Back Door Press Control; M. Barger

Back Door MELVIN D. BARGER Press Control THERE'S A NOTE of genuine anxi ety in the current wave of news paper articles and editorials pro testing the recent government at tacks on the press. In the past, such warnings sounded a lot like the boy who was merely crying, "Wolf." But it's now clear that many newsmen do feel threatened and are seeking public support in defending the traditional free doms of the First Amendment. They may be seeking the im possible. The government, long denied the right to impose direct licensing or controls on the press, may soon be able to establish press control by indirect methods. Such indirect methods grow out of Federal and state power to regulate business, professions, and indus try. It is true that some businesses are not presently controlled by Fed eral regulations or are only partly regulated. No matter. The pattern of Federal regulation was estabMr. Barger is a corporate public relations ex ecutive and writer in Toledo, Ohio.

lished long ago, and is available for immediate use whenever the oppor tunity to impose additional regula tion presents itself. This new threat is an ironic development because nobody can accuse newsmen of failure to stand up and be heard when di rect attacks were being made on press freedom. Time and again, newspapers ha ve thoroughly roasted and ridiculed government officials who tried to intimidate reporters and censor newspapers. There was mass cheering on most editorial pages when The New York Times won its celebrated Pentagon Papers case. Newsmen have been quick to close ranks when a maverick columnist such as Jack Anderson has been direct ly threatened by the government. Every journalism textbook care fully presents the case for press freedom, and there's probably not a reporter in the country who doesn't know the classic story of 105 106 THE FREEMAN February John Peter Zenger 1 and similar milestones in the fight for press freedom.

But indirect, or "back door," attacks on press freedom are an other ball game, and it may be that the popular newspaper col umnists and writers don't know how this new game is played. Many of them, in fact, supported the adoption of the very control measures that now threaten the press. Over the past 50 years, a large number of newspaper writ ers and commentators have cla mored for additional government regulation of business and indus try. But few have bothered to ask what the effect would be on press freedom once intensive regulation of business became a reality. They have apparently felt that news papers and magazines could exist as islands of freedom in a com pletely regulated society. But it is not working out that way in prac tice. Press freedom is now being threatened in several ways that 1 John Peter Zenger, printer of the New York Weekly Journal, was jailed in 1734 on charges of seditious libel for labeling Governor William Cosby a ty rant and oppressor of the colony. A brilliant lawyer named Andrew Hamil ton won Zenger's acquittal in a trial· by jury, effectively ending "seditious libel"

as an instrument for press control. Har old L. Nelson and Dwight L. Teeter, Jr., Law of Mass Communications (The Foundation Press, Inc., Mineola, N. Y., 1969) pp.23-26. differ radically from the old direct attacks on First Amendment rights. Here are some recent trends: • Proposals are being made to license newsmen. The central issue in a 1931 landmark case called Near vs. Minnesota 2 involved "prior restraint" of the press. It has been well-established that any form of government licensing of publishing also would result in . prior restraint of the press and would be a denial of First Amend ment rights. Congress later created a legal limbo in this area when it passed the Federal Communications Act of 1934, establishing governmental licensing of broadcasters. There has been good reason to fear that the same principle would eventually be extended to cover print media. But with the mounting govern2 "Near vs. Minnesota involved a scandal sheet published in Minneapolis by J. M. Near and a partner who ran afoul of an extraordinary Minnesota law. The famous Gag Law provided that it was a public nuisance to engage in the regular, persistent publication of a 'ma licious, scandalous and defamatory' peri odical. The state could step in, stop and permanently suppress such a publication.

If a publisher disobeyed an injunction against his publishing, and resumed it, he could be punished for contempt of court. Under the law, Near was enjoined from continuing to publish his Saturday Press. He challenged the constitutionality of the law, and the United States Supreme Court reversed his conviction." Ibid., p. 409.

1974 BACK DOOR PRESS CONTROL 107 ment attacks on broadcasters, newspapers have finally begun to be alarmed and are calling into question the rationale for broadcast licensing. But professional licensing is an other matter. For a long time, state licensing of doctors and den tists has been widely recognized and accepted, and has been readily embraced by the members of the licensed professions as a mark of status and also as a means of ex cluding others from entry to the field. The public has been schooled to believe that licensing raises the standards of a profession and ex cludes crackpots and incompetents. (Not to be outdone, practitioners of trades such as barbering and plumbing have followed suit, al though the chief advantage to the public is the privilege of pay ing higher prices for haircuts and plumbing than would otherwise be possible!) The rationale for licensing news men is that incompetent reporters lack the education and judgment necessary for handling the news in the best interests of society.

According to an Associated Press story published in The Detroit Free Press on February 5, 1970, Dr. W. Walter Menninger advo cated licensing of reporters and news commentators with certifica tion to be approved or disapproved by peers or members of the news profession. Menninger, the only psychiatrist on the 13-member National Commission on the Causes and Prevention of Vio lence, was apparently echoing the oft-repeated view that newspapers cause violence by reporting it. He complained that reporters and news commentators may lack the basic understanding of such is sues as minority frustrations and may be inaccessible to the man on the street. This was not an isolated pro posal. The following month, a Michigan state representative named James Del Rio called for a special study of the possibilities of licensing and regulating news reporters and editorial writers. 3 In 1971, then United States Sen ator Jack Miller of Iowa told a New York County Lawyers As sociation that in his opinion jour nalists should be licensed, with each subject to "having his priv ilege . . . to practice his profes sion revoked for unethical con duct."4 The licensing proposal is very much alive, and is certain to get serious state legislative and Congressional interest in the fu ture.

3 Associated Press report in The Jack son Citizen Patriot, Jackson, Michigan, March 11, 1970, p. 3. 4 A Free and Responswe Press, Task Force Report for a National News Coun cil, (The Twentieth Century Fund, New York, 1973), p. 14.

108 THE FREEMAN Februa,ry Whatever the arguments for licensing newsmen, the result of such an action would be to place the control of news and opinion under the government. It would be prior restraint of the worst kind. It would give bureaucrats a lethal tool for excluding the very journalists who questioned their activities. It would effectiveiy end any tendency to criticize the gov ernment or the party in power. After all, "unethical conduct" is really a subjective term, and among politicians any news story is unethical if it is unfavorable to them. But this threat to First Amend ment rights, be it remembered, did not come to life in a vacuum. It is a natural outgrowth of the elab orate system of licensing and cer tifying members of other profes sions. If newsmen are, disturbed over this threat to freedom, per haps they should reexamine the entire concept of professional licensing. There is a great deal in this type of licensing that is a form of restraint of trade. It is not surprising that the system could easily be extended to in hibit freedom of expression. The proposal to license newsmen is getting serious attention only be cause other licensing schemes have become accepted and have been promoted by the various trades and professions. Itwas bound to reach the journalist pro fession someday.

• Proposals have been accepted for a voluntary press council to review the performance of the various media. Early in 1973 the Twentieth Century Fund' an nounced that it had formed a N a tional News Council to scrutinize the national press, including broadcasters, and investigate com plaints from the public about fair ness and accuracy. The core of the media council idea, according to the Fund, "is the effort to make press freedom more secure by pro viding an independent forum for debate about media responsibility and performance, so that such de bate need not take place in gov ernment hearing rooms or on the political campaign trail."5 On the face of it, the News Council proposal sounds construc tive and it's certainly within the right of any voluntary organiza tion to set itself up to monitor the press. But unless it's very unus ual, the Council will soon be cap tured and dominated by individ uals who have an ax to grind.

There will be the problem of mon itoring the Council's own fairness and accuracy at the same time it is supposedly examining these qualities in the media. 5 Ibid., pp. 3-5.

1974 BACK DOOR Pl:tESS CONTROL 109 Government Supervision There is also the possibility (indeed, the probability) that the work of the' Council will pave the way for some form of government supervision of the press. This is always the risk in voluntary ef forts that are based on the idea of "cleaning-up-our-own-house-be fore-the-government-does-it-for us." The government is often un able to "clean anybody's house," not even its own, but it does have the power to force outward com pliance that gives an appearance of improvement. Voluntary pro grams never can hope to bring about total compliance in the way that compulsory programs do. It is not hard to predict that com pulsory measures will appear more attractive if the voluntary efforts of the Council fail to bring the desired results in media pe,r formance. The News Council is also an other example of a disturbing trend, the establishment of "rep resentative groups" who are sup posed to act in the public interest.

There are 15 members of the Coun cil's task force and, not surpris ingly, there's a person who sup posedly represents every race, group, or class. As a rule, the representatives selected are prom inent but not usually controver sial. The theory seems to be that of giving everybody representation by selecting a member of his group or class. One fallacy in this practice is that highly publicized members of a representative group do not al ways represent the people for whom they allegedly speak. Quite often, they are merely people who have been able to gain a certain prominence in a particular field or have access to a number of polit ical figures. But it is a mistake to believe that such prominence means they can speak for all mem bers of their race or group. It is always possible to find cross-cur rents of opinion in any ethnic or religious group. One prominent spokesman who "represents"

blacks or Mexican-Americans may demand that newspapers conceal any racial or ethnic identifications in news stories. But other mem bers of the same group may, for reasons of their own, feel that such identifications serve a con structive purpose. Their views will not get an airing in a typical panel of "representative groups." • Demands are being made for "rig ht of acc'ess." One of the lat est bids for control over the press is the advocacy of "access to the ,press as a First Amendment Right." The proponent of this de mand is a law professor named Jerome A. Barron, who argued quite convincingly in a law re110 THE FREEMAN February view article 6 that new laws are required to meet the changing conditions of modern times. Bar ron insists that technological and economic changes have made the First Amendment ineffective and inadequate as a means of imple menting the free flow and distri bution of new ideas. In fact, he believes that the Amendment is actually used by monopoly news paper owners as a protective cover for refusing to publish unpopular views. He argues that there can be no real "marketplace of ideas"

if there is no corresponding right to have one's ideas published in major newspapers, particularly newspapers having monopoly status. He also deplores the profit seeking aims of these newspapers and suggests that the owners are neglecting their true responsibil ities when they publish bland and popular material while excluding articles of greater depth. Change first Amendment To provide access to the press, Barron wants definite changes in the present interpretation of the First Amendment. He believes that the Courts can make such (3 Barron's proposal for right of access was thoroughly presented in the Harvard La,w Review, Vol. 80 :1641, 1967. (Har vard Law Review Association, Cam bridge, Mass.) Similar articles by the same author have appeared in other pub lications. change by extending their inter pretation of the First Amend ment to include right of access. Failing that, he proposes legis lative change, a new law, that would have the same effect.

There are a number of fallacies and pitfalls in Barron's proposal, which has been getting serious attention in intellectual circles. 7 For one thing, he focuses on pop ular mass media, completely ignor ing the diversi ty of other media that can often be useful to an aspiring writer or advocate of so cial change. A good example of the effectiveness of small-circula tion media is the case of, Ralph Nader, who was virtually unknown a dozen years ago. His earlier attacks on the auto industry were published in small-circulation journals before they were picked up by the popular press. In this case, the First Amendment was effective in giving Nader the right to publish his views, but it was up to Nader to prove that his ideas merited broader distribu tion. There is no way that the publishers of large circulation newspapers could have known in advance that Nader's ideas would catch on with the public, just as 7 For a variation of Barron's argu ment, readers should consult The Rights of Americans, (Pantheon Books, New York, 1970); article beginning onp. 276, entitled, "The Right of Access to Mass Media," by John De J. Pemberton, Jr.

1974 BACK DOOR PRESS CONTROL 111 there is. no way of picking out the popular writers and advocates of tomorrow from among the hun dreds who are now struggling to get their views accepted. With thousands of small newspapers and other publications available as a proving or testing ground, these writers cannot truthfully say they are excluded from print. Barron himself was able to get his argu ments published in law review publications and thus became in dentified with a certain viewpoint that is now getting serious na tional consideration. To put it an other way, Barron's success in getting his views known is an ex cellent answer to his own argu ment. A Nightmare in Practice The more disturbing problem is not the success or failure of the individual writer, but what really happens to First Amendment rights if "access to media" be comes a law. The Barron proposal is one of those arguments that sounds reasonable in theory but can become a nightmare in prac tice. He does not explain, for ex ample, how equitable methods of providing access to the press can be developed without damaging the objectivity and effectiveness of newspapers. He does not really deal with the possibility that "ac-· cess" laws in practice would turn out to be disguised forms of prior restraint. He fails to explain how "access" rights can be allocated when an unusually large number of groups are demanding desirable newspaper space for their own viewpoints.

Barron also evades the greatest danger of his proposal-the likeli hood that it will result in news papers being subjected to Federal regulation of the type now im posed on broadcasters. It is true that no regulatory body would be established simply by new rulings giving increased "access" to the media. But continuing dissatisfac tion with access rights would cer tainly lead to the demand for some Federal body or communications czar to supervise the process of granting access. The result would be de facto regulation. • Shortages, general increase in controls. Although they often rep resent themselves as public inter est organizations, newspapers and other media are businesses which have the central purpose of pro ducing earnings for their owners. There has been some attention focused on the business problems of a few leading publications and the failures of several popular magazines. In fact, however, many newspapers and broadcasting out lets are highly profitable, with earnings margins that would be 112 THE FREEMAN February envied by most manufacturers and retailers.

Being profit-seeking businesses, newspapers cannot escape the reg ulations and restraints that are being imposed on other privately owned businesses. If the govern ment continues to expand its reg ulation of business "in the public interest," it will expand its con trol over newspapers and various other media. Soon or late, the gov ernment will also involve itself in such matters as news content, fairness of news presentations, and the effect of news on personal behavior. It is becoming widely accepted that the government has the responsibility to regulate such matters, so it is also likely that the government will use all of its powers to carry out that respon sibility. This tendency to employ all of its powers to gain certain ends seems to be an accepted way of operating in American govern ment, and probably any govern ment. For example, people who are having trouble with the Exec utive Branch of the government may find themselves getting a sud den audit from the Internal Rev enue Service, an audit that has nothing to do with suspected fi nancial irregularity but may be only a form of· harrassment. It is not hard to see that this form of harrassment could have infinite variations once the government gained considerable control over such matters as the allocation of newsprint, the location of news paper plants, the hiring and firing of news personnel, pricing of ad vertising and other services, and performance in meeting pollution and environmental standards.

Reconsider ~he Marketplace In the changing social climate of the 1970s, it is likely that ad ditional forms of "back door press control" will be developed to sup plement the trendS' discussed in this article'. Back door press con trol, like most efforts of an in direct nature, is very difficult to detect. It usually arises as a hid den component of another pro posal that seems socially desirable or reasonable. It seems reason able, for example, to license pro fessional people in the public in terest. It is only upon closer examination that the licensing proposal is seen as an indirect form of control. And it is not al ways the government that uses this control for its own purposes. In an organization of licensed professionals, the majority can use licensing control as a means of bringing minority dissenters into line. During the past few years - in deed, during the past few months - it has been made clear that gov1974 BACK DOOR PE~ESS CONTROL 113 ernment officials are not above using underhanded and even crim inal methods in.. getting their way.

Yet the problem of American gov ernment is not that a certain group of rascals came into office and used their powers for self serving purposes. The problem is that government already had been given excessive powers and con trols over people's lives. If newsmen are alarmed by the government's growing power to control them they should take a fresh look at the kind of controls that are already mandated for business, industry, and profes sional groups. They should study the nature of the marketplace for goods and services, which is linked more closely than they care to ad mit to the marketplace for news and ideas. There really can be no such condition as a completely regulated marketplace for goods and services without a correspond ing attempt to control news and John Stuart Mill ideas. In fact, an effort to permit considerable freedom of the press eventually would become intol erable to those who have the responsibility for establishing or der and compliance in other seg ments of society.

Businessmen who have squirmed under attacks by obviously "anti business" newsmen should not take pleasure in the rising threats of back door press control. Amer ican society has already lost con siderable freedom through an at titude of "it-serves-them-right" or "they-brought-this-regulation-on themselves." It is unfortunate when the fist of tighter govern mental control closes on any seg ment of society. But it is even more unfortunate that newsmen did not understand the nature of government regulation and con trol. It had to reach them some day, and it came in through the back door that was opened by regulating and controlling others. IDEAS ON LIBERTY A STATE which dwarfs its men, in order that they may he more docile instruments in its hands - even. for heneficial purposes will find that with small men no great thing can really he ac complished. On Liberty LEONARD E. READ By directing that industry in such a manner as its produce may be of the greatest value, he intends only his own gain, and he is in this, as in many other cases, led by an invisible hand to promote an end which was no part of his intention.