Inside the First Amendment, by Gene Policinski

The First Amendment establishes our right to a press free from intrusion, regulation or intimidation by the government.

As to a right to be free from questions by a national “news nanny,” it’s all in how you view the ultimate intent.

A few weeks ago, a Republican appointee to the Federal Communications Commission kicked up a fuss — particularly among conservative groups — about a planned FCC study of how journalists make news decisions.

Commissioner Ajit Pai wrote an Op-Ed column Feb. 10 in The Wall Street Journal saying the commission’s “Multi-Market Study of Critical Information Needs,” or CIN, meant “the agency plans to send researchers to grill reporters, editors and station owners about how they decide which stories to run,” starting with a pilot program in Columbia, S.C.

“The purpose of the CIN,” Pai wrote, “ … is to ferret out information from television and radio broadcasters about ‘the process by which stories are selected’ and how often stations cover ‘critical information needs,’ along with ‘perceived station bias’ and ‘perceived responsiveness to underserved populations.’”

Noting that the FCC has the power to renew or deny broadcast licenses, Pai wrote that the voluntary study was anything but that. He wondered why the study also included newspapers, over which the FCC historically has had no authority.

As happens in today’s polarized political environment, liberal observers took a different tack, saying the study was prepared with the help of USC’s Annenberg School for Communication and Journalism, and was simply part of an ongoing FCC obligation to periodically report to Congress on how well the public gets information it needs, and what hurdles may exist to improving that process.

On Feb. 21, the FCC backed away from its plan. “Any suggestion the Commission intends to regulate the speech of news media is false,” FCC spokeswoman Shannon Gilson said. A revised study will be conducted, but journalists and news media owners will not be asked to participate.

So: An outright assault on a free press — with, as the more florid claims said, official “news monitors” in every newsroom? Or a benign bureaucratic survey that began more than two years ago, created in cooperation with the very journalists it was intended to examine?

Lest we forget, there’s nothing in the First Amendment that protects the press from questions, criticism and review, by anybody. But when government does so, it merits extra caution and concern — if not claims that that “media sky is falling.” The government“s record on good intentions and the news media can provide enough cause to worry.

Just seven years after the Bill of Rights, with its First Amendment, was adopted, Congress approved and President John Adams signed a law that provided for prosecution of editors critical of either one. Within a few years the law was allowed to expire, having lost public support after more than a dozen journalists were jailed under the pretense of inciting war with France, which some saw as a mere excuse to eliminate political opponents.

Attempts by the government to restrain the press prior to publication have, through the years, ultimately have been ruled unconstitutional by the U.S. Supreme Court, notably in the so-called “Pentagon Papers” case in 1971 when the Nixon administration tried to prevent publication of a secret report on U.S. involvement in Vietnam.

And the FCC itself created a prime example of good intentions-gone-wrong with the history of its Fairness Doctrine, enacted in 1949. The commission was concerned then about the concentration of news outlets in a few hands, and the doctrine required broadcasters to provide information and varied views on matters of public interest.

Several decades later, it was evident virtually all electronic news outlets chose the safest path to avoid violating the doctrine: Providing no opinion. Once common “broadcast editorials” disappeared. Discarded by the FCC in 1987, the doctrine was made further obsolete by the proliferation of cable TV stations, and by the diversity of outlets and information available on the Internet — which some says makes the entire commission an anachronism and unneeded.

Still, surveys show that broadcast TV remains the largest single medium by which the public gets news — and both liberals and conservatives find reason to regularly criticize all or part of that news media. Newspapers clearly face financial hurdles — and tens of thousands of jobs in journalism have been lost in the past 20 years.

Yes, how well the news media are meeting their obligation to readers, viewers, listeners and users is a worthy subject of study — and is regularly, by non-profit organizations, private media monitoring groups and an ever-vocal host of individual critics.

Regulators doing that very studying should raise caution, if not the panic voiced by some commentators. Might not a “study of the studies” and reviews of oft-expressed criticism be more efficient and just as informative for that portion of the FCC’s examination of the news media today?

In addition to providing its critics with an easy target, the pilot FCC study also provided its own benediction: “Go forth and CIN no more.”

 

Gene Policinski is chief operating officer of the Newseum Institute and senior vice president of the Institute’s First Amendment Center. He can be reached at gpolicinski@newseum.org.