Des Moines Register calls for charges against reporter to be dropped

In an editorial that’s getting a lot of national attention, the Des Moines Register is calling for a criminal case to be dropped against one of its reporters, Andrea Sahouri, who was charged with failure to disperse and interference with official acts. Sahouri was arrested at a protest on May 31 last year. Her trial is scheduled for March 8. The Register puts it this way:

Sahouri, who has worked as a reporter for the Register since August 2019, was doing her constitutionally protected job at the protest, conducting interviews, taking photos and recording what was happening.

If convicted, she’ll have a criminal record and faces possible penalties of 30 days in jail and a fine of $625 for each offense.

The editorial also notes that the U.S. Press Freedom Tracker has documented 126 arrests and detainments of journalists in 2020, most of them at Black Lives Matter demonstrations.

And though the police killings of George Floyd and Breonna Taylor may resulted in a massive increase in such detentions, there’s nothing new about it. In 2018, police in Bridgeport, Connecticut, detained a reporter during a Black Lives Matter protest in a transparent attempt to stop her from doing her job. Their actions were the subject of a 2019 GBH News Muzzle Award.

The fairness doctrine is dead and buried. Let’s stop trying to bring it back to life.

Following the death of Rush Limbaugh, a number of observers — including me — noted that Ronald Reagan had paved the way for him and other right-wing talk show hosts by ending enforcement of the fairness doctrine. That rule, part of the FCC’s toolbox for decades, required broadcasters to air opposing views and offer equal time to those who had been attacked.

So why not bring it back? It’s a suggestion I’ve seen a number of times over the past week. But though the idea of enforcing fairness on the airwaves has a certain appeal to it, the fairness doctrine is gone for good, and for some very sound reasons. For one thing, it applies only to broadcast, a shrinking part of the audio and video mediascape. For another, you can’t apply it to new technologies without violating the First Amendment.

The U.S. Supreme Court case that upheld the fairness doctrine and that simultaneously started the clock ticking on its eventual demise is Red Lion Broadcasting v. FCC, a 1969 decision based on the “scarcity rationale” — the theory that because the broadcast spectrum is limited, it may be regulated in the public interest.

The unanimous decision, written by Justice Byron White, involved an evangelical preacher named Billy James Hargis, who anticipated the likes of Jerry Falwell and Pat Robertson by a good decade. In a 15-minute tirade, Hargis attacked a journalist named Fred J. Cook, who had written a critical biography of Barry Goldwater, the 1964 Republican presidential candidate.

According to Hargis, the newspaper where Cook had worked fired him for making false accusations against city officials, and was a communist sympathizer besides. Cook contacted the Red Lion-owned radio station in Pennsylvania where he’d heard Hargis’ rant and demanded equal time. Red Lion refused, citing its free-speech protections under the First Amendment.

Justice White’s decision follows two main threads — that the FCC was well within its authority, as granted by Congress, to enforce the fairness doctrine and order Red Lion to provide Cook with an opportunity to respond; and that the reason the FCC had such authority was because of limits to the number of radio stations that can be on the air in a given coverage area. For instance, White writes:

Before 1927, the allocation of frequencies was left entirely to the private sector, and the result was chaos. It quickly became apparent that broadcast frequencies constituted a scarce resource whose use could be regulated and rationalized only by the Government. Without government control, the medium would be of little use because of the cacophony of competing voices, none of which could be clearly and predictably heard.

Later on, he adds:

Because of the scarcity of radio frequencies, the Government is permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium. But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.

Red Lion argued, among other things, that technological advances were making the fairness doctrine obsolete. Justice White replied that new uses for additional broadcast spectrum were quickly eating up that additional capacity, and that the demand was likely to exceed supply for many years to come. It was a crucial point — and it also anticipated the situation that developed in the post-Reagan era.

White’s decision explains why the scarcity of broadcast spectrum was the key to upholding the constitutionality of the fairness doctrine. I want to drive that home for those who think a new fairness doctrine could be applied to, say, satellite radio, cable television and the internet. Without scarcity, there is no constitutional rationale for the regulation of content. And with cable and satellite, there are hundreds of options; with the internet, the choices are theoretically infinite.

If Fred Cook wanted to respond to the not-so-good reverend today, he could attack him on Twitter, start a podcast, set up a blog — whatever. But he would not be able to demand redress from the radio station given that he would have multiple other ways of making his voice heard. (He could also sue for libel if he believed Hargis’ words were false and defamatory.)

The central role that scarcity plays in these legal calculations can be seen in another case where there was no scarcity — Miami Herald Publishing v. Tornillo (1974), in which the Supreme Court unanimously overturned a Florida law requiring newspapers to offer a right of response to political candidates who had been criticized.

In a unanimous decision, Chief Justice Warren Burger writes that even though media concentration and the demise of newspaper competition had led to a scarcity problem similar to that which prevailed in broadcast, it was the result of market forces rather than the unbreakable physical limitations of the broadcast spectrum. In order to start an over-the-air radio or television station, you need a license from the government, whereas anyone, at least in theory, is free to start a newspaper. Burger writes:

[T]he implementation of a remedy such as an enforceable right of access necessarily calls for some mechanism, either governmental or consensual. If it is governmental coercion, this at once brings about a confrontation with the express provisions of the First Amendment and the judicial gloss on that Amendment developed over the years.

First Amendment protections are extraordinarily high, and they can only be breached for extraordinary reasons.

When Reagan’s FCC stopped enforcing the fairness doctrine in 1987, it cited the rise of cable TV as signaling the end of scarcity. I would argue that the FCC acted too soon. But by the mid-1990s, there was no longer any good reason for the government to regulate speech simply because it had been broadcast over the public airwaves.

Rush Limbaugh, Fox News, Alex Jones and the like have done serious damage to our democracy. But as Justice Louis Brandeis wrote in 1927, “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

Become a member of Media Nation today.

 

‘Mogul Roulette,’ or the totally random destruction of local news

Previously published at GBH News.

In response to the rampaging vulture capitalism that was threatening to destroy their newspaper, union employees at the Hartford Courant last year launched a campaign to find a nonprofit organization that would save their jobs and the journalism their community depends on.

Not only did they fail, but the situation at the Courant, the oldest continuously published newspaper in America, just got infinitely worse.

Meanwhile, 300 miles to the south, a similar effort was under way to save The Baltimore Sun. It paid off big-time, as the Sun and several sister papers are now on the verge of being acquired by a nonprofit foundation that will operate them in the public interest.

No doubt you’ve read a lot here and elsewhere about the local news crisis, and about the role of hedge funds and corporate chain owners in hollowing out once-great newspapers that were already struggling.

Yet what we don’t talk about often enough is the sheer random nature of it all — and why we assume there’s nothing that can be done about a hedge fund destroying a paper here or a nonprofit or benevolent billionaire saving a paper there. We have been so conditioned to thinking that the untrammeled forces of the market must be allowed to play out that we’ve lost sight of what we’re losing. It shouldn’t be this way.

Last week was a particularly fraught moment in the collapse of local journalism.

First we learned that the hedge fund Alden Global Capital, the most avaricious newspaper owner in the country (don’t just take my word for it; as Margaret Sullivan of The Washington Post puts it, “Being bought by Alden is the worst possible fate for the newspapers and the communities involved”), was making a $630 million bid to increase its share of Tribune Publishing — whose holdings include the Courant — from 32% to 100%.

The announcement came with at least a little bit of good news: Alden would spin off The Baltimore Sun to a nonprofit. Even better, Patrick Soon-Shiong, the billionaire owner of the Los Angeles Times and The San Diego Union-Tribune, was in a position to block Alden if he so chose.

Rick Edmonds of Poynter speculated that wouldn’t happen. But hope springs eternal — or at least until last Friday. That’s when Lukas Alpert of The Wall Street Journal reported that Soon-Shiong himself might be looking to get out of the newspaper business less than three years after he got in. Worse, Soon-Shiong was said to be looking at offloading his papers to a larger media group. Though neither Alpert nor his soures said so, Alden would be the most likely buyer.

Soon-Shiong, fortunately, denied he’d lost interest in newspapers. But Alpert is a good reporter, so it’s hard to believe that there isn’t something to it.

Call it Mogul Roulette.

So let’s survey the landscape, shall we? Tribune’s papers, which include the Chicago Tribune, New York’s Daily News, the Orlando Sentinel, the Courant and others, will be gutted if the Alden deal goes through. In fact, the Courant is already operating with neither a printing press nor a newsroom.

On the other hand, The Baltimore Sun has been granted a new lease on life. We don’t know what’s going to happen in L.A. or San Diego. And, here and there, large regional papers with either strong private ownership (The Boston Globe, the Portland Press Herald, the Star Tribune of Minneapolis, The Seattle Times) or nonprofit control (The Philadelphia Inquirer, The Salt Lake Tribune, the Tampa Bay Times and, soon, the Sun) are providing their communities with the news and information they need, even if they still face challenges.

This situation is unacceptable. Reliable news is vital to democracy, and though we don’t necessarily need legacy newspapers to deliver it, they remain the most widespread and efficient means for doing so. As the media scholar Alex Jones has written, newspapers continue to produce the overwhelming share of accountability journalism that we need to govern ourselves — what Jones calls the “iron core.” We shouldn’t be dependent on whether the newspaper in our community is owned by someone who believes in journalism’s civic mission or who simply sees it as a piggy bank to be depleted before moving on to the next victim.

Several years ago I had a conversation about newspaper ownership with Victor Pickard, a scholar at Penn’s Annenberg School; he would later go on to write “Democracy without Journalism?,” a call for (among other things) greatly increased funding for public media. Why, I asked him, should communities have so little control over who owns their local newspaper?

We didn’t come up with any answers that day, although Pickard did suggest that antitrust laws be used more aggressively. These days, unfortunately, we are dealing with the antitrust legacy of Robert Bork, who developed a theory that any amount of monopolization is just fine as long as it doesn’t drive up prices.

The Bork doctrine makes no sense in the shrinking newspaper business. At one time Tribune Publishing, then known as tronc, proposed uniting the L.A. Times, the Union-Tribune and, in the middle, the Orange County Register, whose previous owner, Aaron Kushner, had steered into bankruptcy. Soon-Shiong could have been the savior of all three papers instead of just the two he bought from tronc. Instead, a federal judge ruled that such a combination would violate antitrust laws because it might drive up the price of ads. (Your honor, we need to drive up the price of ads.) Yet, paradoxically, Bork’s theories say nothing about giant chains stretching across the country and destroying local newspapers.

What comes next? Maybe Soon-Shiong will step forward and outbid Alden for the rest of Tribune, placing the entire chain in much better hands. Or maybe he’ll sell to Alden. In any case, it’s unacceptable for the fate of local journalism to be left to the whims of unbridled capitalism. We need to start thinking about what alternatives to that model might look like.

A year of unimaginable loss

Click here to watch video at WSJ.com

A year ago at this time I was recovering from the worst cold I’d had in years. Later, I thought maybe I’d had COVID-19 without realizing it. But it was impossible. I was with a lot of people. I would have become my very own super-spreader event.

And here we are at 500,000 deaths. On Monday I watched a video of President Biden, Vice President Harris and their spouses paying their respects while a military band played “Amazing Grace.” And, just as I had during the inauguration, I briefly got choked up.

At some point, I’m sure we’ll become accustomed to simple human decency at the White House once again and will start asking questions about Biden’s actual management of the pandemic. But I’m not there yet.

Monday night supper

Every so often I get codfish cakes from Whole Foods. Rarely, though, do I go with the full experience from my childhood. Tonight I decided to pull out all the stops and create a favorite meal my mother used to make.

So let me start with the fish cakes. Here is where a bit of mystery creeps in. As I said, I buy them and then bake them in the oven. What my mother did was very different, and it’s long since lost to memory. I wish I could ask her; I wish I could ask her a lot of things. But from what I remember, she started with a can of codfish, mixed it with other ingredients (potatoes, probably, since that seems pretty standard), formed it into cakes and fried them in a wrought-iron skillet. They were spectacular, and I wish I had the recipe — assuming you can even get canned codfish these days.

The rest is more straightforward. My mother made great cole slaw, but I didn’t appreciate it at the time. What you see here is from the Blue Ribbon BBQ in Arlington, and it’s almost as good as Mom’s. (Also excellent is the cole slaw at Woodman’s in Essex.)

The finishing touch, believe it or not, is canned spaghetti. I don’t know why, but it was always served with fish cakes, and it was always Franco-American. I’m not sure they make it anymore. What you’re looking at here is Campbell’s.

Served with ketchup, it’s a perfect meal.

Become a member of Media Nation today.

Can Gannett and McClatchy’s joint venture reinvigorate national advertising?

At root, the debate over whether Google and Facebook should pay for news is about how their duopoly destroyed the value of digital advertising and then kept most of the revenues for themselves.

News, which is expensive, can’t survive on the pennies brought in by Google’s programmatic ads. That’s why there’s been so much emphasis in recent years on reader revenue — an emphasis that, at least in a few places, is starting to pay off.

Still, it would surely be a positive if news organizations could develop a revenue stream other than digital subscriptions. When readers are empowered, they expect their preferences and prejudices to be catered to. You need a balance. That’s why it’s interesting to see Axios’ recent report that Gannett and McClatchy will combine forces to sell national advertising for their hundreds of local and regional papers.

Can Gannett and McClatchy’s efforts drive up the price of digital ads? That’s the real issue, and without that their effort is not going to have much of an effect. Of course, it also does nothing to boost ad sales at the local level, which have been on the decline for years. Yes, local businesses have gravitated to Facebook just like everyone else. But local newspapers aren’t exactly known for being aggressive and creative about selling to the local hair salons, pizza restaurants and funeral homes, either. It can be done. Just ask Howard Owens, publisher of The Batavian in western New York state.

The partnership shows why I differentiate between Gannett and Alden Global Capital, even though their nuke-the-newsroom approach to the bottom line looks very much the same on the ground. Alden, by all appearances, is trying to squeeze as much money as it can out of the newspapers it’s killing and then get out. Gannett, on the other hand, is hoping to build a community news chain that can be sustainable in the long run.

Gannett’s biggest mistake, carried over from its predecessor company, GateHouse Media, is that its executives think they can build for the future while failing to provide enough journalism to retain readers. No matter how smart your business model, it’s not going to work if all you’re offering your audience is a shell.

Become a member of Media Nation today.

Why you should watch Netflix’s Joan Didion documentary

Joan Didion in 2008. Photo (cc) 2013 by David Shankbone.

There is a moment in the Joan Didion documentary “The Center Will Not Hold” that says a lot about Didion, about writing and about journalism. The filmmaker, her nephew Griffin Dunne, asks her about a scene in her 1968 essay “Slouching Towards Bethlehem” (included in a collection of the same name) in which she describes a 5-year-old girl who’s tripping on LSD.

Didion thinks about it for a moment, her arms in motion from Parkinson’s disease, and then replies: “It was gold.” And so it was. Horrifying though the scene may have been, any journalist wants to be able to witness such things and tell the world about them. Didion’s account of 1967 Haight-Ashbury remains definitive, and it’s because of her eye for detail. Here’s the scene in question:

When I finally find Otto he says “I got something at m place that’ll blow your mind,” and when we get there I see a child on the living-room floor, wearing a reefer coat, reading a comic book. She keeps licking her lips in concentration and the only off thing about her is that she’s wearing white lipstick.

“Five years old,” Otto says. “On acid.”

The five-year-old’s name is Susan, and she tells me that she is in High Kindergarten. She lives with her mother and some other people, just got over the measles, wants a bicycle for Christmas, and particularly likes Coca-Cola, Marty in the Jefferson Airplane, Bob in the Grateful Dead, and the beach. She remembers going to the beach once a long time ago, and wishes she had taken a bucket. For a year now her mother has given her both acid and peyote. Susan describes it as getting stoned.

I start to ask if any of the other children in High Kindergarten get stoned, but I falter at the key words.

“She means do the other kids in your class turn on, get stoned,” says the friend of her mother’s who brought her to Otto’s.

“Only Sally and Anne,” Susan says.

“What about Lia?” her mother’s friend prompts.

“Lia,” Susan says, “is not in High Kindergarten.”

This is writing of the highest order. The documentary is on Netflix; I first watched it a couple of years ago and then again recently because I had assigned it to my opinion journalism class — along with her brilliant 1961 essay “On Self-Respect.” The documentary is flawed but riveting, mainly because Didion herself is riveting. She has been an icon for much of her career, and she still is. It is astonishing how many photos of her have been taken over the years.

In Googling around, I see that Rebecca Mead latched onto exactly the same scene when she reviewed the film for The New Yorker. How could she not? Since Mead was taking notes, here is Didion’s full quote: “Let me tell you, it was gold. You live for moments like that, if you’re doing a piece. Good or bad.”

Of course, there has been a lot more to Didion’s career than her description of Susan. She has a new collection out. She has written compellingly about the deaths of her husband and her daughter. She reported from El Salvador, which she says in the film was a terrifying experience, and on the Bush-Cheney White House. She was awarded the Medal of Freedom by President Barack Obama. Now 86 and frail, she is nevertheless still very much with us.

If you’re looking for something to watch on Netflix, you can do a whole lot worse than “The Center Will Not Hold.” Highly recommended.

Become a member of Media Nation.

Will Patrick Soon-Shiong stand up to Alden — or sell his newspapers?

Patrick Soon-Shiong. Photo (cc) 2019 by the World Economic Forum.

It was quite a week for Patrick Soon-Shiong, the billionaire surgeon who owns the Los Angeles Times and The San Diego Union-Tribune.

On Tuesday came the news that the hedge fund Alden Global Capital was offering $630 million to boost its share of Tribune Publishing from 32% to 100%. Alden would take Tribune private and then, presumably, do what it does: slash the newsrooms of the Chicago Tribune, the Hartford Courant and others to ribbons. One unexpected benefit: The Baltimore Sun and several sister papers would be acquired by a nonprofit foundation.

The complicating factor was that Soon-Shiong, the second-largest Tribune shareholder at 24%, has the right to veto Alden’s acquisition. Would he? Probably not, guessed Poynter analyst Rick Edmonds. “I would bet that getting out with a good return on his investment will be Soon-Shiong’s main or sole objective,” Edmonds wrote.

Then, on Friday, came a bombshell. Lukas Alpert of The Wall Street Journal reported that Soon-Shiong was looking to get out of the newspaper business less than three years after he bought the Times and the Union-Tribune from Tribune’s absurdly named predecessor, tronc.

“The move,” Alpert wrote, “marks an abrupt about-face for Mr. Soon-Shiong, who had vowed to restore stability to the West Coast news institution and has invested hundreds of millions of dollars into the paper in an effort to turn it around.” Soon-Shiong denied it, tweeting, “WSJ article inaccurate. We are committed to the @LATimes.”

We are left wondering what’s correct — “people familiar with the matter,” as Alpert described his sources, or Soon-Shiong’s on-the-record denial. Alpert is a good reporter, and presumably his sources are aware of at least some frustration on Soon-Shiong’s part. What’s especially worrisome is that Alpert’s sources say Soon-Shiong has come to believe his papers would be better off “as part of a larger media group.” Other than Alden or Gannett, it’s hard to imagine any other options. If Soon-Shiong is really tired of the business, why not sell them to a nonprofit?

Nevertheless, it’s hard for me not to think about all the times that John and Linda Henry have been rumored to be selling The Boston Globe since they bought it in 2013. Every so often they deny it, such as in 2018 and 2020. And there certainly haven’t been any signs that they’re selling.

Still, the Henry rumors never made it into The Wall Street Journal. Let’s hope that, whatever else comes out of the Tribune meltdown, Southern California’s major newspapers remain within the relatively safe orbit of Soon-Shiong’s protection.

Become a member of Media Nation.

Phillip Martin reflects on the fight against racism in Boston

Phillip Martin. Photo by Meredith Nierman / GBH News.

The Boston Globe Magazine has published a tremendous personal essay by my GBH News colleague Phillip Martin on coming to Boston in the 1970s to fight racism. He was so bruised and battered by the experience that he returned home to Detroit — only to come back a year later and stay. He writes:

Boston was a 1970s version of 1960s Birmingham, Alabama, in my view, with white grievance over desegregation and voting rights updated as white protests over school desegregation through court-ordered busing. That history was precisely why I enlisted, somewhat naively, to go to Boston in the summer of 1975: to fight against racism.

We’ve come a long way, though we still have a long way to go. Please read what Phillip has to say.

Facebook flexes its muscles, then claims it was all a mistake

Regardless of what really happened, this had the appearance of pure extortion.

In response to Australia’s new law requiring Google and Facebook to hold negotiations with news publishers aimed at compensating publishers for their content, Facebook took down not just news — which would be a proportionate response, I suppose — but all kinds of information.

The newly banned Facebook content comprises, as The Washington Post reports, “dozens of government and charity websites as well, including public health sites containing critical information about the pandemic during the first week of its coronavirus vaccine rollout.”

The information was restored about 12 hours later, and Facebook claimed it was all a mistake. Still, it was a powerful demonstration of what Mark Zuckerberg can do if you refuse to kiss the ring.