Sunday, June 19, 2011

The FCC's "Future of the Media" Report: More Madisonian Than Madison Avenue

When the FCC's "Future of the Media" project was announced, I expressed skepticism concerning the need for the FCC to embark on a wide-ranging study of the media. And I expressed concern that the study -- and what I supposed might be proposed recommendations for new regulations and government subsidies – would have serious First Amendment implications that would be minimized. Here is a snippet from what I wrote in an April 2010 blog a few weeks after the project's launch:

"You might think that in an age of media abundance the justification for government support of, and involvement with, the media would be reduced, not heightened. Certainly, this view would be more consistent with my understanding of First Amendment sensitivities. But, rather perversely, media abundance is viewed by some as a rationale justifying more government support and direction of public media."

I was invited to testify at one of the public hearings on "Public and Other Noncommercial Media in the Digital Age," and my April 30, 2010 testimony is here.

The FCC has now released its 450+ page study, prepared under the leadership and direction of Steven Waldman, its principal author, under the title, "The Information Needs of Communities." When I learned that the report was going to be released under this more academic-like title, rather than the more grandiose "Future of the Media" moniker, I suspected that perhaps Madison Avenue-types were laying the groundwork to downplay recommendations for far-reaching regulatory and government policy changes.

With the caveat that I only have had an opportunity to review the Executive Summary, which itself is 25 pages, and that I and other FSF scholars may have more to say in the future, I am pleased to acknowledge that the report appears to be much more Madisonian that Madison Avenue. Although I certainly don't agree with all the report's recommendations, I am happy to concede that the report generally does not propose intrusive new media regulations or expanded government subsidies of "public media".

Here I only want to present two short excerpts that capture key elements of the general tenor of the report:

"Although each citizen will have a different view on which information is important—and who is failing at provid­ing it—Americans need to at least come together around one idea: that democracy requires, and citizens deserve, a healthy flow of useful information and a news and information system that holds powerful institutions accountable."

"Our basic conclusion: with the media landscape shifting as fast as it has been, some current regulations are out of sync with the information needs of communities and the fluid nature of modern local media markets. In crafting recommendations, this report started with the overriding premise that the First Amendment circumscribes the role government can play in improving local news. Beyond that, sound policy would recognize that government is simply not the main player in this drama."

I agree wholeheartedly with both statements. For our democracy to thrive – and I would say, survive – we need a healthy flow of information and news to hold powerful institutions, especially government at all levels, accountable. And as I emphasized in my testimony, the First Amendment circumscribes the role government can play.

At bottom, I still have doubts that such a mammoth government-funded effort was needed, when foundations, universities, and independent academics produce so much research on the subject matter of the report. Nevertheless, I want to commend Steve Waldman, the project leader, and his team, for the effort and dedication they brought to the work.

And I especially want to commend Mr. Waldman for what I came to see, during the study preparation process, as his open-mindedness, his genuine desire to seek out as much information as possible from diverse perspectives, and his sensitivity to the First Amendment concerns raised by government regulation or support of the media. Perhaps I should not have been surprised in this last regard. Mr. Waldman emphasized his appreciation for First Amendment sensitivities when he delivered a keynote last year at a Free State Foundation seminar.

And after I read Mr. Waldman's well-regarded book, "Founding Faith – How Our Founding Fathers Forged a Radical New Approach to Religious Liberty," an insightful study concerning the development of the First Amendment's religion clauses, I came away with the sense he possesses a real appreciation for the Founder's purposes in adopting the First Amendment's protections. In Federalist No. 48, James Madison famously stated: "It will not be denied that power is of an encroaching nature, and it ought to be effectively restrained from passing the limits assigned to it." If you read Mr. Waldman's chapters on Madison, you will understand what I mean when I say his "Information Needs" report is cast in a Madisonian frame.

Finally, I should add that FCC Chairman Julius Genachowski deserves credit for allowing Mr. Waldman the leeway to prepare the study the way he did, and to draw the conclusions he did. I am not privy to any "inside baseball" here, but it is no secret that Commissioner Michael Copps and outside pro-regulation groups wanted a report that recommended much more government regulation and subsidization of the media. Without knowing exactly what the Chairman's role was in the preparation of the final report and recommendations, it was released on his watch, and, in the respects I have mentioned, the effort redounds to his credit.