Friday, September 12, 2003

Rights and Reason: Essential Stern

For once, Howard Stern won one before the Federal Communications Commission. The issue wasn't whether Stern's morning radio program contained obscenity, but whether Stern could interview Arnold Schwarzenegger without violating the "equal time" rule. Under longstanding policy, if a broadcast television or radio outlet interviews one candidate in a political race, it must offer equal time to all opposing candidates. This is allegedly done to protect the "public interest" in balancing political views.

The equal time rule does not apply to "news interview" programs, such as Meet the Press or the NBC Nightly News. Thus, Stern applied for classification as a "news interview" program to free him from the equal time rule. The FCC granted this request, incurring the wrath of self-proclaimed media watchdogs, such as the Media Access Project's Andrew Schwartzman, who told the Washington Post, "[The FCC has] removed the notion that a bona fide news interview show is supposed to apply to journalists. If Howard Stern is a real journalist, real journalists should be upset."

Schwartzman's argument is deftly handled by former Reason editor Virginia Postrel:
God forbid that people get their "news and information" (as the local news shows put it) from sources other than government-certified journalists. This contempt for unorthodox sources is particularly disingenuous coming from [Schwartzman] whose organization supposedly "promotes the public's First Amendment right to hear and be heard on the electronic media of today and tomorrow."

The very silliness of having to declare Howard Stern a journalist reveals how ridiculous and antithetical to the free flow of ideas our broadcast regulation is. As [CBS late night host Craig] Kilbourn points out in his [New York] Times op-ed, cable shows don't suffer from the same constraints. Like print, they're free to provide whatever interviews, information, and entertainment, they think will serve their audience, without government editors telling them what to include or omit. That's called freedom of speech and the press. It ought to apply to radio and over-the-air TV as well--with no Stern exceptions needed.
Because airwaves are still considered "public" property, rules like the equal time policy continue to exist. But that doesn't mean all non-broadcast media are immune from regulatory censorship. As I've discussed for months, the Justice Department's antitrust prosecution of Village Voice Media and NT Media was designed specifically to expand regulatory control over so-called "alternative" publications. In that case, the DOJ defined alternative media as akin to an "essential facility," which under antitrust doctrine means the Government can arbitrarily deny First Amendment protections to the acts of alternative newspaper publishers.

The theory is simple: Once a media form becomes profitable and widely-used, the Government seeks to regulate it as "essential" to the public interest. In other words, property rights exist until enough consumers demand access, then the "public interest" supersedes any private property right. And of course, the public interest can only be determined by government regulators, preferably lawyers, and not the public itself through the free market.

And as Postrel notes, the established media market often has an interest in supporting regulators. Holding certain programs to the equal time rule creates an effective barrier to entry for those who would compete with established media. If Arnold Schwarzenegger, for example, can't go on Craig Kilbourn's show to promote his candidacy, he's forced to use conventional media outlets that may not get his message across as effectively.

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