Author: Dan Kennedy

Newspapers executives have the right to charge whatever they want for their products, be it the print edition, Web-site access or speciality channels such as Kindle and mobile editions. The public, in turn, has the right to decide whether to buy or seek its news elsewhere.

What news organizations do not have a right to do is raise the price of what they produce by creating artificial scarcity through an illegal cartel.

Thus it was that Los Angeles Times media columnist Timothy Rutten’s latest commentary became the talk of the Twitterverse over the weekend. Jay Rosen, Dan Gillmor, Vin Crosbie and I were among those kicking Rutten’s column around.

Rutten, in calling for an exemption from federal law so that newspaper companies can collude on a plan to charge for online access, made some important points about government’s role in fostering a free and independent press. In particular, he singled out the favorable postal rates going back to the earliest days of the republic as a key factor in the rise of a vigorous Fourth Estate. (Paul Starr, in his 2006 book “The Creation of the Media,” traces those postal policies to Colonial times, and identifies them as an important reason that newspapers and magazines became a mass medium in the United States in a way that they never did in Europe.)

But Rutten undermines his argument with unwarranted arrogance, including flashes of anger, at what has happened to his business. Here is a particularly choice passage:

[I]f Congress acts as it should, it will do so not on behalf of newspapers but for their readers. The press, after all, does not assert 1st Amendment protections on its own behalf but as the custodian of such protections on behalf of the American people.

Stating that the press is the “custodian” of the First Amendment is breathtaking not only for its insular cluelessness, but also because it goes against basic constitutional principles. Rutten should re-read the Supreme Court’s landmark Branzburg v. Hayes decision of 1972, in which Justice Byron White explained in ringing language why it would be wrong to grant journalists a constitutional privilege to protect their anonymous sources:

[L]iberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.

I don’t think White got it entirely right — surely certain types of journalism could be protected, as opposed to a professional class of journalists. But he’s inspiring in his assertion that the First Amendment belongs to all of us, and that we the people, not the press alone, are its custodians. Today, of course, the pamphleteers are armed with computers; they are legion, and they are not lonely.

Like Rutten, I want to see the newspaper business find a way out of the mess it’s in. Outside of newspaper Web sites, sources of news that consumers do not have to pay for — principally television and radio stations and their Web sites — do a fine job with the basics of local coverage.

But let’s take the Boston Globe as an example of two entirely different dilemmas. Yesterday’s edition included two stories that required a considerable amount of journalistic enterprise — a deep analysis of Boston Mayor Tom Menino’s development record and an investigative feature into the death of 7-year-old Nathaniel Turner, whose father has been charged with his murder. Those are the types of stories that are too expensive to do in the world of fast, cheap Web journalism.

On the other hand, have you seen the new WBUR.org? Combining news from its local staff with reports from NPR, the station’s Web site has the makings of a high-quality online newspaper. If the Globe started charging for access to Boston.com, maybe the Boston Herald would follow suit. But WBUR (90.9 FM), as a public station with hundreds of thousands of listeners, is going to keep its Web access free — as will New England Cable News and the city’s broadcast television and radio stations. Given that there is a considerable amount of overlap in the Globe’s and WBUR’s audiences (affluent, well-educated, liberal), the Globe would charge for Web access at its peril.

Absolutely no one knows the way forward for the troubled newspaper business. My own hope is that, once the recession ends, newspapers can thrive through a combination of smaller-circulation but more-expensive print editions, subscription fees for non-Web speciality products for the Kindle, cell phones and the like, and a more imaginative approach to Web advertising.

What makes no sense whatsover is the Rutten plan: a backroom deal to charge for something that readers have made clear they are not willing to pay for.