The endless apocalyptic rhetoric surrounding Net Neutrality and many other tech policy debates proves there’s no downside to gloom-and-doomism as a rhetorical strategy. Being a techno-Jeremiah nets one enormous media exposure and even when such a person has been shown to be laughably wrong, the press comes back for more. Not only is there is no penalty for hyper-pessimistic punditry, but the press actually furthers the cause of such “fear entrepreneurs” by repeatedly showering them with attention and letting them double-down on their doomsday-ism. Bad news sells, for both the pundit and the press.

But what is most remarkable is that the press continues to label these preachers of the techno-apocalypse as “experts” despite a track record of failed predictions. I suppose it’s because, despite all the failed predictions, they are viewed as thoughtful & well-intentioned. It is another reminder that John Stuart Mill’s 1828 observation still holds true today: “I have observed that not the man who hopes when others despair, but the man who despairs when others hope, is admired by a large class of persons as a sage.”

Additional Reading:

• Regarding the Use of Apocalyptic Rhetoric in Policy Debates (10/29/14)
• The Problem with “Pessimism Porn” (5/23/14)
• Journalists, Technopanics & the Risk Response Continuum (7/15/12)
• How & Why the Press Sometimes “Sells Digital Fear” (4/8/12)
• law review article: “Technopanics, Threat Inflation, and the Danger of an Information Technology Precautionary Principle” (2013)

Thirteen years ago I penned an essay entitled, “Your Soapbox is My Soapbox!” It was condensed from a 2005 book I had released at the same time called Media Myths. My research and writing during that period and for fifteen years prior to that was focused on the dangers associated with calls by radical Left-leaning media scholars and policy activists for a veritable regulatory revolution in the way information and communication technology (ICT) platforms were operated. They pushed this revolution using noble-sounding rhetoric like “fairness in coverage,” “right of reply,” “integrity of public debate,” “preserving the public square,” and so on. Their advocacy efforts were also accompanied by calls for a host of new regulatory controls including a “Bill of Media Rights” to grant the public a litany of new affirmative rights over media and communications providers and platforms.

But no matter how much the so-called “media access” movement sought to sugarcoat their prescriptions, in the end, what those Left-leaning scholars and advocates were calling for was sweeping state control of media and communications technologies and platforms. In essence, they wanted to socialize private soapboxes and turn them into handmaidens of the state.

Here’s the way I began my old “soapbox” essay:

Imagine you built a platform in your backyard for the purpose of informing or entertaining your friends of neighbors. Now further imagine that you are actually fairly good at what you do and manage to attract and retain a large audience. Then one day, a few hecklers come to hear you speak on your platform. They shout about how it’s unfair that you have attracted so many people to hear you speak on your soapbox and they demand access to your platform for a certain amount of time each day. They rationalize this by arguing that it is THEIR rights as listeners that are really important, not YOUR rights as a speaker or the owner of the soapbox. That sort of scenario could never happen in America, right? Sadly, it’s been the way media law has operated for several decades in this country. This twisted “media access” philosophy has been employed by federal lawmakers and numerous special interest groups to justify extensive and massively unjust regime of media regulation and speech redistributionism. And it’s still at work today.

That was 2005. What’s amazing today is that this same twisted attitude is still on display, but it is conservatives who are now the ring-leaders of the push to socialize soapboxes!

Conservatives were squarely against such soapbox socialism when I penned my earlier essay and book. During that time, they feared that the media access movement would devolve into a political witch hunt aimed at singling them out and eliminating the many new popular personalities and platforms that offered the public Right-of-center voices and viewpoints.

But it’s a new day in America and conservatives have now flipped this script and are using the media access movement playbook to call for massive state control over private media and technology platforms in the name of eradicating supposed “bias” against them and their views.

Apparently everyone’s a Media Marxist these days, beginning with President Trump! Claiming that there is some sort of grand anti-conservative conspiracy afoot, President Trump and many of his defenders are pushing for greater government control of the media and tech companies. The White House is apparently “taking a look” at the idea of regulating Google because it is part of the “fake news media.” (Over at TechDirt, Zach Graves has a thorough debunking of such nonsense.) Of course, this follows Trump’s seemingly endless jihad against older media outlets, especially large newspapers and cable news enterprises that he disfavors.

Meanwhile, a new White House “We the People” petition to “Protect Free Speech in the Digital Public Square” already has almost 40,000 signatures. “The internet is the modern public square,” the manifesto begins. It continues on to claims that “the free and open internet has become a controlled, censored space, monopolized by a few unaccountable corporations” and that “[b]y banning users from their platforms, those corporations can effectively remove politically unwelcome Americans from the public square.” It concludes with the following call to action: “The President should request that Congress pass legislation prohibiting social media platforms from banning users for First Amendment-protected speech. The power to block lawful content should be in the hands of individual users – not [Facebook’s] Mark Zuckerberg or [Twitter’s] Jack Dorsey.”

Such rhetoric and proposals are indistinguishable from what the Left-leaning media access advocates were calling for in the past.

Is “media Marxism” too strong a term to use in this regard? Well, the textbook definition of Marxism involves state control of the means of production. In the case of information platforms, control of the means of production would involve the forcible surrender of some combination of the underlying editorial control that the owners have over their speech platforms as well as potential state control of the algorithms and other technical foundations of digital platforms.

And so let’s hear from former White House strategist Steve Bannon commenting to CNN on what he thinks needs to be done next:

>> Bannon said Big Tech’s data should be seized and put in a “public trust.” Specifically, Bannon said, “I think you take [the data] away from the companies. All that data they have is put in a public trust. They can use it. And people can opt in and opt out. That trust is run by an independent board of directors. It just can’t be that [Big Tech is] the sole proprietors of this data…I think this is a public good.” Bannon added that Big Tech companies “have to be broken up” just like Teddy Roosevelt broke up the trusts.” >> Bannon attacked the executives of Facebook, Twitter and Google. “These are run by sociopaths,” he said. “These people are complete narcissists. These people ought to be controlled, they ought to be regulated.” At one point during the phone call, Bannon said, “These people are evil. There is no doubt about that.” >> Bannon said he thinks “this is going to be a massive issue” in future elections. He said he thinks it will probably take until 2020 to fully blossom as a campaign issue, explaining, “I think by the time 2020 comes along, this will be a burning issue. I think this will be one of the biggest domestic issues.” Bannon said the “#MeToo movement has brought the issue of consent front and center” and argued that “this is going to bring the issue of digital consent front and center.”

On one hand, Bannon no longer works in Trump’s White House, so perhaps it isn’t fair to say that his views and prescriptions are tantamount to the President’s views. But Bannon was saying similar things while he was in the White House with Trump and the President’s surrogates have been continuously upping their rhetoric to suggest that they are serious about moving against the ICT sector in some fashion.

So, apparently we now inhabit a Bizarro World where the Hard Right has replaced the Hard Left in the U.S. in the never-ending drama of speech control. In past decades, some conservatives favored media regulation, of course. In fact, in the heyday of the Fairness Doctrine, many leading conservative voices insisted that regulation was needed to counter supposed “liberal bias” in broadcasting. It was only when Rush Limbaugh and many other conservatives came along in the late 1980s / early 1990s and gained a significant audience on talk radio that conservative sympathy for the Fairness Doctrine completely disappeared. In fact, conservatives then became vociferous critics of the Doctrine and demanded a stake be driven through its heart. Eventually, they did just that.  But even during the time when some conservative pundits supported the Fairness Doctrine, that support was fairly limited and tepid. And you almost never heard conservatives supporting radical state control of the press as a solution to perceived bias.

Yet, here we are now with Trump and many of his allies floating proposals to treat information platforms as the equivalent of essential facilities or “public squares” which would have some sort of amorphous fiduciary obligations or “public interest” responsibilities to serve the public however politicians and bureaucrats in Washington see fit. That could entail anything from “search neutrality” to a new Fairness doctrine / right of reply mandate to a full-blown antirust breakup.

Like the Hard Left before them, the Hard Right has apparently come to view ICT platforms as just another part of the socio-political superstructure to be controlled from above to achieve their own ends. Trump and his allies have repeatedly referred to the press as the “enemy of the American people.” (His latest tweet using that phrase has already racked up almost 84,000 likes.) That’s totalitarian talk, and it softens the ground for the sort of takeover that Bannon and others desire. The “Fake News” that President Trump and his surrogates decry includes not just traditional journalism outlets but all forms of information production and dissemination. Trump wants them all to bend the knee before him. Because they won’t, apparently they are to be punished.

If Trump and his allies get their way, America would join the ranks of repressive states around the globe who seek to control speech platforms for their own ends. That sort of totalitarian impulse is repugnant to the values of a democratic republic that values open inquiry, freedom of speech and expression, press freedom, and the freedom to know about and report on the world around us.

As I concluded my earlier “soapbox” essay back in 2005:

This arrogant, elitist, anti-property, anti-freedom ethic is what drives the media access movement and makes it so morally repugnant. Freedom doesn’t begin by fettering the press with more chains, it begins by removing those that already exist and then erecting a firm wall between State and Press. The media access crowd has succeeded in breaching that wall with seven decades of misguided and unjust regulation of the press. The movement back toward a truly free press begins by understanding the error in their thinking, rejecting that reasoning, and then embracing, once again, the original vision of the First Amendment as a bulwark against government control of speech and the press.

In closing, this is a good moment for those on the moderate Left to reflect upon what they have enabled by sketching out and defending this intellectual blueprint for media control. The Left helped make the bed that Donald Trump is now getting cozy in. Many Hard Left scholars repeatedly told us that it was with the very best of intentions that they advocated more state control of the ICT sectors. There’s no bringing those radicals around to seeing the mistake they made. They will just double down on their proposals and claim that once “their team” gets back in power, all will be fine. It is utter poppycock, but they won’t care one bit.

The moderate Left, however, should be more sensible than that because they have been the great defenders of the First Amendment and freedom of speech in modern American history. And they understand that the danger of the slippery slope is very real when it comes to speech controls and how they might undermine our First Amendment heritage. When the moderate Left allows radical media theorists and regulatory advocacy groups to push extreme media control measures, however, they are creating speech control mechanisms that are very susceptible to being overtaken by their enemies and then used against them later on. And now we have a President who is doing exactly that.

It is a truly horrifying moment in the history of the American Republic. Hopefully we get through it and learn something from it.

The use of unmanned aircraft systems, or “drones,” for private and commercial uses remains the subject of much debate. The issue has been heating up lately after Congress ordered the Federal Aviation Administration (FAA) to integrate UASs into the nation’s airspace system by 2015 as part of the FAA Modernization and Reform Act of 2012.

The debate has thus far centered mostly around the safety and privacy-related concerns associated with private use of drones. The FAA continues to move slowly on this front based on a fear that private drones could jeopardize air safety or the safety of others on the ground. Meanwhile, some privacy advocates are worried that private drones might be used in ways that invade private spaces or even public areas where citizens have a reasonable expectation of privacy. For these and other reasons, the FAA’s current ban on private operation of drones in the nation’s airspace remains in place.

But what about the speech-related implications of this debate? After all, private and commercial UASs can have many peaceful, speech-related uses. Indeed, to borrow Ithiel de Sola Pool’s term, private drones can be thought of as “technologies or freedom” that expand and enhance the ability of humans to gather and share information, thus in turn expanding the range of human knowledge and freedom.

A new Mercatus Center at George Mason University working paper, “News from Above: First Amendment Implications of the Federal Aviation Administration Ban on Commercial Drones,” deals with these questions.  This 59-page working paper was authored by Cynthia Love, Sean T. Lawson, and Avery Holton. (Love is currently a Law Clerk for Judge Carolyn B. McHugh in 10th Circuit U.S. Court of Appeals. Lawson and Holton are affliated with the Department of Communication at the University of Utah.)

“To date, little attention has been paid to the First Amendment implications of the [FAA] ban,” note Love, Lawson, and Holton. Their article argues that “aerial photography with UASs, whether commercial or not, is protected First Amendment activity, particularly for news-gathering purposes. The FAA must take First Amendment-protected uses of this technology into account as it proceeds with meeting its congressional mandate to promulgate rules for domestic UASs.” They conclude by noting that “The dangers of [the FAA’s] regulatory approach are no mere matter of esoteric administrative law. Rather, as we have demonstrated, use of threats to enforce illegally promulgated rules, in particular a ban on journalistic use of UASs, infringes upon perhaps our most cherished constitutional right, that of free speech and a free press.”

The authors note that we already have a well-established set of principles that guide how government may set content-neutral regulations related to the time, place, or manner for how certain technologies can be used. Unfortunately, the FAA doesn’t seem to be paying any attention to this time-tested jurisprudence. As the authors note:

Because the airspace within a public forum should itself be considered a public forum, the government may only restrict the journalistic use of UAS technology with content-neutral regulations of the time, place, or manner of such use. Such regulations must be “justified without reference to the content of the regulated speech,” be “narrowly tailored to serve a significant government interest,” and “leave open ample alternative channels of communication.” The FAA’s blanket ban on commercial use fails to meet this test. The FAA’s ban is not a reasonable time, place, or manner restriction.

This new paper by Love, Lawson, and Holton will hopefully inform future policymaking and judicial activity on this front and, if nothing else, make the FAA to realize that it is not above the law–and in this case the First Amendment–when it comes to drone policy. Please read the entire paper for more details. It is exceptionally well done and could be a real game-changer in these debates.

P.S. I plan on attaching Love, Lawson, and Holton’s paper to my filing to the FAA next week in its proceeding on model aircraft regulation. The filing date for that proceeding was extended this summer and comments are now due next week. I will post my filing here shortly. The Mercatus Center filed comments with the FAA earlier about the prompt integration of drones into the nation’s airspace. You can read those comments here. You can also read Eli Dourado’s excellent Wired editorial on the matter here and here’s a video of me talking about these issues on the Stossel show a few months ago.

I’ve spent a lot of time here through the years trying to identify the factors that fuel moral panics and “technopanics.” (Here’s a compendium of the dozens of essays I’ve written here on this topic.) I brought all this thinking together in a big law review article (“Technopanics, Threat Inflation, and the Danger of an Information Technology Precautionary Principle”) and then also in my new booklet, “Permissionless Innovation: The Continuing Case for Comprehensive Technological Freedom.”

One factor I identify as contributing to panics is the fact that “bad news sells.” As I noted in the book, “Many media outlets and sensationalist authors sometimes use fear-based tactics to gain influence or sell books. Fear mongering and prophecies of doom are always effective media tactics; alarmism helps break through all the noise and get heard.”

In line with that, I want to highly recommend you check out this excellent new oped by John Stossel of Fox Business Network on “Good News vs. ‘Pessimism Porn‘.”  Stossel correctly notes that “the media win by selling pessimism porn.” He says:

Are you worried about the future? It’s hard not to be. If you watch the news, you mostly see violence, disasters, danger. Some in my business call it “fear porn” or “pessimism porn.” People like the stuff; it makes them feel alive and informed. Of course, it’s our job to tell you about problems. If a plane crashes — or disappears — that’s news. The fact that millions of planes arrive safely is a miracle, but it’s not news. So we soak in disasters — and warnings about the next one: bird flu, global warming, potential terrorism. I won Emmys hyping risks but stopped winning them when I wised up and started reporting on the overhyping of risks. My colleagues didn’t like that as much.

He continues on to note how, even though all the data clearly proves that humanity’s lot is improving, the press relentlessly push the “pessimism porn.” He argues that “time and again, humanity survived doomsday. Not just survived, we flourish.” But that doesn’t stop the doomsayers from predicting that the sky is always set to fall. In particular, the press knows they can easily gin up more readers and viewers by amping up the fear-mongering and featuring loonies who will be all too happy to play the roles of pessimism porn stars. Of course, plenty of academics, activists, non-profit organizations and even companies are all too eager to contribute to this gloom-and-doom game since they benefit from the exposure or money it generates.

The problem with all this, of course, is that it perpetuates societal fears and distrust. It also sometimes leads to misguided policies based on hypothetical worst-case thinking. As I argue in my new book, which Stossel was kind enough to cite in his essay, if we spend all our time living in constant fear of worst-case scenarios—and premising public policy upon them—it means that best-case scenarios will never come about.

Facts, not fear, should guide our thinking about the future.

______________________

Related Reading:

• Journalists, Technopanics & the Risk Response Continuum (July 15, 2012)
• How & Why the Press Sometimes “Sells Digital Fear” (April 8, 2012)
• danah boyd’s “Culture of Fear” Talk (March 26, 2012)
• Prophecies of Doom & the Politics of Fear in Cybersecurity Debates (Aug. 8., 2011)
• Cybersecurity Threat Inflation Watch: Blood-Sucking Weapons! (March 22, 2012)

[Based on forthcoming article in the Minnesota Journal of Law, Science & Technology, Vol. 14 Issue 1, Winter 2013, http://mjlst.umn.edu]

I hope everyone caught these recent articles by two of my favorite journalists, Kashmir Hill (“Do We Overestimate The Internet’s Danger For Kids?”) and Larry Magid (“Putting Techno-Panics into Perspective.”) In these and other essays, Hill and Magid do a nice job discussing how society responds to new Internet risks while also explaining how those risks are often blown out of proportion to begin with.

Both Hill and Magid are rarities among technology journalists in that they spend more time debunking fears rather than inflating them. Whether its online safety, cybersecurity, or digital privacy, we all too often see journalists distorting or ignoring how humans find constructive ways to cope with technological change. Why do journalists fail to make that point? I suppose it is because bad news sells–even when there isn’t much to substantiate it.

I’ve spent a lot of time thinking about “moral panics” and “technopanics” in recent years (here’s a compendium of roughly two dozen essays I’ve penned on the topic) and earlier this year I brought all my work together in an 80-page paper entitled, “Technopanics, Threat Inflation, and the Danger of an Information Technology Precautionary Principle.”

In that paper, I identified several reasons why pessimistic, fear-mongering attitudes often dominate discussions about the Internet and information technology. I began by noting that the biggest problem is that for a variety of reasons, humans are poor judges of risks to themselves or those close to them. But I identified other explanations for why human beings are predisposed toward pessimism and are risk-averse, including:

• Generational Differences
• Hyper-Nostalgia, Pessimistic Bias, and Soft Ludditism
• Bad News Sells: The Role of the Media, Advocates, and the Listener
• The Role of Special Interests and Industry Infighting
• Elitist Attitudes among Academics and Intellectuals
• The Role of “Third-Person-Effect Hypothesis”

You can read my paper for fuller descriptions of each point. But let me return to my primary concern here regarding the role that the media plays in the process. It seems logical why journalists inflate fears: In an increasingly crowded and cacophonous modern media environment, there’s a strong incentive for them to use fear to grab attention. But why are we, the public, such eager listeners and so willing to lap up bad news, even when it is overhyped, exaggerated, or misreported?

“Negativity bias” certainly must be part of the answer. Michael Shermer, author of The Believing Brain, notes that psychologists have identified “negativity bias” as “the tendency to pay closer attention and give more weight to negative events, beliefs, and information than to positive.” Negativity bias, which is closely related to the phenomenon of “pessimistic bias,” is frequently on display in debates over online child safety, digital privacy, and cybersecurity.

But even with negativity bias at work, what I still cannot explain is why so many of these inflated fears exists when we have centuries of experience and empirical results that prove humans are able to again and again adapt to technological change. We are highly resilient, adaptable mammals. We learn to cope.

In my paper, I try to develop a model for how humans deal with new technological risks. I identify four general groups of responses and place them along a “risk response continuum”:

1. Prohibition: Prohibition attempts to eliminate potential risk through suppression of technology, product or service bans, information controls, or outright censorship.
2. Anticipatory Regulation: Anticipatory regulation controls potential risk through preemptive, precautionary safeguards, including administrative regulation, government ownership or licensing controls, or restrictive defaults. Anticipatory regulation can lead to prohibition, although that tends to be rare, at least in the United States.
3. Resiliency: Resiliency addresses risk through education, awareness building, transparency and labeling, and empowerment steps and tools.
4. Adaptation: Adaptation involves learning to live with risk through trial-and-error experimentation, experience, coping mechanisms, and social norms. Adaptation strategies often begin with, or evolve out of, resiliency-based efforts.

For reasons I outline in the paper, I believe that it almost always makes more sense to use bottom-up resiliency and adaptation solutions instead of top-down anticipatory regulation or prohibition strategies. And, more often than not, that’s what we eventually opt for as a society, at least when it comes to information technology. Sure, you can find plenty of examples of knee-jerk prohibition and regulatory strategies being proposed initially as a response to an emerging technology. In the long-run, however–and sometimes even in the short-run–we usually migrate down the risk response continuum and settle into resiliency and adaptation solutions. Sometimes we adopt those approaches because we come to understand they are more sensible or less costly. Other times we get there only after several failed experiments with prohibition and regulation strategies.

I know I am being a bit too black and white here. Sometimes we utilize hybrid approaches–a bit of anticipatory regulation with a bit of resiliency, for example. We use such an approach for both privacy and security matters, for example. But I have argued in my work that the sheer velocity of change in the information age makes it less and less likely that anticipatory regulation strategies–and certainly prohibition strategies–will work in the long-haul. In fact, they often break down very rapidly, making it all the more essential that we begin thinking seriously about resiliency strategies as soon as we are confronted with new technological risks. Adaptation isn’t usually the correct strategy right out of the gates, however. Just saying “learn to to live with it” or “get over it” won’t work as a short-term strategy, even if that’s exactly what will happen over the long-term. But resiliency strategies often help us get to adaption strategies and solutions more quickly.

Anyway, back to journalists and fear. It strikes me that sharp journalists like Hill and Magid just seem to get everything I’m saying here and they weave these insights into all their reporting. By why do so few others? Again, I suppose it is because the incentives are screwy here and make it so that even those reporters who know better will sometimes use fear-based tactics to sell copy. But I am still surprised by how often even respected mainstream media establishments play this game.

In any event, those others reporters need to learn to give humans a bit more credit and acknowledge that (a) we often learn to cope with technological risks quite rapidly and (b) sometimes those risks are greatly inflated to begin with.

Yesterday on TechCrunch, Josh Constine posted an interesting essay about how some in the press were “Selling Digital Fear” on the privacy front. His specific target was The Wall Street Journal, which has been running an ongoing investigation of online privacy issues with a particular focus on online apps. Much of the reporting in their “What They Know” series has been valuable in that it has helped shine light on some data collection practices and privacy concerns that deserve more scrutiny. But as Constine notes, sometimes the articles in the WSJ series lack sufficient context, fail to discuss trade-offs, or do not identify any concrete harm or risk to users. In other words, some of it is just simple fear-mongering. Constine argues:

Reality has yet to stop media outlets from yelling about privacy, and because the WSJ writers were on assignment, they wrote the “Selling You On Facebook” hit piece despite thin findings. These kind of articles can make mainstream users so worried about the worst-case scenario of what could happen to their data, they don’t see the value they get in exchange for it. “Selling You On Facebook” does bring up the important topic of how apps can utilize personal data granted to them by their users, but it overstates the risks. Yes, the business models of Facebook and the apps on its platform depend on your personal information, but so do the services they provide. That means each user needs to decide what information to grant to who, and Facebook has spent years making the terms of this value exchange as clear as possible.

“While sensationalizing the dangers of online privacy sure drives page views and ad revenue,” Constine also noted, “it also impedes innovation and harms the business of honest software developers.” These trade-offs are important because, to the extent policymakers get more interested in pursing privacy regulations based on these fears, they could force higher prices or less innovation upon us with very little benefit in exchange.

Of course, the press generating hypothetical fears or greatly inflating dangers is nothing new. We have seen it happen many times in the past and it can be seen at work in many other fields today (online child safety is a good example). In my recent 80-page paper on “Technopanics, Threat Inflation, and the Danger of an Information Technology Precautionary Principle,” I discussed how and why the press and other players inflate threats and sell fear. Here’s a passage from my paper:

“The most obvious reason that doomsday fears get disproportionate public attention is that bad news is newsworthy, and frightening forecasts cause people to sit up and take notice,” Julian Simon astutely observed in 1996.[1] That is equally true today.[2] Many media outlets and sensationalist authors sometimes use fear-based rhetorical devices to gain influence or sell books. “Opportunists will take advantage of this fear for personal and institutional gain,” notes University of Colorado Law School professor Paul Ohm.[3] Fear mongering and prophecies of doom have always been with us, since they represent easy ways to attract attention and get heard. “Pessimism has always been big box office,” notes [Matt] Ridley.[4] This is even more true in the midst of the modern information age cacophony. Breaking through all the noise is hard when competition for our eyes and ears is so intense. It should not be surprising, therefore, that sensationalism and alarmism are used as media differentiation tactics. This is particularly true as it relates to kids and online safety.[5] “Unbalanced headlines and confusion have contributed to the climate of anxiety that surrounds public discourse on children’s use of new technology,” argues Professor Sonia Livingstone of the London School Economics. “Panic and fear often drown out evidence.”[6] Sadly, most of us are eager listeners and lap up bad news, even when it is overhyped, exaggerated, or misreported. [Michael] Shermer notes that psychologists have identified this phenomenon as “negativity bias,” or “the tendency to pay closer attention and give more weight to negative events, beliefs, and information than to positive.”[7] Negativity bias, which is closely related to the phenomenon of “pessimistic bias” …  is frequently on display in debates over online child safety, digital privacy, and cybersecurity.

As I’ve noted here before, the Federal Trade Commission (FTC) has an ongoing proceeding asking “How Will Journalism Survive the Internet Age?” The agency has hosted two workshops on the issue and a third is scheduled for June 15th at the National Press Club. Recently, the FTC released a 47-page staff discussion draft entitled “Potential Policy Recommendations to Support the Reinvention of Journalism,” which outlines dozens of proposals that have been set forth in recent years to “save journalism,” “reinvent media,” or support various forms of so-called “public interest programming.”  [I’ve embedded the document down below.] Although the FTC makes it very clear on the first page of the discussion draft that it “does not represent final conclusions or recommendations by the Commission or FTC staff [and] it is solely for purposes of discussion,” the document is drawing scrutiny and raising concern since it might foreshadow where the FTC (and Obama Administration) could be heading on this front.

Some of those raising a stink about the FTC draft include: Jeff Jarvis (“FTC Protects Journalism’s Past“); Rob Port (“Federal Government Considering “iPad Tax” To Subsidize Journalism“); Mark Tapscott: “(Will Journalists Wake up in Time to Save Journalism from Obama’s FTC?”); and Andrew Malcolm of the Los Angeles Times (“Obama’s FTC Plan to Reinvent America’s News Media“), who says, “this FTC study is rated R for anyone who thinks the federal government, the object of copious news coverage itself, has no business deciding which sectors of the private media business survive and thrive through its support, subsidies and encouragement with things like tax incentives. Yet that’s what this Obama administration paper is suggesting as another of the ex-community organizer’s galactic reform plans.”   Ouch!

I’ve spent a great deal of time considering many of the “reform” proposals that the FTC outlines in its discussion draft and, along with Berin Szoka, recently released a 5-part series of papers and filed 80 pages of comments with the Federal Communications Commission (FCC) in its “Future of Media” proceeding, which shares much in common with the FTC’s “Will Journalism Survive?” proceeding. Not all of the ideas floated in the FTC’s draft document are toxic, but some are very troubling and fit squarely in the red or yellow zone of that chart above, which plots a range of media policy options that the FTC or FCC might pursue.

As the FTC draft is structured currently, it appears to have been heavily influenced by the radical activist group Free Press and its founder Robert McChesney, the prolific neo-Marxist media scholar from the University of Illinois. I’ve explained in detail here before the dangerous ideas floated by McChesney and Free Press. For background, see:

• Free Press, Robert McChesney & the “Struggle” for Media, Aug. 2009
• A “Public Option” for Media? The Free Press Plan to Put Journalists on the Public Dole, Nov. 2009
• What the Media Reformistas Really Want, Aug. 2008
• Socializing Media in Order to Save It, March 2009

McChesney and his Free Press disciples have called for a “post-corporate” media world in which the state essentially serves as both a benefactor and partner of the press. Their “public option” for the press would essentially upend private media and toss the First Amendment into the dustbin of history. I encourage everyone who thinks I am exaggerating to read Chapter 4 (“Subsidizing Democracy”) of McChesney’s new book with John Nichols, The Death and Life of American Journalism as well as the “National Journalism Strategy” that Free Press released last year.

Those two works read like a Soviet-style 5-Year Plan for the Press. Massive subsidies. Massive taxes. Massive state meddling into virtually every aspect of the media marketplace and journalistic profession. And if, after reading those documents, you still don’t think they are out to destroy the private provision of media in America, you might want to check out this interview McChesney did with the Canadian-based “Socialist Project” in which he confessed that “the ultimate goal is to get rid of the media capitalists,” and noted that, “unless you make significant changes in the media, it will be vastly more difficult to have a revolution.” Similarly, in his book with Nichols, he concludes by noting that “We have responded in a time of crisis not with tinkering reforms but with revolution.”  They sure have!

For some reason, the FTC seems enamored with these dangerous ideas. McChesney and Free Press are cited over a dozen times and their proposals show up almost verbatim throughout the FTC’s discussion draft. Moreover, McChesney was recently invited to one of the FTC’s workshops to deliver a major address on these issues. Finally, what makes me particularly nervous is that Susan DeSanti, the person running the FTC’s effort, has praised McChesney and Nichols’ “excellent book” despite its call for radical steps that would essentially hobble private media and impose crushing taxes on just about everyone in sight to subsidize public, state-blessed media.

I sincerely hope that the FTC’s “discussion draft” is just that, and nothing more.  I’m fine with discussing kooky Marxist ideas all day long. I just hope our government isn’t getting ready to start imposing them upon us.

New FTC Staff Discussion

I’m keeping tabs on who filed “major” comments (more than a 10-15 pages) in the Federal Communications Commission’s “Future of Media” proceeding (GN Docket No. 10-25).  As I noted last week, The Progress & Freedom Foundation submitted almost 80 pages of comments (single-spaced!) in the matter, so it’s something I care deeply about and will be tracking closely going forward.

Incidentally, the general consensus of those who filed (especially if you count “minor” comments) is fairly overwhelming: Bring on Big Government! Seriously, I only found a handful of comments that object strenuously to government meddling in media markets or that raised concerns about the potential for the State’s increasing involvement in the journalism profession. Even many of the affected industries appear to be suffering from a bit of Stockholm syndrome here.  Most of them just play up the good things they are doing but barely utter a peep about the dangers of federal encroachment into the affairs of the Press.

Anyway, for those of you who care to track the gradual federalization of media and journalism, I think what you see below is a fairly comprehensive listing of the major filings submitted thus far in the FCC’s “Future of Media” proceeding. I’ll try to add more as I find them. You might also want to track what was filed in the Federal Trade Commission’s workshops on “How Will Journalism Survive the Internet Age.”  Finally, if you care to learn more of this issue, I’m hosting an event on the morning of May 20th to discuss these issues in more detail.

• American Community Television
• American Legislative Exchange Council (ALEC)
• American Public Media
• Association of Independents in Radio
• broadcast TV stations coalition
• Center for Social Media (Patricia Aufderheide & Jessica Clark) [+ attachments 1, 2, 3]
• Communications Workers of America & The Newspaper Guild
• Communications Workers of America & Media Council Hawaii
• Competitive Enterprise Institute (CEI)
• CPB – PBS – NPR – APTS
• Free Community Paper Industry
• Free Press, New America Foundation, Media Access Project & others
• Good Life Broadcasting, Inc.
• Institute for Policy Integrity (New York Univ. School of Law)
• LIN Television
• The Media Consortium
• Media Working Group, Inc.
• Minority Media and Telecommunications Council
• National Association of Broadcasters (NAB)
• National Cable & Telecommunications Association (NCTA)
• National Hispanic Media Coalition
• Native Public Media
• National Association of Telecommunications Officers and Advisors
• National Religious Broadcasters
• National Public Radio (NPR)
• National Federation of Community Broadcasters
• New Media Rights
• Newspaper Association of America (NAA)
• Nexstar Broadcasting, Inc
• Progress & Freedom Foundation (PFF)
• Public Broadcasting Service (PBS)
• Radio Television Digital News Association
• Station Resource Group (+attachment)
• Society of Professional Journalists
• J. Brian Hudson (J.D. candidate at Villanova Law School)

Good to see so many media industry executives expressing skepticism about the idea of government subsidies for the press. Danny Glover brought to my attention this new survey by the Pew Research Center’s Project for Excellence in Journalism in association with the American Society of News Editors (ASNE) and the Radio Television Digital News Association (RTDNA). It revealed that, “Fully 75% of all news executives surveyed—and 88% of newspaper executives—said they had ‘serious reservations,’ or the highest level of concern, about direct subsidies from the government.” A smaller percentage (only 46%) had serious reservations about tax credits for news organizations, then again, only 13% said they “would welcome such funding” and just 6% said they were “enthusiastic” about it.

This is encouraging news as many government officials at the FCC, FTC, and in Congress are currently considering whether government should steps to prop up failing media entities or promote certainly types of content. Berin Szoka and I have been working on a series of essays about the wrong ways to go about reinventing media [see Part 1, Part 2] and plan several more installments leading up to a big filing in the FCC’s “Future of Media” proceeding (the deadline is May 7^th).

Here’s a chart from the Pew survey illustrating funding alternatives and the percentage who had “serious reservations” about each option:

“We’re from government and we’re here to help save journalism.”

That seems to be the hot new meme in media policy circles these days. Last week, it was the Federal Communications Commission (FCC) kicking off their “Future of Media” effort with a workshop on “Serving the Public Interest in the Digital Era.” This week, it’s the Federal Trade Commission’s (FTC) turn as they host the second in their series of workshops on How Will Journalism Survive the Internet Age? Meanwhile, the Senate has already held hearings about “the future of journalism,” and Senator Benjamin L. Cardin (D-MD) recently introduced the “Newspaper Revitalization Act,” which would allow newspapers to become nonprofit organizations in an effort to help them stay afloat.

I have no doubt that many of the public policymakers behind these efforts have the best of intentions and really are concerned about what many believe to be a crisis in the field of journalism. But here are my three primary concerns with Washington’s sudden interest in “saving journalism”:

1. Policymakers are largely ignoring the role they played in created the current mess, and they won’t likely be willing to undo the damage. I’m speaking mostly of the myriad ownership restrictions and assorted other “public interest” regulations that have strangled many traditional media operators over the years and limited their ability to respond to marketplace changes. I documented these rules and their anti-innovative impacts in my 2005 book, Media Myths: Making Sense of the Debate over Media Ownership. I fear that they now won’t be willing to loosen those chains that continue to bind the media sector. Moreover, it may already be too late for some of those players.
2. Many public officials are largely focused on the problems associated with change and are either ignoring–or, through their interventions could thwart–the opportunities associated with change. No doubt, many media operators are struggling. But it is equally true that exciting new media business models and opportunities are developing. As I pointed out in my recent Newseum debate, while we are in a gut-wrenching evolution with a great deal of creative destruction taking place, we should be careful to not to head off potentially advantageous marketplace developments, if even some are highly disruptive.
3. Increased “assistance” from Washington will likely come with strings attached and raise troubling First Amendment implications. Sen. Cardin’s bill, for example, serves as a good example of what makes me so nervous about Washington’s growing interest in “saving journalism.”  As a condition of any any media entity receiving non-profit tax status, the bill would disallow political endorsements on newspaper editorial pages–which, like campaign finance restrictions, would be a boon for incumbents. That should serve as fair warning to journalists about the sort of strings lawmakers will attach to press-welfare efforts going forward. What else might subsidized media entities have to put up with? Free campaign ads for politicians? Fairness Doctrine or mandatory right of reply for printed editorials? Censorship for “negative” political satire or comics? Moreover, how do we define a “media entity” or “journalist” in terms of how is eligible for support?  Taken together, these considerations raise some rather profound First Amendment questions.

Stay tuned because this debate is just getting started. I suspect that policymakers will significantly step up their interest in the issue as more traditional media entities begin failing. What will be interesting is the extent to which some policymakers begin to embrace the “media reformista” agenda of greater public control that some fringe groups like Free Press favor. I’ve documented their radical agenda here before in my essays:

• A “Public Option” for Media? The Free Press Plan to Put Journalists on the Public Dole
• Free Press, Robert McChesney & the “Struggle” for Media
• What the Media Reformistas Really Want
• Socializing Media in Order to Save It

And I’m currently finishing up the new book by Robert McChesney & John Nichols, The Death and Life of American Journalism, which is a blueprint for how to convert media into wards of the State.  As part of their effort to create a massive “public works” program for the press, they advocate that public subsidies for media be funded by everything from a 5% tax on consumer electronics to a 3% tax on monthly ISP & cell phone bills to taxes on commercial advertising.  Truly frightening stuff. Anyway, I’ll have a complete review done shortly.

Further reading:

• summary of remarks at “Crisis in Journalism” event, by Adam Thierer, Feb. 2010
• Public Option for Press Should Get the Red Pen, by Adam Thierer, The Daily Caller, Jan. 2010
• A “Public Option” for Media? The Free Press Plan to Put Journalists on the Public Dole, by Adam Thierer, Nov. 2009
• Free Press, Robert McChesney & the “Struggle” for Media, by Adam Thierer, Aug. 2009
• What the Media Reformistas Really Want, by Adam Thierer, Aug. 2008
• Socializing Media in Order to Save It, by Adam Thierer, City Journal, March 2009
• Obama Should Just Say No To Newspaper Bailouts, Adam Thierer, Sept. 2009
• The Dangers of Government-Subsidized News, by Adam Thierer, Oct. 2009
• A Bailout For The First Amendment?, by Wayne Crews, Aug. 2009
• testimony at FCC’s Hearing on “Serving the Public Interest in the Digital Era”, by Adam Thierer, March 2010
• A Manifesto for Media Freedom, by Adam Thierer and Brian Anderson, 2008
• Chairman Leibowitz’s Disconnect on Privacy Regulation & the Future of News, by Adam Thierer & Berin Szoka, Progress Snapshot 6.1, January 13, 2010
• Media Ownership Proceedings, by W. Kenneth Ferree, Testimony before the Federal Communications Commission, November 3, 2009
• Media Myths: Making Sense of the Debate over Media Ownership, by Adam Thierer, June 2005

by Adam Thierer & Berin Szoka, Progress Snaphot 6.1

Stephanie Clifford of the  New York Times posted a very interesting article this week summarizing a recent “on-the-record chat” the Times staff had with Federal Trade Commission (FTC) chairman Jon Leibowitz and FTC Bureau of Consumer Protection chief David Vladeck.  The interview [discussed by Braden here] is profoundly important in that it reveals an alarming disconnect regarding the relationship between “privacy” regulation and the future of media, which were the subjects of their discussion with Times staff.  Namely, Leibowitz and Vladeck apparently fail to appreciate how the delicate balance between commercial advertising and journalism is at risk precisely because of the sort of regulations they apparently are ready to adopt.  Because the value of online advertising depends on data about its effectiveness and consumers’ likely interests, and because advertising is indispensable to funding media, what’s ultimately at stake here is nothing short of the future of press freedom.

The “Day of Reckoning” Is Upon Us

Leibowitz and Vladeck spend the first half of The Times interview wringing their hands about “privacy policies,” the declarations made by websites and advertising networks about their data collection and use practices (for which the FTC can and must hold them accountable).  But the two feel that privacy policies don’t adequately inform consumers.  Chairman Leibowitz claims that online companies “haven’t given consumers effective notice, so they can make effective choices.”  And Mr. Vladeck states that advise-and-consent models “depended on the fiction that people were meaningfully giving consent.” But he and the FTC seem ready to abandon the notice and choice model because the “literature is clear” that few people read privacy policies, Vladeck told the Times.  He and Leibowitz continue:

“Philosophically, we wonder if we’re moving to a post-disclosure era and what that would look like,” Mr. Vladeck said. “What’s the substitute for it?” He said the commission was still looking into the issue, but it hoped to have an answer by June or July, when it plans to publish a report on the subject. Mr. Leibowitz gave a hint as to what might be included: “I have a sense, and it’s still amorphous, that we might head toward opt-in,” Mr. Leibowitz said.

This clearly foreshadows the regulatory endgame we have long suspected was coming.  When the FTC released its “Self-Regulatory Principles for Online Behavioral Advertising” eleven months ago, we asked: “What’s the Harm & Where Are We Heading?”  Their answers to both questions have become clearer with each new calculated comment—all apparently intended to slowly “turn up the heat” on the advertising industry so that the proverbial frog will stay in the pot until the water finally boils.  Leibowitz’s FTC has simply dodged the “harm” question with a four-part strategy:

1. Cobble together a “record” full of sympathy-evoking anecdotes submitted by advocates of regulation in comments and the FTC’s ongoing “Exploring Privacy” Roundtables;
2. Let the most extreme Chicken Littles fulminate about the grand conspiracy of “neuromarketing manipulation” and the like (and sometimes even shout down FTC staff in panel discussions) in order to redefine the “reasonable center” of the debate;
3. Define-down “harm” as purely a matter of “consumer expectations” or consumers’ “dignity interests” (whatever that vague and infinitely elastic term means); and
4. Attack the effectiveness of “consent” itself by suggesting that consumers cannot be trusted to understand privacy policies or be expected to make any effort to protect their own privacy.

Conveniently, this strategy leads right back to the “day of reckoning” Chairman Leibowitz threatened was coming last February: We are heading precisely where he told us we would be—to full-on, opt-in regulation.  The writing on the wall becomes more apparent every day: Leibowitz set out to bring online advertising to heel even before becoming Chairman, and his Commission is reprising almost precisely the same approach that led to the passage of the Children’s Online Privacy Protection Act (COPPA) of 1998: building a case for new authority, dismissing industry self-regulation as ineffective, and finally presenting a report to Congress intended to produce a rapid legislative response.  After the FTC presented its report on the need for regulation in congressional testimony in June 1998, it took Congress just four months to pass COPPA—and much of that time was consumed by the summer recess.  In short, Leibowitz is mounting a carefully choreographed campaign for increased regulation.

The only real question is whether Leibowitz will somehow try to use the FTC’s existing authority over “unfair or deceptive” trade practices or wait for expanded authority from Congress.  While most observers typically assume that such expanded authority would come in the form of a privacy-specific bill—be it a broad “baseline” privacy bill or one specifically focused on online data collection for advertising purposes—the authority Leibowitz yearns for could just as easily come in the form of increased rulemaking authority as part of a broader bill that allows the FTC to preemptively regulate practices that are not deceptive but merely deemed “unfair.”

This would take the agency “ Back to the Future”—to the late 1970s, when the agency reached the height of its efforts to regulate purely on “unfairness” grounds by trying to ban advertising to children.  The agency’s behavior earned it the moniker “National Nanny” from the Washington Post, hardly a bastion of regulatory skepticism.[1] That outpouring of popular resentment caused a heavily Democratic Congress to cut-off the Democratic-led agency’s regular funding and prohibit it from regulating advertising merely on the grounds of “unfairness.”  In essence, they told the agency to “go back to its knitting” and focus on protecting consumers from demonstrated harms.^[2] Duly chastened (and actually shut down for several days), the FTC formulated a meaningful legal standard for “unfairness,” which Congress codified in 1994: for a practice to be unfair, the injury it causes must be (1) substantial, (2) without offsetting benefits, and (3) one that consumers cannot reasonably avoid.

Under this statutory standard, as FTC Commissioner Thomas Rosch has argued, the commission must carefully consider:

[the] legitimate pro-consumer and pro-competitive benefits that result from [targeted advertising]. Absent hard data weighing these benefits against the limited “invasion of privacy interests” involved, it would seem difficult to conclude that treating that practice as an actionable violation of the “unfairness” prong of Section 5 will pass muster.[3]

So Leibowitz and Vladeck either need to get serious about weighing the costs and benefits of targeted advertising—or, in the absence of such actually measuring these trade-offs, get Congress to give them the authority to regulate.  But one thing is clear from their past statements: they are in a hurry to do  something. As Vladeck told The Times last August, “There is a sense of urgency around here… Consumers, I don’t think are sufficiently protected under the current regime.”  Apparently, the case is closed in their minds.

“Left Hand, Meet Right Hand”

The second half of the  Times interview concerns the future of news. Chairman Leibowitz is not optimistic:

“There are some areas where you clearly see positive creative destruction,” Mr. Leibowitz said, giving the example of travel agents who were replaced by Orbitz and other online-booking systems. The news, he said, was not one of those. “When you’re dealing with something as critical as news is to a democracy, you need to ensure, certainly, that it’s independent, but also that it’s vibrant going forward,” he said. Areas like investigative reporting, foreign and domestic bureaus, and state-house reporting, he said, would likely falter under blog operations because of “economies of scale.”

He said he wasn’t sure what the solution was, but threw out a few ideas discussed at the conference: maybe special tax treatment for newspapers, a Corporation for Public Broadcasting-like fund, or for the newspaper industry to charge fees for the re-use of its content, similar to the model that the American Society of Composers, Authors and Publishers uses. [emphasis added]

Mr. Chairman, with all due respect, haven’t you forgotten about the solution that has powered private media for a few centuries in this country?  You know— advertising!  Indeed, what’s stunning about these comments is the complete disconnect with what Leibowitz and Vladeck said earlier in the interview.  It certainly may be the case that they said more on the subject than what The Times has reported, but given their escalating rhetoric, it seems likely that significantly increased FTC regulation is on the horizon.  And, yet, as Chairman Leibowitz marches us into this brave new world of regulating Internet media through their key funding source, he and Mr. Vladeck seem to have little appreciation of the vital role played by advertising in sustaining a truly free and vibrant press.

An Attack on Advertising Is an Attack on Media Itself

Let’s step back and revisit Media Economics 101.  Almost every serious scholar in the field acknowledges this truism: Advertising cross-subsidizes media platforms and the creation of valuable information—especially news.  “Advertising is the mother’s milk of all the mass media,”  Wall Street Journal technology columnist Walt Mossberg has noted.  Similarly, Harold L. Vogel, author of Entertainment Industry Economics, the leading text in the field, has noted, “Advertising is the key common ingredient in the tactics and strategies of all entertainment and media company business models.  Indeed, it might further be said that advertising has substantively subsidized the production and delivery of news and entertainment throughout the last century.”[4] Mossberg agrees and notes, “Without ads, most editorial products and other programming would be either unavailable or prohibitively expensive.”

The reason for the indispensability of advertising is simple: Information (including news and other forms of “content”) has “public good” characteristics that make it is very difficult (and occasionally impossible) for information-publishers to recoup their investments.  Simply put, they quite literally lack pricing power: Whatever they charge, someone else will charge less for a close substitute, inevitably leading to “free” distribution of the content, even though the content is anything but free to produce.  Advertising is the one business model that has traditionally saved the day by rewarding publishers for attracting the attention of an audience.

Which raises another under-appreciated point: Private advertising promotes press independence.  “Newspapers, magazines, radio, television, and many websites all receive their primary income from advertising,” notes William F. Arens, author of  Contemporary Advertising, another leading textbook in the field. “This facilitates freedom of the press and promotes more complete information” he concludes.[5] Why?  Because, contrary to what some critics claim, advertising and marketing help keep private media providers independent of the need for taxpayer subsidies or private patrons.  This begs an even more profound question: If not advertising, then what else?

A “Public Option” for the Press?

What’s most troubling about Chairman Leibowitz’s comments to the Times is that he has apparently found his alternative to advertising: a “public option” for the press! He mentions special tax treatment for newspapers or a new CPB-like fund (don’t we already have one?) as two possibilities.  That certainly will be music to the ears of radical, pro-regulatory activist groups like the ironically-named “Free Press,” which wants to see a massive “public works” program for the media sector.

Free Press recently filed comments with the FTC in the agency’s recent workshop, “Can Journalism Survive the Internet Age?” and proposed a far-reaching industrial policy for “saving the news.”  They call for over $50 billion in subsidies for the Corporation for Public Broadcasting and other bureaucracies, a “journalism jobs program” for that would be part of AmeriCorps, a variety of new tax incentives for struggling media operations or individuals who support favored institutions, and an assortment of government incentives to encourage local ownership and media divestiture (by handing over control to smaller operators or minority-owned groups).  Ironically, “Free Press” has also floated the concept of “a small tax on advertising” as one way to pay for a press bailout.

The organization’s founder Robert W. McChesney, the prolific neo-Marxist media scholar, penned an essay with John Nichols of The Nation last year, claiming that saving journalism essentially requires that media become an appendage of the State.  Although advertising has supported journalism as a “public good” for centuries, the only way they can conceive to provide a public good is to socialize its means of production.  Thus, journalism, like education and national defense, requires constant government oversight and support: “A moment has arrived at which we must recognize the need to invest tax dollars to create and maintain news gathering, reporting and writing with the purpose of informing all our citizens.”  They ask us to consider the $60 billion in government spending they propose as a “free press ‘infrastructure project,’” which would “keep the press system alive.”

Some in Congress seem willing to listen.  The Senate has already held hearings about the future of journalism.  And Senator Benjamin L. Cardin (D-MD) recently introduced what he has called the “Newspaper Revitalization Act,” which would allow newspapers to become nonprofit organizations in an effort to help them stay afloat.  Importantly, however, the bill would also disallow political endorsements on newspaper editorial pages—which, like campaign finance restrictions, would be a boon for incumbent politicians.  That bill should serve as fair warning to journalists about the sort of strings lawmakers will attach to press-welfare efforts going forward.  What other “golden shackles” might come with media subsidies?

To be clear, Chairman Leibowitz hasn’t called for a complete press takeover along the lines of the Free Press plan.  Yet, he hasn’t answered a key question in this debate: Who pays for news?  He appears ready to endorse a bold new regulatory scheme for the Internet and online media that, in the name of “protecting privacy” would put at risk the one traditionally successful method of supporting private media operations—advertising.  As the Pew Research Center’s Project for Excellence in Journalism noted in its latest State of the News Media report, “The problem facing American journalism is not fundamentally an audience problem or a credibility problem.  It is a revenue problem—the decoupling… of advertising from news.”  There’s probably no way policymakers can stop this process, nor should they try.  But they shouldn’t be creating new obstacles to the survival of traditional media creators, either.

Unfortunately, that’s exactly what Chairman Leibowitz’s new regulatory scheme would do.  The revenue “delta” between “smart” advertising (tailored to consumers’ likely interests and measured for effectiveness in producing clicks, purchases, etc.) and “dumb advertising” (based purely on surrounding keywords or demographics of users presumed to visit the site) is difficult to measure but potentially enormous—even 10 times as great for some sites.[6] The difference between opt-in and opt-out could be nearly as dramatic, because it’s difficult to get consumers to opt-in for anything, especially for small players—which means that opt-in regulation could, perversely, force consolidation in the online advertising and content markets.  If the FTC cares about its statutory responsibility to safeguard competition, they should take this dynamic seriously and be hyper-cautious about heavy-handed mandates that could derail smarter advertising.

Finally, to be fair, in his interview, the Chairman also suggests the newspaper industry might want to find new way “to charge fees for the re-use of its content.”  We’re certainly not opposed to the notion and think that, if it could somehow be made to work (especially by removing antitrust obstacles), it could part of a diverse revenue mix for digital journalism.  But, there’s the rub.  Micropayments inevitably face the problem of “mental transaction costs”  that likely swamp the perceived value of most content and, like pay-walls, have generally worked only in media environments characterized by a scarcity of providers and a uniqueness of a sufficiently valuable product.  These cold, hard economic realities are why advertising remains indispensable.

The Principled Alternative to Regulation

Convinced that privacy policies simply don’t work, Leibowitz and Vladeck are asking what a “post-disclosure era” would look like.  We appreciate the continued sensitivities expressed by certain groups and individuals about online privacy and data use more generally.  But there is another way forward.  We have proposed the following “5-E” layered approach to concerns about online privacy, focusing on restraining government access to data as a clear harm, rather than crippling the private sector uses of data that directly benefit consumers:

1. Erect a higher “Wall of Separation between Web and State” by increasing Americans’ protection from government access to their personal data—thus bringing the Fourth Amendment into the Digital Age.
2. Educate users about privacy risks and data management in general as well as specific practices and policies for safer computing.
3. Empower users to implement their privacy preferences in specific contexts as easily as possible.
4. Enhance self-regulation by industry sectors and companies to integrate with user education and empowerment.
5. Enforce existing laws against unfair and deceptive trade practices as well as state privacy tort laws.

Such a layered approach would not only be a “less restrictive” alternative to top-down, one-size-fits-all government regulation, but also potentially more effective in key respects than government data use/collection mandates.  In an ideal world, adults would be fully empowered to tailor privacy decisions, like speech decisions, to their own values and preferences (“household standards”).  Consumers would have (1) the information necessary to make informed decisions and (2) the tools and methods necessary to act upon that information. Importantly, those tools and methods would give them the ability to block the things they don’t like—annoying ads or the collection of data about them, as well as objectionable content—while also helping them find the information and content they desire.

But of course, the devil’s in the details.  Leibowitz and Vladeck would set the bar so high as to what constitutes “effective” consumer choice that current privacy policies necessarily fail their test—if only because most users don’t care enough to make the “right” privacy choices.  Privacy policies, even if read by relatively few consumers, nonetheless allow privacy advocates, journalists and watchdog-bloggers to scrutinize what companies say they’re doing—promises to which the FTC should hold companies stringently.  That’s clearly not good enough for Leibowitz and Vladeck, who want to give up on “notice and choice” and move on to “opt-in” mandates.  But why not first try to make “notice” more effective?  The advertising industry is currently developing standardized interfaces that could communicate key information about privacy practices in a single icon, label or other easily-digested “consumer touch point.”

More radically, why focus on tinkering with consumer interfaces, when standardized data disclosure formats like the Protocol for Privacy Preferences (P3P) could distill legalistic privacy policies into “machine-readable” code?  Such disclosures could provide a powerful form of “notice” that the ordinary consumer could “use”: simply setting their own privacy preferences in a browser tool that automatically implements those preferences by blocking tracking that users object to.  Such a privacy disclosure format could also allow the FTC to automate enforcement of its existing authority to punish unfair or deceptive trade practices.

Conclusion

And so we return to the question the FTC asked in its recent workshop, “Can Journalism Survive the Internet Age?”  Answer: Not if the FTC kills the golden goose that lays the golden eggs through onerous advertising regulations and data controls in the name of “privacy.”  Chairman Leibowitz and Bureau Chief Vladeck shouldn’t foreclose the possibility that advertising can play a central role in the future of a free press in the Digital Age—just as it has done historically in the United States.  Indeed, they would be wise to remember that advertising has always been with us.  As the Supreme Court noted in its 1996 decision, 44 Liquormart, Inc. v. Rhode Island.

Advertising has been a part of our culture throughout our history. Even in colonial days, the public relied on “commercial speech” for vital information about the market. Early newspapers displayed advertisements for goods and services on their front pages, and town criers called out prices in public squares. Indeed, commercial messages played such a central role in public life prior to the founding that Benjamin Franklin authored his early defense of a free press in support of his decision to print, of all things, an advertisement for voyages to Barbados.[7]

Of course, for advertising to continue to play the role as sustainer of the press, it must be allowed to evolve.  Media operators—large and small alike—must be allowed to craft new strategies, some of which may require data collection and marketing practices that will make some privacy-sensitive users uncomfortable, but will also ensure that the goose keeps on laying golden eggs for them and everyone else.

While Chairman Leibowitz may decry the creative destruction at work in the news sector and information industries today, that shakeup will continue and, no doubt, be painful for incumbent players.  Advertising alone may not “save the day” for media as it has in the past, but it will likely remain essential to sustaining private media platforms and providers going forward— if federal policymakers allow it.  The alternative—massive government intervention into the news and media sectors—is too horrifying to think about.

[1] Washington Post, March 1, 1978.

[2] Congress terminated the FTC’s efforts to prohibit advertising to children, and barred the agency from issuing any advertising regulation predicated solely on unfairness for three years.  FTC Improvements Act, Pub. L. No. 96-252, § 11 (May 1980).  See generally J. Howard Beales, Director of the Bureau of Consumer Protection, Federal Trade Commission, The FTC’s Use of Unfairness Authority: Its Rise, Fall, and Resurrection, www.ftc.gov/speeches/beales/unfair0603.shtm.

[3] Thomas Rosch, Some Reflections on the Future of the Internet: Net Neutrality, Online Behavioral Advertising, and Health Information Technology, Remarks at U.S. Chamber of Commerce Telecommunications & E-Commerce Committee Fall Meeting, October 26, 2009, 13, www.ftc.gov/speeches/rosch/091026chamber.pdf.

[4] Harold L. Vogel, Entertainment Industry Economics (Cambridge, MA: Cambridge University Press, 7th Edition, 2007), at 46.

[5] William F. Arens, Contemporary Advertising (McGraw-Hill Irwin, 10^th Ed., 2006) at 50.

[6] See Berin Szoka & Mark Adams, The Benefits of Online Advertising & Costs of Privacy Regulation, PFF Working Paper, Nov. 8, 2009, www.scribd.com/doc/22445754/Benefits-of-Online-Advertising-Paper.

[7] 517 U.S. 484, 495 (1996), http://www.law.cornell.edu/supct/html/94-1140.ZO.html

______________________________

Related PFF Publications

• Privacy Trade-Offs: How Further Regulation Could Diminish Consumer Choice, Raise Prices, Quash Digital Innovation & Curtail Free Speech, Berin Szoka, Comments to the Federal Trade Commission “Exploring Privacy” Roundtable, November 10, 2009.
• Online Advertising & User Privacy: Principles to Guide the Debate, Berin Szoka & Adam Thierer, Progress Snapshot 4.19, Sept. 2008.
• Targeted Online Advertising: What’s the Harm & Where Are We Heading?, Berin Szoka & Adam Thierer, Progress on Point 16.2, April 2009.
• Privacy Polls v. Real-World Trade-Offs, Berin Szoka, Progress Snapshot 5.10, Oct. 2009.
• The Benefits of Online Advertising & Costs of Privacy Regulation, Berin Szoka & Mark Adams, PFF Working Paper, Nov. 8, 2009.
• Benefits of Online Advertising, Berin Szoka, Mark Adams, Howard Beales, Thomas Lenard & Jules Polonetsky, PFF Capitol Briefing, July 2009.
• Public Option for Press Should Get the Red Pen, Adam Thierer, The Daily Caller, Jan. 12, 2010.

Free Press, the radical pro-regulatory media activist group, recently filed comments with the Federal Trade Commission (FTC) for the agency’s upcoming workshop on “How Will Journalism Survive the Internet Age?”  The Free Press comments provide an enlightening glimpse into the mind of how many on the Left now think about media policy in America.  Their approach can be summarized as follows:

1. Nothing the private sector can do will save journalism (unless it is entirely non-profit / non-commercial in nature);
2. Even if there was something that private players could do to save journalism, Free Press would likely have federal authorities forbid it anyway (especially if it involved new business ownership patterns or combinations); and,
3. The only thing that can really save journalism is a “public option” for the press in the form of massive state subsidization of media in this country.

To elaborate on the last point, here’s how Free Press summarizes what they are looking for:

For U.S. public media to become a truly world-class system will require a substantial increase in funding. This could be accomplished by an increase in direct congressional appropriations to the Corporation for Public Broadcasting. With increased funding — to as little as $5 per person, increasing annual appropriations to some $1.5 billion — the American public media system could dramatically increase its capacity, reach, diversity and relevance.

But they stress that a simple expansion of the PBS/NPR/CPB non-commercial model will not be enough since that system is “vulnerable to repeated threats of funding cuts” and too “reliant on corporate backing, via the underwriting process.” They want to go well beyond non-commercial media, therefore, and have the state start building a massive public media infrastructure.  Here’s where their pitch for a public option for the press comes in:

A better and more durable solution would be to create and fund a public trust, seeded with a large endowment and operated by the Corporation for Public Broadcasting or other NGO. The money for such a trust could be provided directly through an act of Congress or perhaps by placing a small tax on advertising. We estimate that a trust fund would require $50 billion to create sufficient revenue. If that figure seems high, consider that since last year, more than $173 billion in tax money has been sunk into just one corporation, AIG. Given that Congress just passed a nearly trillion-dollar economic recovery package, $50 billion for public media seems like a smart investment.

Basically, because everybody else is on the public dole these days–including undeserving Wall Street idiots–that justifies putting media operators and journalist on the dole, too.  Some pretty twisted logic there.  But the Free Press plan doesn’t end with public bailouts for media. A welfare system for journalists is next on the list:

Another form of government investment that could help spark new competition in the news ecosystem is the creation of research and development fund for journalistic innovation and experimentation. We need to think about the new media marketplace as an incubator for innovation. Just as government invests in medical research to heal the ails of the body, we need government to invest in experimentation with news models to heal the democratic ails of the body politic. We should explore the creation of a government-seeded innovation fund for journalism — a taxpayer-supported venture capital firm that invests in new business models. As a starting point, we are proposing a $50 million per year budget. This new venture capital firm could be set up as a public-private partnership, with federal matching funds for foundation-supported projects, or designed to provide guaranteed loans at low or no interest to start-up initiatives.

But wait, there’s more!  Free Press also wants:

• “a journalism jobs program to support veteran, qualified reporters and simultaneously to engage young people in journalism” that would be part of AmeriCorps.
• special tax status for journalism institutions along the lines of Sen. Ben Cardin‘s “Newspaper Revitalization Act,” which “would offer tax benefits to philanthropic groups and individuals that donate to newspapers, while providing the newspapers themselves with the tax benefits enjoyed by all tax-exempt organizations.” [Somehow Free Press fails to mention how that bill would also forbid political editorializing by those organizations as a condition of the deal!  So much for a “free press.”]
• a collection of government incentives to encourage local ownership and media divestiture: They explain… “The idea is to create, via changes to the federal tax and bankruptcy laws, a number of targeted ‘sweeteners’ that could be invoked — alone or in combination — when media properties are being put up for sale that would make new owners or ownership structures… more attractive than traditional corporate ownership models.” … “Newspaper owners might be more inclined to sell to socially motivated parties if the government offered certain subsidies or other incentives to facilitate the transactions. Perhaps the IRS could guarantee nonprofits a reduced buyout rate. In addition, government-guaranteed loans and bidding credits could be offered to nonprofits to help them purchase failing news organizations.”  A “minority media tax credit” is also proposed.

No word on how much more those programs and proposals add to the $50 billion price tag. Nor do they ever get around to explaining exactly how we’ll pay for it all, but I suppose bumping Rupert Murdoch’s marginal tax rate up to 99% would probably be where they’ll start.  The rest of us will be expected to pay our “fair share” eventually. There is, however, that one brief mention of “a small tax on advertising” as a way to pay for some of their plans.  Isn’t that just lovely.  I guess it shouldn’t be surprising that the one traditionally successful method of supporting private media operations would be the first thing Free Press would look to tax! After all, if you’re really out to destroy private media, it’s not enough to subsidize a public press option… no, you have to force the private players to pay into the scheme, too, thereby subsidizing their own competition!   You gotta hand it to these Free Press people; when they set out on a seek-and-destroy mission, they know how to get the job done.

Taken in the aggregate, the Free Press proposal reads like a Soviet-style 5-year plan for the media sector. [Hey, why not appoint another White House “czar” to oversee it all!]  In practice, such a public option for media raises many troubling questions.  The prospect of a large swath of the American media sector being treated as a publicly funded ward of the State isn’t just a small leak in the important wall between Press and State, it is the end of that wall.  It would dynamite that wall to the ground. It could potentially open the door to a fundamental corruption of the journalistic profession by public officials who would not likely be able to resist the urge to pressure those who are subservient to the State.  As such, the plan is an affront to our traditional First Amendment values and the importance of press independence in particular. And it is an affront to the taxpayers who would be stuck paying for a lot of journalism that they may not even want, like, or see.  As I noted in a previous essay, you can file all of this under the general theme: “Socializing Media in Order to Save It.”

But hey, it’s a new era, baby!  So get ready to pay your fair share to “save journalism” because Free Press and their founder Robert McChesney appear ready to make good on their promise to socialize all media and make it everybody’s collective responsibility via their public option for the press.

We’ve talked here before about the dangers of a government-subsidized press as a way of “saving journalism.” But I don’t think I’ve ever read anything quite as eloquent on the issue as Seth Lipsky’s editorial in today’s Wall Street Journal entitled “All the News That’s Fit to Subsidize.”  Mr. Lipsky is a member of the adjunct faculty at the Columbia Journalism School. In his essay today, he warns of the very real slippery slope associated with proposal to have government step in and somehow bailout newspapers as they find themselves in a time of crisis.Specifically, Mr. Lipsky addressees a new report (“The Reconstruction of American Journalism“) by Leonard Downie (former executive editor of the Washington Post) and co-author Michael Schudson (also of Columbia Journalism School), in which the authors call for a mixture of legal and regulatory changes as well as government subsidies to help prop up failing news operations.

Mr. Lipsky argues that they have “stepped onto an exceptionally slippery slope”:

I take no comfort from the analogy the authors of this report draw with government funding for the arts. In New York City, there came a time when the leaders the voters entrusted with their tax money concluded that what was being done with it in the arts was so abhorrent they tried to stop it. This happened in 1999, when Mayor Rudy Giuliani confronted the Brooklyn Museum over its display of a depiction of the Madonna that had been splattered with elephant dung. A federal court wouldn’t let the city stop funding the museum. […] Even if one could get around this sort of thing, I’ve come to the view that the real protection of press freedom is in the idea of private property. Press freedom in Soviet Russia was lost precisely on this issue when, as American journalist John Reed told the story in his famous book, “Ten Days that Shook the World,” a proposal was put on the table to restore the press freedom that had been suspended on the first day of the Bolshevik revolution. Lenin shouted it down with a diatribe about how that would mean restoring to capitalists privately owned printing equipment, paper supplies and ink. I don’t mean to suggest, in any way, that Mr. Downie is a Bolshevik. I do mean to suggest that the best strategy to strengthen the press would be to maximize protection of the right to private property—and the right to competition. Subsidies are the enemy of competition…

Amen brother.  Read the whole thing.

John Stuart Mill’s On Liberty turns 150 this year. Published in 1859, this slender manifesto for human liberty went on to become a classic of modern philosophy and political science.  It remains a beautiful articulation of the core principles of human liberty and a just society.

Anyone familiar with the book recognizes the importance of the opening chapter and Mill’s “one very simple principle” for “the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion”:

That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him, must be calculated to produce evil to some one else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

Mill went on to outline “the appropriate region of human liberty,” and divided it into:

1. “liberty of conscience, in the most comprehensive sense; liberty of thought and feeling; absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral, or theological. The liberty of expressing and publishing opinions may seem to fall under a different principle, since it belongs to that part of the conduct of an individual which concerns other people; but, being almost of as much importance as the liberty of thought itself, and resting in great part on the same reasons, is practically inseparable from it.”
2. “liberty of tastes and pursuits; of framing the plan of our life to suit our own character; of doing as we like, subject to such consequences as may follow: without impediment from our fellow-creatures, so long as what we do does not harm them, even though they should think our conduct foolish, perverse, or wrong”
3. “freedom to unite, for any purpose not involving harm to others”

Bringing it altogether, he argued:

The only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it. Each is the proper guardian of his own health, whether bodily, or mental and spiritual. Mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each to live as seems good to the rest.

To this day, I do not believe there has been a more eloquent or concise summation of the central principles of libertarianism than those passages from Chapter 1 of the book. But what many fail to remember or appreciate is the equally powerful second chapter of Mill’s treatise, “On the Liberty of Thought and Discussion.” It was a bold defense of freedom of speech and expression that was many decades ahead of its time. And it still has lessons and warnings worth heeding in our modern Information Age.

Mill opened that chapter by noting that:

The time, it is to be hoped, is gone by, when any defence would be necessary of the “liberty of the press” as one of the securities against corrupt or tyrannical government. No argument, we may suppose, can now be needed, against permitting a legislature or an executive, not identified in interest with the people, to prescribe opinions to them, and determine what doctrines or what arguments they shall be allowed to hear.

Alas, Mill knew that we weren’t quite there yet in 1859. Efforts to suppress speech and expression were alive and well. And so he marshaled all his intellectual forces to construct a powerful critique of censorship in all its forms:

The power itself is illegitimate. The best government has no more title to it than the worst. It is as noxious, or more noxious, when exerted in accordance with public opinion, than when in opposition to it. If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind. Were an opinion a personal possession of no value except to the owner; if to be obstructed in the enjoyment of it were simply a private injury, it would make some difference whether the injury was inflicted only on a few persons or on many. But the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error. … We can never be sure that the opinion we are endeavouring to stifle is a false opinion; and if we were sure, stifling it would be an evil still.

Mill went on to show how, at root, censorship is based on arrogance and elitism:

Those who desire to suppress [an opinion], of course deny its truth; but they are not infallible. They have no authority to decide the question for all mankind, and exclude every other person from the means of judging. To refuse a hearing to an opinion, because they are sure that it is false, is to assume that their certainty is the same thing as absolute certainty. All silencing of discussion is an assumption of infallibility. Its condemnation may be allowed to rest on this common argument, not the worse for being common.

More profoundly, Mill taught us that the right to freedom of thought and expression was a core right upon which almost all our other rights depended:

Complete liberty of contradicting and disproving our opinion, is the very condition which justifies us in assuming its truth for purposes of action; and on no other terms can a being with human faculties have any rational assurance of being right.

In other words, if you care about any other rights and wish to exercise them to their fullest, you must first have the right to express opinions and, importantly, have them subjected to the opinions of others. This is how truth is discovered.

[Man] is capable of rectifying his mistakes by discussion and experience. Not by experience alone. There must be discussion, to show how experience is to be interpreted. Wrong opinions and practices gradually yield to fact and argument: but facts and arguments, to produce any effect on the mind, must be brought before it. Very few facts are able to tell their own story, without comments to bring out their meaning.

And Mill taught us that it is essential we be vigilant in defending our rights of speech and expression because, sadly, “the dictum that truth always triumphs over persecution, is one of those pleasant falsehoods which men repeat after one another till they pass into commonplaces, but which all experience refutes. History teems with instances of truth put down by persecution,” he correctly noted.

Mill’s words are every bit as relevant in 2009 as they were 1859. While we enjoy significant speech and press freedoms here in the United States today, censorial threats persist.  Just a few years ago, the House of Representatives passed the Deleting Online Predators Act (DOPA), which proposed a ban on all social networking sites in public schools and libraries.  DOPA passed the House of Representatives shortly thereafter by a remarkably lopsided 410-15 vote, but luckily failed to get through the Senate. However, Congress did pass several other online censorship measures in the 1990s, including the Communications Decency Act of 1996 and the Child Online Protection Act (COPA) of 1998, which luckily were both struck down by the courts.

Of course, we have it pretty good here in the States thanks the existence of the First Amendment to our Constitution. Most speech-restricting enactments get struck down today because they cannot withstand strict scrutiny under the First Amendment. But think about all those less fortunate in other countries who struggle on a regular basis to express themselves and learn the truth about the world and culture around them without interference from above.

Anyway, go give On Liberty another read if you haven’t done so in some time. It’s a timeless statement of the principles that should guide a just society. I’ll close with this apt warning from Mill about how history will remember those who fail to appreciate the importance of openness to new ideas:

And so far from the assumption being less objectionable or less dangerous because the opinion is called immoral or impious, this is the case of all others in which it is most fatal. These are exactly the occasions on which the men of one generation commit those dreadful mistakes, which excite the astonishment and horror of posterity.

Update: A colleague of mine just brought to my attention this essay of “150 Years of On Liberty” by Jonathan M. Riley that appeared in this month’s edition of TPM: The Philosopher’s Magazine.

When the history books are finally written documenting America’s failed experiment with broadcast industry content regulation, this past week may go down as a critical moment in the story.  The obvious reason this week was so important was the Senate’s 87-11 vote on Thursday to prevent the Federal Communications Commission (FCC) from reinstating the Fairness Doctrine.  But an equally important development this past week was the release of a new white paper by the radical Leftist activist group Free Press.

The Free Press, which was founded by the socialist media theorist Robert McChesney, doesn’t typically publish many things admitting to the failures of coercive government regulation. Nonetheless, in “The Fairness Doctrine Distraction,” a paper by Josh Silver and Marvin Ammori, the media reformistas at Free Press told their Big Government comrades in Congress and academia that it was finally OK to let go of at least this one old pet project of theirs.  In their paper, Silver and Ammori note that, “The Fairness Doctrine put the federal government in the position of judging content and controlling speech” and “Reinstating the Doctrine will not result in greater viewpoint diversity in broadcasting.”  They continue:

The Fairness Doctrine, while originally well-intentioned, is not wise public policy. [T]he Doctrine places the FCC in charge of determining what is fair in political speech — a difficult task in the best of circumstances. Placing the government in the role of monitoring and judging political speech will inevitably produce controversy that is impossible to resolve.

I applaud the Free Press for finally fessing up to the Fairness Doctrine’s many failings.  This First Amendment-violating abomination should have never been allowed to be enforced by the FCC to begin with, but at least we can now all finally agree it should stay off the books for good.

Of course, the radicals at the (Un)Free Press weren’t about to let one of the Left’s old favorite regulations go so away without asking for something in return.  One of the reasons that Silver and Ammori are suddenly willing to give their blessing to the Doctrine’s burial is because they want to get on with the more far-reaching agenda of micro-managing media markets using a variety of less visible regulations.

Indeed, in their paper, Silver and Ammori go to great pains to try to show that the Fairness Doctrine supposedly has nothing to do with all the other regulations that they want Congress and the FCC to continue to enforce, or even expand.  These goals include media ownership restrictions, diversity mandates, local programming regulation, and so on.  Recognizing that the Fairness Doctrine was not only ineffective but also a useful tool for many on the political Right to whip their base into action, the Free Press moved to preemptively divorce their other pet projects from the Fairness Doctrine.

It’s a brilliant tactical move by Free Press; lull Limbaugh and other conservatives into a deep sleep by throwing them the bone of a Fairness Doctrine win, and then push a far more radical regulatory agenda through the back-door once they’ve stopped paying attention.  Of course, these things cannot be as easily divorced as the Free Press radicals want us to believe.  The Fairness Doctrine was just one part of a much grander regulatory paradigm that so-called progressives have pushed for under the banner of “public interest regulation.”

There’s a rich mythology that has built up around “the public interest” efforts of the progressives, but like the Fairness Doctrine, it’s all just arbitrary government abuse of the First Amendment at the end of the day. Indeed, as I’ve noted here before, the public interest standard is not really a “standard” at all since it has no fixed meaning.  The definition of the phrase has shifted with the political winds to suit the whims of those in power at any given time.  As such, it represents an utter betrayal of the First Amendment and the rule of law.  And all the regulations that are pursued in the name of “serving the public interest” are really nothing more than crass political thuggery that have no relationship to what the public actually wants to see or hear.  The “public interest” should be what the public says it is, not a handful of unelected bureaucrats who want to spoon feed us nonsense we don’t want and then censor that stuff we actually desire.

The folks at the Free Press can tell us that there is no linkage between the Fairness Doctrine and all these other regulations, but that doesn’t make it so.  At the end of the day, these regulations share many things in common, especially their hopelessly arbitrary, First Amendment-betraying nature.

Thus, the war for true media freedom will continue.  Nonetheless, it is important not to lose sight of the important win this week for that cause with both Congress and the Free Press acknowledging the anti-free speech, diversity-destroying nature of the UnFairness Doctrine.

Over just the past 24 hours, there’s been quite a hullabaloo surrounding the Wall Street Journal’s controversial front-page story on Google’s edge caching plan and whether it violates Net neutrality. (See Cord’s post and Bret’s). Lessig calls it a “made-up drama“, David Isenberg says it’s “bogus” and “bullshit,” and Google’s Rick Whitt has said it’s much ado about nothing.

Regardless, here’s the important thing not to overlook about this episode: It is a prime example of the what Tim Lee has referred to as “the fundamental problem of backlash” that ensues whenever there is even a hint of a potential violation of network neutrality (however one defines it). As Tim argued in his excellent Cato paper on Net neutrality, “No widespread manipulation would go unnoticed for very long,” and a “firestorm of controversy would… be unleashed if a major network owner embarked on a systematic campaign of censorship on its network.” (p. 23). Indeed, this (non-)story about Google’s edge-caching plans have spawned an intense “firestorm of controversy” over the past 24 hours and it doesn’t even involve serious network meddling or censorship! I’ve been trying to keep up with all the traffic about this on TechMeme and Google News during that time, but I have given up trying to digest it all. (Take a look at those snapshots I pasted down below to get a feel for the volume we are talking about here).

In that regard, I love this quote from the always-bloodthirsty Tim Karr of the (inappropriately-named) regulatory activist group Free Press:

If Google or any other tech company were secretly violating Net Neutrality, there would be an absolute and cataclysmic backlash from the grassroots and netroots who have made Net Neutrality a signature issue in 21st Century politics. The Internet community would come crashing down on their heads like Minutemen on Benedict Arnold.

Indeed, that’s exactly what we saw today. But it wasn’t just pro-regulatory fanatics like Free Press. The entire tech and business blogoshere and even some of the mainstream media were on top of this. That’s the “fundamental problem of backlash” at work, and with a vengeance.