Media and Democracy
I spent most of last week speaking at three conferences about the future of the Media in a Democracy. The first was the Tech Policy Summit, which I would characterize as the Establishment Conference. The second was Media Republic, which was the academic and blogger meeting. The third event was Common Cause’s Democracy, Media and Justice Forum, filled with Media activists. The mood at each event was totally different. The Establishment guys were just worried that a new administration doesn’t start regulating the media. The academics and bloggers at Media Republic were so filled with the possibilities of radical change that when I tried to introduce a bit of dystopian realism into the debate, the thought that anything might choke the web seemed to be banished. The activists were all pretty glum, but I felt like they were fighting the last war, so scared were they by the mere specter of Rupert Murdoch.
While waiting to speak on Saturday, I caught up on my back New Yorker’s and found myself entranced by Eric Alterman’s fine essay on the future of the news business. Just when I was surrounded by the despair of the media activists I came across this passage about Walter Lippmann, who ruled the pundit class in the 1920′s.
Lippmann likened the average American-or “outsider,” as he tellingly named him-to a “deaf spectator in the back row” at a sporting event: “He does not know what is happening, why it is happening, what ought to happen,” and “he lives in a world which he cannot see, does not understand and is unable to direct.” In a description that may strike a familiar chord with anyone who watches cable news or listens to talk radio today, Lippmann assumed a public that “is slow to be aroused and quickly diverted . . . and is interested only when events have been melodramatized as a conflict.”
The issues of whether the Broadband Internet will remain a truly democratic media “circulation system” are not as assured as the Media Republic folks believe and not as compromised as the media activists dream. In a small way, Lippmann’s own pessimism reassured me that these battles will go on forever.
I really wish you guys would ask, what today is the distinction between “The Press” and “The Media”. It’s a crucial constitutional distinction, of course, and it looks like technology has loaded an argument for a jurisprudential redefinition of “The Press” viz that taxonomic green sprout of media subdivisions such as the Mainstream Media, the New Media, etc. The outlets proliferating on the newer platforms just don’t appear, to this lay eye, to answer to the description of The Press. And it seems important to parse this, as the Constitution obviously contemplates a press with specific liberties and duties, a press vital to the survival of the Republic. Where is that press now? To whom does that body of law apply? Apply how? And with what consequences?
Hugh-You have a good point here, but I’m not sure I’m comfortable with your distinction. I would assume the specific liberties you are granting the press is their first amendment freedoms. Correct? Do these freedoms apply to Entertainment Tonight in it’s celebrity news gathering?
Where do feel the line should be drawn?
Yes, I do mean the First Amendment freedoms as they’re illuminated by immediately current case law. The conventional Press (which estate I still habitually capitalize, out of respect I guess) worked so bravely for so long to achieve a legal standard of civil liberty bordering on license—for example, by litigating to make it practically impossible to defame a public figure no matter how tortious the harm—and now it’s looking like they achieved that heady latitude only to see it abused by new media and by mere travesties of the now portable Old Media brands that can in no conception I could conjure, ever meet a just definition of “The Press”. We’ve got cable news networks and very upstream newspapers that so constantly starved of content, by the intensifying competition and the obliteration of the news cycle, that they routinely republish, as hard news, truth claims they pull off of e.g. 527 sites—often without attribution nor any attempt to verify or source the claims. Then these outlets become the feeders of the downstream outlets, and…I dunno, Jon, it just feels like the constant refilling of the Colorado with reconstituted toilet flush until it poisons Mexico.
There has got to be a Press. And it seems that it’s got to be identified anew, and a bulwark built around it from which it can fend off not only marauding feds but the thieving cyber-Vandals. And please do ask some colleagues in your fine law faculty, but I think that the jurisprudential route is the right way to structure a conversation about this, and I cannot think of a better university than USC to be stimulating such a conversation. In other days Columbia would have been another natural convener, but frankly they’re too adrift of late and they just wouldn’t carry the weight of your campus on this matter. It needs to be a private university, and I think yours would be the best for this.
I’m tempted to apply something like the three-prong test from Lemon v. Kurtzman to establish what is and is not a preponderantly journalistic exercise of the Press, as the Press is contemplated in the Constitution. But it’s looks to me like a pretty thorny jurisprudential question, this modernizing of the definition of “press”. I mean, presumably that’s why the supermarket tabloids run perennial features on breast cancer awareness: to establish that they do not exclusively report breaking news like the old story about Taplin being the love child of a Bigfoot abductee, so that in guaging their social value one must weigh them on the whole. The Entertainment Law and the First Amendment people, could tell you e.g. whether the existing legal dividing line between the Press and the entertainment sector is equal to the new developments. And of course they could indicate whether the controlling definitional criteria for “press” are sufficient to account for the proliferating pseudo-journalistic outlets. And I’m sure you’d have questions in this regard for the IP esquires also. The metastasizing plagiarism alone, under the new regime, largely obviates the role of the Press in the Republic.
I’m reminded of the point about Roe being a stopgap decision that would have to be revisited every time neonatal tech pushed back the point of viability ever closer to the first trimester. Once again technology is the driver. Even of the First Amendment.
Hughvic, that is a very intriguing post. In defining something, we limit it. I think that is a Taoist saying (bastardized and murdered to be sure).
I cannot conceive of a way that one could define the press, and not at the same moment limit the abilities or potential of citizen journalism.
Now, on the one hand, I concur most certainly with your posit of rampant plagiarism, I also think that one of the things that might end up saving the Mantle of the Press if not the Estate of the Press, would be the advent and the rise of citizen journalism.
An argument could be made that journalists are trained professionals, involved in a line of work just as demanding of a level of professionalism as doctors, lawyers, etc. It is my opinion however, that the direction and output of our collective Fourth Estate has been arcing towards the drain for some time now, so this might not be a reasonable defense to take.
Good stuff for the brain to chew on for a Tuesday morning. Thanks for the input, and I will be curious how the conversation goes from here.
- Zhirem
Zhirem, you’ve expressed beautifully that which is too obviously still inchoate in me. It’s little more than a hunch, but this feels like an exceedingly jurisprudential question of import, and I fear that if it isn’t resolved on terms favorable to the democratization of the Press, the courts will resolve it unfavorably. There’s nonfeasance, and ideological malfeasance, as well as the unutterably excessive plagiarism. That Subject of the First Amendment, the Press, has got to be defined somehow in controlling case law. But I can think only of only of dicta consisting of e.g. the courts’ specification of the attributes of the free press and the function and duties that purportedly informed the Framers’ intent. So you’ve nailed it: would the promulgation of a constitutional doctrine more clearly delimiting the Estate be possible or advisable, or is the Estate already of the House of Usher?
This distinction between “press” and “media” involves opening up a really rather nasty set of conceptual worms. It relates to a change in culture that our our consciousness has not really kept up with. I’m not sure if the purely theoretical or definitional distinctions operative here can even be elaborated briefly …but the point to my mind is that “the press” as news-and-analysis-of-news-transmission, has now merged in a complex and virtually indeterminate way with the vast interlocking system of communicative technologies covered by the term “the media.” The media is now a thousand-tentacled octopus. What used to be the stand-alone self-sufficient body, “the press” is a relatively small and dare one admit–relatively insignificant part of that octopus. The problem is that “the media” has become so vast, so productive of new fields of force, that its power has virtually nullified if not destroyed what used to be “the press.” Fox TV and MSNBC are so hugely a part of the entertainment process of something vast called The Media that thin king about them or analyzing about them as part of the Press seems wildly out of date. You will see that the complexity of the relations between these terms makes the whole question of relative First Amendment rights almost nonsensical to ask…because the two terms “the media” and “the press” are now occupying completely discontinuous terms of discourse. The problem is that I’m not sure that the discrete phenomenon known as “The Press” has very long to live.
Hughvic, I don’t know about beautifully encapsulated, but I was attempting to put words to my thoughts on the subject. I think it is valid and certainly worthy of discussion, and I am hauntingly reminded of the farce that is software patents. This really ought to be handled by copyright, as opposed to patent. For example, Amazon’s One-Click-Purchase patent. It is debatable whether or not that deserves a patent, or whether it is a service (akin to saying I want to patent moving passengers and freight between two cities, when this could be handled by any number of means: trains, buses, airplanes, etc.). There was a shell company purchased within the last 8 years for the sole purpose of filing lawsuits against *ANY* web site that served dynamic content. Apparently the defunct software company held a patent on dynamic content, and then a lawfirm bought them with the singular goal of suing anyone they thought they could intimidate legally into settling with them. I have not heard about how well they have fared when they have gone up against big players with (for instance) Oracle’s legal team backing the defendant up.
I worry that a jurisprudence approach might lead to an abomination of a birthing, in that the definition is either convoluted and contorted, or far too simplistic to be efficacious. All that with the child being born on a grease-laden steep slope, leaves me nonplussed.
But, with that said, for legality and jurisprudence going forward, I don’t see how it can be avoided. Well, any more successfully than it has been avoided up to this point…
Larry Gross: Very good points on distinctions between Media and Press. Certainly viable, and also worth discussion. The purview of the media is really entertainment (mostly). The purview of the Press is education and information (I would argue). The lines have been blurred to the point of complete obfuscation. There is no disclosure when bought-and-paid-for pundits extol the virtues of their shadowy bosses (both corporate and private entities), etc.
- Zhirem
Zhirem,
I didn’t think you’d merely encapsulated; I think you expanded and clarified quite nicely. I agree with you and with Larry Gross about the extreme downside of the prospect of opening a jurisprudential Pandora’s Box, but—not to be arch about it—it was the Framers who required us to keep up our “professional development” on the subject of the Press, and to make their states’ charter agreement sustain a Fourth Estate that in turn could help to sustain the Republic. I tend to feel that the burden of the argument, therefore, is upon anyone who would advocate for apathetic neglect of a First Amendment culture and commerce seem to have left behind. Moreover, if the Press already is dead—or is at least as moribund as Larry Gross suggests it may be—then the First Amendment is silent on the media Hulk in the shredded diapers of the stillborn Press baby, such that the Hulk may be legislated into submission without Constitutional protection.
So we could consult outside specialists, as it were, but it looks as though no matter how many opinions one gets from pathologists like us, still an operation of some sort needs to take place. It may be the most advanced and delicate of neurosurgical procedures, or it may be simply an obligatory autopsy, but whatever the case, it would seem that our patrimony includes the charge that we operate in a time such as this.
So how about sending for the jurisprudential “Pros from Dover” to join a multidisciplinary team?
Hughvic, I have to agree with you. Something needs to be done, by a collective of individuals *much* smarter and wiser than myself. Also a very good point that the Founding Fathers intended for us to keep up with our jurisprudence. You are absolutely correct. Therefore, I support your idea about sending the “Pros from Dover”.
The thing is, I *want* a Press. I really do. I think the majority of Americans *really* do. I don’t think what currently passes as The Press has been sustaining and defending our Grand Experiment of Our Nation. I want a watchdog. I want a myriad of utterly brave and utterly incorrigible journalists to take the sunlight to the darkest corners of our government, of our society, of our Citizenry.
You are correct, in that it is quite likely we need to have a convening of great minds, to puzzle out the definitions, and to suggest solutions or resolutions, and to file an amicus brief (?) with whatever body will be taking this on. It certainly will not be an easy task, but the successful conclusion of it would clear the way for insuring that there would be a Press, there would be Media, and the Citizenry would know the difference, the value and most importantly the price.
- Zhirem
Maybe we need a Constitutional Convention to wrestle with a lot of these points.
http://en.wikipedia.org/wiki/Convention_to_propose_amendments_to_the_United_States_Constitution
A Convention call would be a good hammer to hold over the courts as they dispose of the kind of briefs amicae suggested by Zhirem. No bluffing; just, “either this, or else that”. As in a social contract. Of a kind.
[...] I have faulted Lippmann for his cynical believe in the role of elites to “move the mob”, his analysis is not [...]
[...] of Woodrow Wilson’s Committee on Public Information, honed by the early propaganda work of Walter Lippman was alive and well. Lippmann assumed a public that “is slow to be aroused and quickly diverted . [...]