making. Only problem: it's impossible to make the distinction where it counts. Sure the blatant Armstrong Williams stuff is outside the first amendment umbrella, but the world's biggest payola problem is what it's worth to Murdoch to get in bed with Bush. That kind of megapayola is beyond regulation.

Posted by: AlanDownUnder | Jan 17, 2005 12:02:36 AM

Posted by: Jeff Licquia

The government in effect sewed sedition at a printing press. They interfered with the freedom of the press to operate under the rules it set for itself.

Please provide the evidence that the government did any such thing. Some examples of possible evidence: putting a gun to Williams's head at the conference table, threatening an IRS audit, or sending him to Abu Ghraib for a week.

Don't get me wrong: I am perfectly willing to believe that Williams himself broke some of those rules. But I don't see how the blame goes any further than that without some kind of coercion by the government (which, I agree, would be very serious if true).

Posted by: Jeff Licquia | Jan 17, 2005 12:03:11 AM

Posted by: J. Smith

C. Edwin wrote: 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.

I think Dean tried that right before the Scream. Then the media killed him.

The Left gave birth to the monster media we have today. Good luck trying to rein it in.

Posted by: J. Smith | Jan 17, 2005 2:17:15 AM

Posted by: oliver

"'The government in effect sewed sedition at a printing press. They interfered with the freedom of the press to operate under the rules it set for itself.'

"Please provide the evidence that the government did any such thing"

The evidence is the reports they gave him a $240,000 incentive to deceive his employer.

Posted by: oliver | Jan 17, 2005 7:56:34 AM

Posted by: D.A. Ridgely

There are several distinguishable sorts of things going on in Mr. Baker’s argument. (That argument, by the way, is spelled out in much greater detail in a Florida Law Review article he links from his university web page, for those who are interested.)

I was, indeed, being snarky in my own earlier comments, as the clear import of the statement I quoted is that I could not possibly have either intelligent or legitimate reasons for voting as I do (which is not, by the way, to say I voted for Bush.) I do also want to say that the presupposition that the left cares about people is not, itself, to use a phrase others have used in this thread, self-evident.

Snarky or not, however, I was serious in saying that Mr. Hu did not need to be any sort of a constitutional scholar to follow the argument. The issues are questions of public policy, not of constitutional law, per se.

As Mr. Baker acknowledged, there are differing scholarly and judicial opinions as to the import of the free press provision of the first amendment, and they do not depend entirely on whether one is a “strict constructionist” or “original intent” advocate or a “living constitution” proponent in any absolute sense. For what it’s worth, I am inclined to agree with Mr. Baker’s reasoning that on both legal and normative grounds it makes little sense to ascribe intrinsic rights to institutions. People have moral rights and should have legal rights appropriate to protect those moral rights. Institutions (corporations) are not moral agents, per se; they are instrumentalities by which the legitimate interests and rights of human beings are advanced.

Let me add briefly that Mr. Baker goes into some length in his law review article (and I would guess his other scholarly work) to address why anti-trust law may be an inappropriate vehicle by which his particular concerns are likely to be resolved. Simply put, anti-trust exists to avoid or mitigate market concentrations that adversely impact price competition and related economic interests that are distinct from questions whether market concentration in our sources of news and information may have an adverse effect on our institutions of representative democracy. I happen to think anti-trust law is generally bad law, but that is a different topic.

I take Mr. Baker to be arguing, then, what the limits of constitutionally permissible statutory remedies may be if, indeed, media concentration does pose those sorts of risks to the republic. That’s an interesting question for lawyers, I suppose, but before we dwell on it here we might do better to ask if there is sufficient evidence to believe such risks exist.

At minimum, it seems to me Mr. Baker needs to argue either that media concentration has always been a real (not merely potential) problem (i.e., the old Liebling quip that freedom of the press is freedom for those who own the presses) or that it has become or is becoming a problem now. Mr. Baker should say which he believes is the case and why.

Now for the fun part. The dismay of the left over recent electoral trends aside, one could perfectly plausibly argue (1) more ready access to more information from more sources is now available to the American public than has ever been the case in the history of the republic, indeed, in the history of the world, and (2) that it is precisely that fact which has resulted in the shift of political power in the last several decades. That is to say, however abysmally ignorant we enlightened folks may think the hoi polloi may be today, it was even more ignorant in previous generations at least with respect to which political perspective really did best further their legitimate interests.

If that is not the case, the burden of proof should rest on Mr. Baker to demonstrate why, and I suggest that a shift in power between the two major parties will scarcely meet that burden of proof.

[Note to Mr. Hu: I address everyone as Mr. or Ms because I find that facilitates a modicum of equality and politeness in these sorts of discussions. It does, also, help to keep the players straight. Beyond that, I don’t care how I am addressed and I do not mean to give offense by my own, perhaps somewhat affected, practice.]

Posted by: D.A. Ridgely | Jan 17, 2005 8:14:13 AM

Posted by: oliver

"Sure the blatant Armstrong Williams stuff is outside the first amendment umbrella, but the world's biggest payola problem is what it's worth to Murdoch to get in bed with Bush. That kind of megapayola is beyond regulation."

I'm inclined to agree about the biggest problem but think it's worth considering whether it's beyond regulation. How in bed with Bush is Murdoch and why? Murdoch got in bed with communist China too, didn't he? I think the evidence suggests Murdoch's first love is money, and obviously as someone striving for monopoly of a government regulated business (broadcasting under the FCC), it pays for him both to endear himself to the current administration and to advance and/or consolidate the position of the party that opposes regulation of his industry (so long as his business is fending well on its own). But if we could insulate the regulation from rollback or manipulation, Murdoch might have to pursue other strategies for maximizing profits besides tilting news reporting in favor of conservative government.

Posted by: oliver | Jan 17, 2005 8:32:46 AM

Posted by: tom perkins

Oliver, you need more sleep. There is no evidence at all that the governemnt gave him money to decieve his employer. They gave him money to advance the cause of a wholeheartedly bipartisan piece of legislation. In fact, I noted only a very dull roar (more of a sussuration really) when the Clinton Adminstration began paying the (leftist) networks to subtly advance an anti drug message in its recreational programming...

http://archive.salon.com/news/feature/2000/01/13/smart_guy/

Compared to that restrained and abstract debate, the left is currently making much ado about nothing.

After all, isn't it all for the cheeellldrennn.

Except this time, the leftist educational establishment was the ox being gored, I think that must be it.

Yours, TDP, ml, msl, & pfpp

Posted by: tom perkins | Jan 17, 2005 8:56:59 AM

Posted by: oliver

TP, the incident you're talking about didn't have to do with a news show, and it doesn't matter _why_ the government gave him money, only what for.

Posted by: oliver | Jan 17, 2005 9:08:58 AM

Posted by: tom perkins

Oliver, sleep more. This was a commentary show primarily, and only commentary is at issue. The only consequential thing is that the government paid him money to advance a position and one he evidently agreed with previously, a bipartisan one at that--if you have any evidence any government employee intentionally paid him with the aim of him violating his contract with his employer, something no one other than you has claimed, then this:

"The evidence is the reports they gave him a $240,000 incentive to deceive his employer."

is a fair claim.

And the idea that the government will quietly give money to the leftist mainstream media to advance its agenda is settled without much controversy.

Now, there's controversy and alarum on the left, why now?

The big cause for alarm here--for the left--is that money went towards a government initiative which damaged an organ of the leftist agenda, and it went to someone whom the left assumes cannot ethically exist, an African American Conservative. That the gentleman in question seems to have violated a provision of his private contract between himself and his employer--and that is a matter for them to resolve. They have done so.

It is not possible for the government to have violated the First Amendment in any way in this affair, because no one's freedom of speech was interfered with.

Here's the ridiculous thing I've heard this C. Edwin person put forth:

The idea that one of the reasons the left hasn't done well in recent elections is that the public isn't receiving good information from the media, and that necessarily follows from the corporate structure of the media and insufficient government regulation thereof.

In like vein to one of Mr. Ridgely's posts, it is more likely the left is not doing as well as it would like because the public has better information.

Example: The watermelon environmentalist (green on the outside, red on the inside) beloved idea of human induced global warming is a fraud--there is no evidence that any of the increase in global temperatures is caused by anything human beings have done, in fact, the even*1 rise in global temperatures is entirely explained the increase in solar output which has been measured at 0.05 percent per for probably the last thirty years. One of the intended "fixes*2" for this non-problem was the Kyoto treaty, which curiously was rejected out of hand by the Senate in Clinton's administration--but did not become a leftist, mainstream media cause celebre until Bush made that rejection overt as opposed to "only" effectual, which treaty would have had the effect of disrupting and making less competitive the entire American economy, while largely excepting China from its edicts.

*1 The hockey stick model of warming is bogus.

*2 Nothing we've done has had a measurable effect on global temperatures, so we can't "fix" it, what is the real agenda behind hamstringing the American economy. Is that a Conservative or a Leftist Agenda? Which agenda should the American people reject? Which one was rejected in November?

What I hear from Mr. Edwin is that the First Amendment boils down to the right of the American Public to receive the leftist mainstream media's pabulum without competing voices, the elimination of which is the only end served by this concern's being met, that "structural media policy matters ought to be near the top of any progressive legislative agenda."

It is not possible for the First Amendment to protect anything other than an individual right--only individuals in fact exist.

Yours, TDP, ml, msl, & pfpp

Posted by: tom perkins | Jan 17, 2005 10:27:48 AM

Posted by: Terrier

As a Liberal I must say I don't get this argument. What Williams did was clearly dishonest and it could be illegal under some disclosure laws but I can't see that it was unconstitutional. What bothers me is that anyone listens to blowhards like Williams anyway. It used to be that the parties and their special interests openly employed people as spokespersons to promote their interests. Now these same people work for the media outlets. I tell you who I would listen to and respect - even if it was Fox. I would gladly listen to the first news organization that fired all their opinionated talking heads and only ran news. But despite all the 'talk' about wanting just the news, most people are entertained and bolstered by listening to secretly paid parrots.

Posted by: Terrier | Jan 17, 2005 5:18:07 PM

Posted by: Jeff Licquia

The evidence is the reports they gave him a $240,000 incentive to deceive his employer.

I have yet to see any evidence that the money was conditional upon nondisclosure of the contract to anyone: his employers, the public, or anyone else.

If you've got it, oliver, please provide it.

Posted by: Jeff Licquia | Jan 17, 2005 5:54:28 PM

Posted by: D.A. Ridgely

I don't know about the contract between Williams and the media firm the DoE contracted with, but as between that firm and the DoE it is almost certain that there was no such non-disclosure agreement. If there were (that is, if the program office, contracting officer and reviewing attorney were all close to brain-dead) it would not have been enforceable, nor could it have been enforceable as a flow-down provision to Williams, who stood essentially as an independent subcontractor vis a vis the DoE.

Posted by: D.A. Ridgely | Jan 17, 2005 6:04:43 PM

Posted by: D.A. Ridgely

I think I got the standard abbreviation wrong but meant, of course, the Department of Education, not the Department of Energy. (Too many damned departments!)

Posted by: D.A. Ridgely | Jan 17, 2005 6:06:21 PM

Posted by: oliver

"I have yet to see any evidence that the money was conditional upon nondisclosure of the contract to anyone: his employers, the public, or anyone else."

Huh? Could someone tell me where this is coming from?

Posted by: oliver | Jan 17, 2005 7:40:34 PM

Posted by: Mona

D. A. Ridgely writes: People have moral rights and should have legal rights appropriate to protect those moral rights. Institutions (corporations) are not moral agents, per se; they are instrumentalities by which the legitimate interests and rights of human beings are advanced.

Agreed, and this distinction is reflected at law in myriad ways. For example, an employee of a corporation cannot, during either civil litigation or a criminal trial, invoke the 5th Amendment right not to self-incriminate on behalf of the corporation; it is long-settled law that the corporation is endowed with no such right. The employee is going to have to spill whatever s/he knows that might hang the entity. However, that same employee does not lose his or her own right not to incriminate themselves, and so may remain silent about any matter that would expose them personally to criminal penalties.

Turning now to Mr. Edwin's proposed regulation of the press as an entity with no free speech rights. Every single reporter employed by the entity does possess the right to free speech. So, I do not see how Mr. Edwin's proposed regulations could or should, in light of the reporters' personal rights of free speech, achieve much. Even if one wishes to concede that CBS, Inc. has no right to free speech, Dan Rather does, and he has the concomitant right to use any platform given him to express his views, including that of his corporate employer.

But I have to say I'm amused at Mr. Edwin's entire argument, driven as it seems to be by a stupid electorate not voting as he thinks it should. The right and many libertarians who supported Bush spent the last few years, and the last campaign cycle, in an almost perpetual state of slack-jawed astonishment at the naked, anti-Bush and pro-Kerry bias of most of the MSM. The Swift Boat vets held a press conference last May that attracted almost no press coverage. Imagine if the majority of Bush's commanding officers during his TX ANG years, and most of his fellow pilots, had held a press conference condemning him -- can you say, "gleeful feeding frenzy?" Now consider that the Swift Vets were ignored until August, when the blogosphere made it impossible to continue paying them no mind. (Their anti-Kerry ads showed in only three states in August; yet 57% of the public knew of them, as many were logging on to view the ads.)

Then there is Rathergate. Or AP telling an out-and-out lie in which Bush supporters supposedly booed in West Allis, WI when Bush called for prayers for the hospitalized Bill Clinton-- AP had to print a retraction after the online world, complete with tapes of the speech, exposed the falsehood. Those of us not on the left knew crap like that, driven by leftist bias has long, long gone on. It is only now, with the lightning speed at which many bright people can debunk and communicate online, that the press cannot get away with it anymore.

Really, Mr. Edwin, just how sympathetic do you think non-leftists are going to be to your notion that the media is insufficiently pushing "progressive" views? Are you seriously engaging in a "left to right" dicuussion by raising the arguments you do?

You progressives do not need to "regulate" the press; you need to start your own leftist watchdog blogs, and call on Soros and the others who poured millions into anti-Bush 527s to launch the Progressive News Channel. Freedom can be work, but I would not permit you to let the government do your work for you.

Posted by: Mona | Jan 17, 2005 7:41:25 PM

Posted by: oliver

Mona, Mona, Mona, Mona.....

Posted by: oliver | Jan 17, 2005 7:48:32 PM

Posted by: Mona

Uh, yes, oliver?

Posted by: Mona | Jan 17, 2005 8:00:51 PM

Posted by: Will

I'm a conservative, but I love this blog. Interesting arguments and discussions and well-thought out comments.

This post, however, is a total disappointment, as already explained by Jim and DAR.

"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."

I'm speechless.

Posted by: Will | Jan 17, 2005 9:29:21 PM

Posted by: Mona

Will, I know how you feel re: "speechless." That was my reaction when I read Prof. Edwin's post this a.m.

Clearly, this last election has some left-of-center folks ready to use the heavy hand of govt to change the information flow, given how "awful" it is that the voters just are not behaving properly. In addition to Prof Edwin, another example is Cass Sunstein, a repsected law professor at the University of Chicago, who is all aquiver about the nefarious threat the Internet poses to democracy. This long essay is full of back and forth diffidence about the Internet being oh-so-good, but gosh, also oh-so-bad, yet oddly and suspiciously eschewing any "solutions." Until the end. To quote from Prof Sunstein's piece in the Boston Review :

"Websites might use links and hyperlinks to ensure that viewers learn about sites containing opposing views. A liberal magazine's website might, for example, provide a link to a conservative magazine's website, and the conservative magazine might do the same. The idea would be to decrease the likelihood that people will simply hear echoes of their own voices. Of course many people would not click on the icons of sites whose views seem objectionable; but some people would, and in that sense the system would not operate so differently from general interest intermediaries and public forums. Here, too, the ideal situation would be voluntary action. But if this proves impossible, it is worth considering both subsidies and regulatory alternatives. " [emphasis added]

Somehow, if Kerry were being sworn in on the 20th, and the Senate was in the hands of the Democrats, I just don't think we'd be seeing distinguished law professors calling for regulations on speech, designed to "facilitate" democracy. I doubt the Internet, which was so useful to Bush partisans, would be under examination and the object of suggested govt control.

BTW, my use of the 'net does not lead me to the narrowing of viewpoints that has Sunstein so exorcized. Too many of my favorite blogs link to their critics, and also some hold views I disagree with, sometimes strongly. I think this econ prof at Smith College gets it right.

Posted by: Mona | Jan 17, 2005 10:04:57 PM

Posted by: D.A. Ridgely

Mona, as a wag I know once quipped about modern technology, the end of the communist utopia was in sight when the means of reproduction came into the hands of the workers.

Posted by: D.A. Ridgely | Jan 17, 2005 10:22:19 PM

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