The Press: Still Free And Independent- Full Chapter

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Since the establishment of the United States as an independent nation, the concepts of freedom of the press and freedom of expression have been upheld by both law and custom. The freedom enjoyed by the American media is protected by the U.S. Constitution, by numerous federal, state, and local laws, and by a strong judicial tradition. However, in the past five years this tradition has come under strain. Among other things, the security measures following the September 11, 2001, terrorist attacks (hereafter, 9/11) and the consolidation of media ownership have presented journalists with new challenges in reporting the news.

Respect for freedom of the press in the United States is rooted first and foremost in the First Amendment of the Constitution. Although much First Amendment jurisprudence has pertained to freedom of speech in general and not to the press in particular, these cases have nonetheless been instrumental in establishing a legal tradition that supports media freedom.

In addition to such constitutional protections, the press benefits from numerous other safeguards, most of which have developed since the mid-twentieth century. These include laws establishing preferential access for the press to news conferences and courtrooms, freedom of information legislation, state shield laws, protection from police searches of newsrooms, and indirect government subsidies such as tax exemptions for media outlets.1 The allowable grounds for prosecuting the media for libel or so-called hate speech are considerably narrower in America than in many European countries, and attempts to prevent the press from publishing (otherwise known as “prior restraint”) are almost never upheld in court. In general, the print media are protected more fully than broadcast media, which are subject to a wider range of restrictions through the Federal Communications Commission (FCC).

However, legal protections for journalists have weakened in recent years. Access to official information has been circumscribed, and reporters’ ability to cover both foreign and domestic events has been, at times, curtailed. Increased political polarization has affected coverage as both public and private media outlets have been accused of either liberal or conservative bias. And while many of these strains are direct consequences of 9/11, the aftermath of the terrorist attacks is not the only force influencing the culture and freedom of the American press. Efforts by the administration of President George W. Bush to control or influence news coverage have led to reduced professional privileges for journalists, and the long-term trend toward the consolidation of major media outlets in the hands of a few large corporate owners has tested the quality and diversity of news coverage. At the same time, technology-driven changes in the way people receive their news have affected coverage in ways both positive and negative.

The ongoing power of the media to deliver the news and inform the American public despite these handicaps is evidence that freedom of the press remains robust even in a more volatile age and under pressure from a more antagonistic government.

 

History and Legal Background

 

In the colonial era that predated the United States, freedom of speech was limited by prepublication censorship, licensing for printing presses, and laws intended to punish blasphemy and seditious libel. However, with the adoption of the U.S. Constitution in 1789 and the accompanying Bill of Rights in 1791, press freedom and freedom of speech received explicit legal protection. “Congress shall make no law,” declares the First Amendment, “abridging the freedom of speech, or of the press.”2

Two caveats should be noted. First, the amendment initially applied only to the legislative branch of the federal government. Although many states chose to enshrine the concept of press freedom in their own constitutions, not until Gitlow v. New York(1925) was it decided that under the Fourteenth Amendment, the First Amendment must also apply to the states and to other branches of government.

Second, from the beginning the First Amendment did not prevent either federal or state authorities from restricting speech that was considered seditious, libelous, defamatory, blasphemous, or obscene, or from prosecuting citizens and media outlets that contravened these laws, especially during wartime or periods of political turmoil or polarization. For example, the Sedition Act of 1798, although originally aimed at French citizens living in America who were critical of then President John Adams, was used to punish the authors of a wide range of antigovernment writings. In the three years before it expired in 1801, more than 24 newspaper editors, all of whom were aligned with the president’s opponents, were arrested and tried, and a number were fined or jailed.3

During World War I, Congress passed the Espionage Act of 1917, which was intended to prevent speech or writings that could cause sabotage or interfere with military operations. More than 2,000 people were convicted for violating the act during and immediately after the war. The law was amended in 1940 and 1970 but remains in force today.4 Similarly, the Smith Act of 1940 criminalizes speech that advocates the overthrow of the government. This law has been used to suppress political dissent, particularly amid the vehemently anti-Communist atmosphere following World War II.5

The Supreme Court did not begin to interpret the First Amendment significantly or to adjudicate freedom of speech cases until the landmark case Schenck v. United States in 1919. In Schenck, the court articulated the important concept that speech had to present a “clear and present danger” for anyone to be prosecuted under laws designed to suppress it. This supplanted a more restrictive “bad tendency” doctrine that allowed the government to restrict speech that could lead to future lawbreaking.

Although Schenck introduced a comparatively liberal doctrine, it led to a number of convictions for sedition in the years between 1919 and 1968.6 However, 50 years later, Brandenburg v. Ohio (1969) expanded protections for speech by establishing the “incitement” standard for sedition, which held that unless speech led to immediate danger or imminent lawless action it was protected under the First Amendment.7

“Prior restraint,” referring to censorship that prevents speech from being published, was firmly rejected by the Supreme Court in the 1931 case Near v. Minnesota (1931). The court argued that it was better to prosecute offenses after the fact than to prevent publication. The ruling did allow exceptions on the grounds of “public decency” or “incitements to acts of violence and overthrow by force of orderly government,”8 but the federal government has only rarely attempted to impose prior restraint. Exceptions have included cases in which the information slated for publication was believed to include vital state secrets, such as the 1971 “Pentagon Papers” case (New York Times Co. v. United States) and books and articles written by former employees of the Central Intelligence Agency (CIA). Even in these situations, though, the courts have argued that it is incumbent on the government to show why the press should not be allowed to publish.9

Defamation, libel, blasphemy, obscenity, and hate speech are not absolutely protected by the First Amendment and can be subject to prosecution. However, in recent decades a number of attempts at prosecution have been rejected by the Supreme Court, and the grounds on which these cases may be pursued are currently narrow. In New York Times v. Sullivan (1964), the Supreme Court ruled that public officials who sue for libel must prove “actual malice” on the part of their critics, and subsequent rulings have extended this to apply to all public figures.10 In Garrison v. Louisiana (1964), the same court ruled that some criminal libel laws could be constitutional as long as actual malice was used as a test and truth could be used as a defense.

In the years following these two key decisions, a number of criminal libel laws were repealed or overturned in the states (there are no federal laws against libel or defamation), though most states have civil laws against libel. In the 17 states that retained criminal libel laws as of 2004, the statutes are rarely invoked.11 The last conviction occurred in Kansas in July 2002, when a publisher and an editor were sentenced to fines and a year of unsupervised probation after publishing an article that falsely accused local politicians of residing outside the districts they represented.12 Legal conditions in the United States are comparable to those in Western Europe, where all countries have civil libel laws and a number also have criminal libel provisions. However, Western European practices diverge noticeably from American law in that truth is less widely considered an absolute defense in libel cases.

U.S. law also offers far more protection for blasphemy and hate speech than the laws in most other democracies. Canada and practically every European country have laws against hate speech, and a number have laws prohibiting blasphemy as well. In some of these countries the laws are quite broad; in Denmark, for example, vaguely worded statutes effectively give the government great discretion in deciding whether to prosecute.13 Although the U.S. Supreme Court has ruled that—subject to caveats—state and federal law may censor “obscenity,” the court formally rejected the sort of blasphemy laws that exist in Europe in Joseph Burstyn Inc. v. Wilson (1952). And since Brandenburg, the court has protected many kinds of hate speech (and behavior) and has tended to reject laws that punish abusive, insulting, or offensive expression.

Historically, American journalists have also benefited from laws and jurisprudence that protect their access to official information and to governmental and judicial proceedings. In 1966, Congress passed the Freedom of Information Act (FOIA) with the explicit purpose of improving public access to government records. FOIA covers only federal agencies and exempts nine categories of information, including national security material, trade secrets, and privileged governmental communications.14A second federal law guaranteeing public access to government meetings, called the Sunshine Act, was passed in 1976. The Sunshine Act applies to the same agencies as FOIA and provides similar exemptions. All state and local governments have their own precedents or legislation mandating public access to most records, documents, meetings, legislative procedures, and lower-level court proceedings. Generally, the U.S. Supreme Court has reinforced these rules in the judicial arena. It has held that as a matter of First Amendment law, courtrooms should be open to the press unless there is convincing evidence that publicity would preclude a fair trial, and it has struck down many attempts to impose “gag orders” on the media.

Most journalists believe that their right to protect the identities of their confidential sources even in courts of law is a core professional privilege. However, legal recognition of this privilege has been inconsistent. The issue first came to public notice in the 1970s when the administration of President Richard M. Nixon subpoenaed nearly 200 journalists during his first two years in office. The Supreme Court addressed the matter in Branzburg v. Hayes (1972), a ruling which covered four separate cases involving three journalists who had been subpoenaed by grand juries. In a tight vote, the court rejected the journalists’ claim that they need not reveal their sources when subpoenaed.15 Some of the dissenting justices argued for an absolute journalistic privilege, while others said that a qualified version should exist based on a three-part test of relevance, alternative means, and compelling interest.16

Since then, lower federal courts have generally recognized the qualified privilege of source confidentiality based on this test. More than 30 states plus Washington, D.C., have shield laws designed to protect the right of source confidentiality, while courts in four other states without explicit shield laws have consistently ruled in favor of source confidentiality.17 However, there is still no national standard for source protection. Even in jurisdictions with shield laws, some statutes do not cover nonconfidential sources of information, while others do not consider freelancers to be journalists.18

In the decades since Branzburg, reporters have had the greatest success defending the confidentiality of their sources in civil cases and at the local and state levels. Because there is no federal shield law, reporters are most vulnerable to being subpoenaed by the federal court system. In response to a FOIA request made in 2006 by the Reporters Committee for Freedom of the Press (RCFP), the Justice Department reported that “approximately 65 requests for media subpoenas have been approved by the Attorney General since 2001.” Unpublished author and freelancer Vanessa Leggett spent the second half of 2001 in jail after she refused to turn over research notes regarding a murder case to a federal grand jury.19

Journalists also argue that newsrooms should be protected from unannounced police searches accompanied by a warrant. However, the Supreme Court ruled in the 1978 case of Zurcher v. Stanford Daily that they are not. This decision proved so unpopular that in 1980 Congress passed the Privacy Protection Act, which guards newsrooms against such searches except in special circumstances.20

 

Governmental Control of Media Coverage

 

The Bush administration’s desire to expand secrecy and executive privilege, as well as to limit or control media coverage, has led the federal government to issue narrower guidelines for interpreting FOIA, increase the amount of information that is classified, and in some cases threaten media outlets that publish stories based on leaks of such information. In addition, the government in recent years has taken a more aggressive stance toward journalists who decline to reveal their sources, bringing the issue of source confidentiality to the forefront of the press freedom debate. The Bush administration has also stepped up attempts to influence or “spin” the news through covert payments to columnists and the increased dissemination of officially produced news clips.

Classification of information. In March 2003, a year and a half after 9/11, President Bush signed Executive Order 13292. Despite the tradition of open government established by FOIA and the Sunshine Act, this order considerably expanded government secrecy by giving the executive branch the power to delay the release of classified documents and reclassify previously released information, broadening the exceptions to declassification rules and lowering the standards under which material could be exempted from release.21 The result, according to one source, was that the number of documents classified jumped from 8.7 million in 2001 to 14.2 million in 2005, an increase of about 60 percent in three years.22 According to the New York Times, even decades-old information is being reclassified, and attempts to retrieve information under FOIA have become slower and more burdensome.23 Although in the immediate aftermath of 9/11 journalists generally accepted some national security or war-related restrictions, many have since become concerned that the new rules are also restricting access to normal political and economic information.24

In March 2007 the House of Representatives passed a number of measures that, among other things, require government agencies to respond more promptly to FOIA requests, reverse a 2001 Bush decision that protected presidential records from public scrutiny, and increase protection for whistleblowers. These proposed laws have yet to be discussed in the Senate, and the White House has warned that they may be vetoed.

Despite the new restrictions on FOIA, reporters have been able to use leaks or still-permitted FOIA requests to obtain a number of important documents about the government’s war on terrorism. These include memorandums outlining policies for the severe treatment of prisoners detained in Iraq, Afghanistan, and Guantanamo Bay, Cuba. Furthermore, the CIA in 2007 declassified thousands of files from the cold-war era that detailed agency discussions concerning assassinations, coup plots, and other embarrassing programs.

Crackdown on leaked information. Even as the amount of classified information has grown, the press has, on occasion, obtained highly sensitive information from government officials in the form of both sanctioned and unsanctioned leaks. Particularly in recent years, many journalists have been less willing to heed administration calls to withhold certain stories in the interest of a patriotic and united front against terrorism. Tensions have emerged between the Bush administration and media practitioners who have chosen to resume publishing exposés based on leaked classified documents.

In the past, journalists who received information legally were able to publish it without prosecution or reprisal. Yet as early as 2002, then Attorney General John Ashcroft was promising to tighten existing laws against leaking, and some within the administration had called for leakers to be prosecuted under the Espionage Act when they were believed to have jeopardized national security. The act requires proof of intent to harm the United States or aid a foreign government and has therefore never been used to formally prosecute a journalist. But by 2006, at the behest of some conservative journalists, politicians, and government officials, it was increasingly used as a way to threaten reporters and media outlets that published stories based on leaked secrets.25

Most of these threats have been directed at the New York Times, due to a series of December 2005 stories revealing that the National Security Agency was tracking terrorism suspects by monitoring domestic telephone calls without a warrant. President Bush called the publication of this series a “shameful act,” and Attorney General Alberto Gonzales suggested in a May 2006 ABC News interview that existing law permitted the administration to prosecute.26 The Washington Post’s Dana Priest was also condemned by the administration for revealing the existence of secret CIA prisons in foreign countries; this story, also based on classified information, had been leaked by a CIA employee who was subsequently fired.

Ultimately, no legal action was taken against the reporters or newspapers who published these leaks, and leading newspapers continue to print probing stories on U.S. policies in Iraq and the war on terrorism generally. Even so, such incidents undoubtedly serve as fuel for the debate over the boundaries between investigative, watchdog journalism and the media’s responsibility not to undermine national security.

Confidentiality of sources and shield laws. As discussed previously, American journalists have never had an absolute right to protect the confidentiality of their sources.27 However, in recent years a number of high-profile cases involving major news outlets and key political players have drawn more serious attention to this issue.

The best-known incident occurred in the summer of 2005, when New York Times reporter Judith Miller was jailed for 85 days for refusing to turn over her notes or to testify before a federal grand jury in a case involving the possibly illegal disclosure of the identity of CIA employee Valerie Plame Wilson (usually called Valerie Plame). Miller, who did not directly cover the Plame story, eventually agreed to testify after being encouraged to do so by her source, I. Lewis “Scooter” Libby, the chief of staff to Vice President Dick Cheney. In the same case, Time magazine correspondent Matthew Cooper was threatened with jail for initially refusing to testify about his source, who was also Libby. Cooper similarly testified after Libby granted him a waiver.

In another major case, a federal judge held Washington Post reporter Walter Pincus in contempt for refusing to reveal his sources for articles about Wen Ho Lee, a former nuclear scientist charged with espionage. Lee had accused government officials of leaking his personnel files to the press and sued the government. Four other reporters were also cited for contempt in the case and escaped prosecution only when Lee settled out of court.

The Plame and Lee cases demonstrated that journalists have no clear right to protect their confidential sources. This became particularly evident when the Supreme Court refused to hear appeals from any of the news organizations involved. However, the ambiguity of the issue has also been demonstrated in lesser-known cases unrelated to national security issues. For example, in 2004 Rhode Island television reporter Jim Taricani was fined, charged with contempt of court, and sentenced to four months of house arrest for failing to reveal a source.28 Separately, a judge in September 2006 jailed two San Francisco Chronicle journalists in a criminal case involving alleged steroid use by professional athletes, after the journalists published a story based on leaked grand jury testimony. The charges against the reporters were dropped in March 2007, when the source of the leak came forward.29 In another case, freelancer and video blogger Josh Wolf was jailed in August 2006 after he refused to surrender a videotape of an anarchist demonstration to judicial authorities. Wolf was released in April 2007 after spending 226 days in jail, a U.S. record.30

In a positive step following the Miller case, members of Congress proposed legislation that would shield reporters from the compulsion to reveal confidential sources. The first of these proposals, a 2005 bill, would have granted reporters an almost complete guarantee of source confidentiality. However, in response to objections—some from lawmakers concerned about national security—this proposal was amended. The resulting “Free Flow of Information Act,” a bipartisan measure introduced in the Senate in May 2006, offers no protection to reporters’ nonconfidential notes, e-mails, drafts, and interviews. For confidential sources, it specifies that “public interest in the information provided (as determined by a judge) is critical to the protection the source will receive.”31 In other words, prosecutors or private lawyers must convince a judge that the harm caused by a leak outweighs the value of making the information public.

The proposed law therefore allocates considerable power to federal judges. Although it is not as strong as some journalists and press freedom organizations would like, it offers greater protection and clarity than the status quo. At the same time, some advocates of press freedom have raised questions as to whether the legislation might eventually lead to the licensing of journalists as a means of determining qualifications for coverage under the law. The bill continues to enjoy considerable bipartisan support, but it has so far made little progress.

Domestic impediments to the coverage of sensitive topicsIn addition to heightened controls over access to information and threats against journalists who publish classified information, the media’s physical ability to cover certain sensitive stories has been limited in the past five years, affecting both foreign and American journalists.

Initial coverage of the aftermath of Hurricane Katrina in August 2005 was sharply critical of the Bush administration’s performance and spoke of widespread crime, looting, and mayhem. In response, the Federal Emergency Management Agency (FEMA)—the governmental agency responsible for dealing with the disaster—worked to restrict coverage. Camera crews and photographers were instructed to refrain from capturing images of dead bodies, and some journalists said they were prevented from interviewing Katrina victims who had been relocated to government trailers unless a FEMA official was present.32 Some local law enforcement authorities were also reported to have harassed journalists, particularly those who were reporting on police abuse of criminal suspects. Such harassment included the confiscation of tapes and media equipment, verbal threats, and physical intimidation.33

Foreign journalists seeking to cover the United States also face new restrictions in the post-9/11 environment. Foreign correspondents have always been excluded from the government’s Visa Waiver Program (under which visitors from 27 countries deemed to be “friendly” can enter the United States without a visa for less than 90 days), and are required to have a special visa to cover news stories in the United States. However, immigration officials routinely ignored these rules until March 2003, when without warning they began to apply them zealously. A number of foreign journalists were stopped for visa violations at U.S. borders, refused entry, and forcibly deported to their home countries, which included Australia, Austria, Denmark, France, and the United Kingdom, among others. Many were handcuffed, bodily searched, kept in holdover cells or jails overnight, and prevented from making telephone calls.34

In July 2004, a number of press freedom groups criticized the heightened restrictions, noting that 13 journalists had been detained and deported in the previous 18-month period.35 Partly in response, Democratic Congresswoman Zoe Lofgren introduced a bill that would allow journalists from the 27 “friendly” countries to enter the United States without a visa for up to 90 days.36

Foreign journalists already in the United States have also faced new difficulties and scrutiny in the past few years. In July 2004, the Inter American Press Association asked the State Department to reverse a decision that would require longer-term foreign correspondents to leave the country in order to renew their visas.37 In a separate case in March 2003, the accreditation of two journalists from the Qatar-based satellite television channel Al-Jazeera was withdrawn for a month by the New York Stock Exchange (NYSE), amid comments by NYSE officials suggesting that the suspensions may have been linked to the channel’s controversial coverage of the Iraq war.38

Overseas impediments to the coverage of sensitive topics. American journalists also face new difficulties covering sensitive international stories, particularly those related to the war on terrorism.

For their coverage of the war in Afghanistan and the initial invasion of Iraq, many media outlets chose to have their reporters travel with military units in a practice known as embedding. Victoria Clarke, the assistant secretary of defense for public affairs at the time of the invasion of Afghanistan, said that “on the first night of air strikes, 39 journalists from 26 news organizations were aboard U.S. Navy ships involved in the operation.”39 In April 2003, as U.S. and other coalition forces moved into Baghdad, there were nearly 600 American and foreign correspondents officially embedded with American military units, including deployed ground units.40

Both media and military representatives have observed that embedding during the initial stages of the Iraq war gave journalists unprecedented access to ground combat, which in turn gave the American people a close look at the realities of war. In particular, television coverage of the invasion routinely provided live battlefield video of reporters in protective gear interviewing soldiers in their assigned units; the most striking of these were the occasional interviews interrupted by the onset of combat.

While embedding did provide reporters with new access in some ways, it also limited the story they could tell. Many journalists note that their embedment narrowed their perspective, since they became attached to the military personnel around them and were rarely permitted to leave the unit to cover other news.41 Many did not even see action that could provide a newsworthy story. In fact, the New Yorker’s Jeffrey Goldberg, who declined an embedment, estimated that of the 600 journalists reporting from military units, only 50 to 70 of them saw any interesting combat during their tour.42

Many journalists, determined to cover the war without such impediments, chose not to embed. Though this made them more mobile and independent, many claimed that they were often denied equal access to coalition information and were at times even prevented by the military from covering certain stories, like the damage left by the initial invasion in southern Iraqi cities.43 Nonetheless, most critics agree that coverage of the initial phases of the war was as accurate and free of government control as in any major American conflict abroad. Furthermore, coverage of the war during the period of U.S. occupation has been notable for aggressive reporting on the military setbacks suffered by U.S. forces, political polarization within Iraq, alleged atrocities committed by American troops, scandals involving American contractors, and articles that raise questions about the Bush administration’s war policies.

Due to the dangerous nature of reporting from Iraq, journalists have occasionally become casualties of war. In fact, the American military has even been accused of intentionally targeting journalists whose coverage was not favorable.44 The best-known instances include the 2003 U.S. bombing of Al-Jazeera’s Baghdad bureau, which killed one journalist, and the American military assault on the Palestine Hotel—the primary office for most foreign correspondents in Baghdad—which killed two.45 However, there is no clear evidence that American forces deliberately targeted journalists in these incidents. Foreign journalists have also been detained by forces on both sides of the conflict. In 2003, four foreign correspondents were harassed and imprisoned for eight days by Iraqi officials, and an Al-Jazeera journalist has been held without charge by U.S. forces at Guantanamo Bay since June 2002.

Restrictions on journalists’ access to Guantanamo Bay have added to the tension between the media and the Bush administration. More than 1,000 journalists have visited the base since it began housing detainees from Iraq and Afghanistan. Despite the insistence of a Pentagon spokesman that Guantanamo Bay is “the most transparent detention facility in the history of warfare,”46 Associated Press journalist Paisley Dodds has reported that after the war in Iraq began, it became harder to see and interview prison staff and almost impossible to photograph the base or prisoners.47 Under new media guidelines issued in September 2002, journalists are required to have a media escort with them in areas where detainees are held. These escorts have control over who journalists may speak with, and have reportedly cut short interviews or prevented interviewees from responding to questions on controversial issues. Journalists have been barred from independently interviewing inmates since the prison opened in January 2002. In June 2006, three U.S. reporters from the Miami Herald, the Charlotte Observer, and the Los Angeles Times were expelled before they could complete an investigation into the alleged suicide of three prisoners, and media access to the base was shut down entirely, though only for a time. Despite the restrictions, the press has published numerous accounts of conditions inside the facility, complaints by detainees, and details of military tribunals held at the site.

Covert influence over media coverage. Evidence has emerged in recent years that the Bush administration paid to have news stories supporting its point of view placed in the domestic and foreign media, often without accompanying disclosures of its role. Although government funds had been employed to produce such propagandistic media segments under previous administrations, the range of cases detailed below suggests that the Bush administration has made the most extensive use of the practice.

In early 2005, it was revealed that the Bush administration had used federal funds to pay several political commentators who supported some of its domestic policy initiatives. USA Today reported in January that the Education Department had paid conservative columnist Armstrong Williams $240,000 to promote the No Child Left Behind Act, an education initiative of the Bush administration. In October 2005, auditors at the Government Accountability Office (GAO) found that “engaging in a purely political activity such as this” was “not a proper use of appropriated funds,” and concluded that the administration had intentionally disseminated “covert propaganda.”48 The president asserted that the White House did not know about the payments to Williams.

Soon after the Williams contract was exposed, the Washington Post and the Los Angeles Times reported that the Health and Human Services Department had paid conservative columnists Maggie Gallagher and Michael McManus $21,500 and $4,000, respectively, to help promote the president’s $300 million initiative to encourage marriage.49 Federal auditors who investigated these contracts discovered other cases in which the government had paid for news stories on television and in newspapers. Most of these stories, two of which were disseminated by the Education Department, did not acknowledge that the government had generated them. As the GAO stated,

 

The failure of an agency to identify itself as the source of a prepackaged news story misleads the viewing public by encouraging the audience to believe that the broadcasting news organizations developed the information. The prepackaged news stories are purposefully designed to be indistinguishable from news segments broadcast to the public.50

 

In the war in Iraq, the struggle to control information has become almost as crucial, albeit not as prominent, as the actual military conflict. In February 2002, the New York Times reported that as part of its campaign to win “hearts and minds,” the U.S. Defense Department had created an Office of Strategic Influence (OSI) intended to “provide news items” to international media organizations in both friendly and hostile nations. The new office was reportedly given a budget in excess of $100 million for its first year of operation.51 Barely a week after this story was published, then Defense Secretary Donald Rumsfeld announced that the government would close down the program. However, in 2005 the Los Angeles Times reported that the Pentagon in 2003 had nonetheless continued to place pro-U.S. articles in Iraqi newspapers with the help of a number of private contractors. Among them, the Lincoln Group—a U.S.-based strategic communications firm whose self-described purpose is to help clients “influence their target audience,”52—was alone responsible for planting hundreds of stories in Iraqi newspapers.53 Many papers were paid to publish these articles, and their origins were not disclosed. Referred to by the military as “psychological operations,” such efforts to control information and public opinion have persisted along with the war. In July 2005, the Pentagon awarded new contracts worth $300 million to three firms, including the Lincoln Group, to continue placing stories in the Iraqi press.54

 

State Funded Media

 

Radio and television broadcasting in the United States has historically been private, beginning with the first radio networks—NBC and CBS—in the 1920s, which controlled both the broadcast industry and the technological innovations that fueled it at the time. In this respect, America differs from Europe, where state funding was integral to the formation of broadcast media. In 1927, the British Broadcasting Corporation (BBC) became the first publicly owned broadcasting company in the world, and when the first radio waves were broadcast from the Eiffel Tower in Paris, they were sponsored by the state.

Federal funds were not used to support broadcasting in the United States until the 1962 passage of the Educational Television Facilities Act, and even then they backed only television stations with explicitly educational content.55 But in 1967, the Public Broadcasting Act provided federal support for the first time to the programming and operational costs of local broadcasting facilities. U.S. public broadcasting was never intended to create a single publicly funded, independently administered network like the BBC. Instead, it was envisioned as a loose association of local outlets supported by government funds. Over the years, however, it has evolved into a more cohesive entity that resembles traditional American broadcast networks in many respects.

From the beginning, government financing of local broadcasters raised concerns about the possibility of political influence over media content. To prevent this, Congress created the private, nonprofit Corporation for Public Broadcasting (CPB) to administer the funds and serve as a barrier between the public broadcasting network and both public and private donors.

U.S. public broadcasting has grown since its inception, but not to the extent of many of its European counterparts. The BBC has become the largest public broadcaster in the world, with a government subsidy of nearly $27 per citizen in 2005, while U.S. government funding for the CPB has rarely exceeded $2 per citizen.56 The Republican Party, as the traditional advocate of “small government,” has been the main source of opposition to increased government financing for public media. In the 1980s, the administration of President Ronald Reagan cut the CPB’s budget by $35 million. During the political campaigns of 1994, then Congressman Newt Gingrich and other Republicans proposed “zeroing out” government funding for public broadcasting as a part of their overall platform, claiming that the CPB was biased against conservatives and asserting that the proliferation of cable television stations rendered government funding unnecessary.57

Evidence of political influence at the CPB came to the attention of the American public through the November 2005 resignation of CPB Board Chairman Kenneth Tomlinson. Tomlinson had sought to bring “fairness and balance” to public broadcasting by counteracting what he saw as a liberal bias. However, a CPB internal inquiry found that he had broken federal law by making managerial decisions based on political affiliations. In particular, Tomlinson had advocated the creation of a number of conservative programs and had frequently e-mailed the White House concerning the hiring of former Republican Party co-chairwoman Patricia Harrison as CPB president.

 

Media Diversity

 

Broadcast media. The United States is one of the largest media markets in the world, home to more than 1,500 daily newspapers, 14,000 licensed broadcast radio stations,58 and 1,900 television stations.59 The news media are only a subset of the entire media market, but as recently as 2004 there were nearly 45 million television viewers for the morning and evening news programs (combined) at the three main broadcast stations—ABC, CBS, and NBC; this does not include the many cable and satellite television news outlets.60 Even in the radio industry, audience numbers remain high, particularly for talk shows featuring conservative commentary. The most popular of these, The Rush Limbaugh Show, had more than 13.5 million listeners in 2005.61 Given the size and power of the broadcast industry, it is unsurprising that the diversity of the content consumed as well as the consolidation of outlet ownership have become the topics of contentious debate.

Regulation of the broadcast industry began in 1934 when Congress created the Federal Communications Commission (FCC), an independent government agency responsible for overseeing interstate and international communications, including all forms of television and radio. The Telecommunications Act of 1996 was the first major overhaul of broadcast legislation since the FCC’s creation. Passed with little fanfare by a Republican-controlled Congress during the administration of President Bill Clinton, the law was intended to foster competition across all of the telecommunications industries, bringing telephone companies, cable television operators, and terrestrial broadcasters into one another’s markets.

However, instead of competition, the result of the law was a wave of mergers between existing companies. In January 2000, internet service provider AOL merged with Time Warner and its Cable News Network (CNN). In September 2003, Vivendi Universal Entertainment merged its entertainment business with General Electric (GE), which, in addition to owning the NBC networks, had significant interests in aircraft manufacturing, medical devices, computers, nuclear reactors, health insurance, home equity, and commercial real estate loans. By 2003, five large companies with diverse media, entertainment, and other corporate holdings controlled just under 75 percent of all prime-time television content: GE, AOL Time Warner, Viacom (which owns CBS), Disney (which owns ABC), and News Corporation (which owns Fox).62

The Telecommunications Act also abolished a rule that limited the number of radio or television stations a single company could own. As a direct result, Clear Channel—already the largest single owner of American radio stations in 1996—acquired more stations across the country and within a few years came to own over 1,200 stations in 300 regional markets.63

Some argue that the government should impose regulations to limit the influence that any single corporation can have over different media and individual regional markets. Others believe that the media market should be permitted to regulate itself and that government interference works against media diversity. In 1998, Michael Powell—the son of Colin Powell, a former chairman of the Joint Chiefs of Staff who would later serve as secretary of state—was appointed as a commissioner of the FCC. Powell, a member of the deregulation camp, argued that the primary purpose of the FCC was to prevent the government from interfering unduly in the media industry. He was concerned that excessive regulation might suffocate the technological innovation which he believed could enable smaller companies to break into the market.64 In 2001, Powell was made chairman of the FCC.

The FCC is required by law to conduct a biennial assessment of its rules and determine whether they are still necessary in light of industry changes. As chairman, Powell undertook this assessment and led the FCC to issue a controversial order in June 2003 that modified many existing rules governing media ownership. Most notably, the order would have enabled a company to own a full-service broadcast station, a daily newspaper, and a radio station within the same regional market. The new rules would have also allowed a media company to hold as much as 45 percent (up from 35 percent) of the national television market.65

The FCC order received significantly more attention than the 1996 Telecommunications Act. Supporters of deregulation praised it, arguing that despite the recent trend toward consolidation at the highest levels of media ownership, there were more television channels and information sources available to the American public than ever before, enabling a freer press to flourish. According to James Gattuso of the Heritage Foundation, large companies with access to vast resources support variety in news and entertainment, since they are able to finance stations that might not otherwise stay afloat. Gattuso also argues that it is in the best interest of these companies to diversify their programming to appeal to as wide an audience as possible.66

However, the FCC’s decision also met with considerable opposition from defenders of regulation like the Media Access Project, trade associations like the National Writer’s Union, and even a number of socially conservative organizations including the U.S. Conference of Catholic Bishops, the Parents’ Television Council, and, at one point, the National Rifle Association. These diverse groups found common ground in the belief that the concentration of media outlets under a few owners would limit the range of voices and lead to programming that was out of touch with local communities.67 Many organizations, including the International Federation of Journalists, argue that even without the proposed FCC changes, the current trend of multiplying outlets owned by a shrinking number of corporations is already limiting the diversity of opinions that can be accessed by the American public.68

Critics of deregulation are particularly concerned that large conglomerates could influence news content under their control to suit their interests in other industries. For example, in 2001 the Environmental Protection Agency (EPA) required GE to pay half a billion dollars to clean up a 40-mile stretch of the Hudson River after it was revealed that the company had dumped more than a million pounds of toxins into the river by the end of the 1970s.69 While the issue was before the New York City Council, GE engaged in a statewide campaign against the EPA decision that was estimated to have cost tens of millions of dollars, including television, radio, billboard, and internet advertisements.70 At the same time, Robert Wright—the vice chairman of the GE corporate board and president of NBC—actively advocated against the decision, meeting city council members and defending GE’s position.71 Once the EPA announced its decision, most of the NBC news programs touched only lightly on the issue, and the primary NBC in-depth news magazine program, Dateline, has yet to cover it.72

In a victory for regulation advocates, a series of legislative decisions and court rulings prevented the new FCC ownership rules from taking effect. A few months after the rules were originally proposed, the Senate passed a resolution voicing its disapproval and calling for them to be withdrawn. Although that demand never became law, the fiscal 2004 Consolidated Appropriations Act instructed the FCC to modify one of the rules and drop the cap on media ownership to 39 percent, from the proposed 45 percent.73 In 2004, the U.S. 3rd Circuit Court of Appeals in Philadelphia, ruling in Prometheus Radio Project v. Federal Communications Commission, suspended all of the 2003 FCC changes and sent most of the ownership rules back for reevaluation.74 By 2005, the FCC had consulted with the Justice Department and decided against appealing the decision to the Supreme Court. The commission admitted defeat in 2006 and commenced a new review of ownership rules, this time promising more public hearings and attention to the effect its decisions would have on media diversity.

In part as a response to these developments, Michael Powell resigned from the FCC in January 2005. He was succeeded as chairman by Kevin Martin, a Republican commissioner who promised to take a more active interest in public opinion before any further regulations could be passed.

New media. In the 1990s, when the internet began to emerge as an integral part of the media industry, many at traditional media outlets voiced concerns about whether they could compete. At newspapers in particular, journalists feared that high-quality investigative reporting would suffer along with the traditional print media. A 2006 study by JupiterResearch found that Europeans consistently spend more time online than they do reading newspapers.75 In the same year, a Pew Research Center study found that “four-in-ten Americans reported reading a newspaper ‘yesterday’ in the survey, down from 50 percent a decade ago.”76 In the six-month period between March and September 2006, the circulation for six of the 10 most successful papers in the United States declined, with five of them declining by 1.8 percent or more.

It should be stressed that an obituary for the newspaper industry would be premature. Even in 2005—reportedly a bad year for the print media—the top 13 publicly traded newspaper companies reported average profits of 20 percent, while the profit margin of ExxonMobil, the highest ranked Fortune 500 company, was only 11 percent.77 Many of the largest and most respected national (and local) papers in the United States have adapted well to the advent of the internet, assimilating and capitalizing on the new technology instead of merely competing with it. In fact, online editions of newspapers dominated the 2006 Online News Association awards for quality in journalism.78

However, there can be no doubt that the traditional print media confront a serious challenge from the internet. Even with their online success, average profits are declining among most newspaper companies, and the number of print subscriptions continues to decrease annually. This decline is particularly worrisome because subscription fees and advertising revenues for print editions remain the primary sources of profit for most newspapers—the majority still receive no more than 5 or 6 percent of their overall advertising revenue from their websites.79

To compensate, many newspapers are closing foreign bureaus and replacing them with local stringers or freelancers. By 2007, all of the largest newspapers, including the New York Times and the Wall Street Journal, had even closed their bureaus in Canada.80 This trend costs newspapers precious expertise on international news, threatening the quality of investigative reporting that the American audience has come to expect from the newspaper industry.

One of the most significant challenges faced by the newspaper industry comes from blogs, which provide critical commentary about the media and are also proving to be important sources of information in their own right. Nonetheless, Washington Post editor Len Downie has observed that bloggers are sometimes assets to the newspaper industry, because they reference and draw attention to newspaper articles.81 They are also a boon to media diversity, especially in light of the ownership consolidation affecting traditional media. Blogs offer a platform to anyone interested and dedicated enough to create one. They offer new benefits to readers as well; while the traditional media are consumed more or less passively, blogs allow easy communication and debate between readers and authors.

Political and policy blogs are often highly partisan, and while their proliferation adds to media diversity, it can also contribute to ideological polarization. The Project for Excellence in Journalism found that only 5 percent of blog postings contained “what would be considered journalistic reporting,” which involved original research and provided the reader with more substance than commentary.82 Despite this, or perhaps because of it, the “blogosphere” has already shaped political history in important ways. In 2004, blogs helped presidential candidate Howard Dean rise from obscurity to—for a time—a leading position in the Democratic primary race. Later that year, after the CBS program 60 Minutes reported that President Bush had evaded the draft for the Vietnam War, conservative bloggers identified the story’s sources as fraudulent. Their attacks led CBS to conduct its own investigation, which revealed that a number of the source materials had indeed been fakes. The episode ultimately benefited Bush’s reelection campaign.

Blogs have become an influential part of the American media environment and a feature of American life. Because of this, and because many blogs espouse radical or controversial opinions, a number of attempts have been made to regulate the internet. In 1998, Congress passed the Child Online Protection Act (COPA), which made it a crime to publish anything potentially harmful to minors online (particularly pornography and indecent language) without the technological capacity to prevent children from accessing it. However, COPA was quickly blocked by the lower courts, and in 2004 the Supreme Court ruled that the legislation was unconstitutional.83 According to the Center for Democracy and Technology, lawmakers are now considering legislation that would make internet service providers liable for illegal content. One blogger, Josh Wolf (see above), has already been held in contempt of court and imprisoned for refusing to hand over material published on his website.

 

Conclusion

 

The United States has a strong tradition, grounded in precedent and in the First Amendment, of protecting freedom of the press and freedom of expression. But this tradition has faced a variety of threats in recent years. The nation’s intensified focus on security concerns since 9/11 is a deepening concern, as is the impact of commercialization and consolidation on media diversity, journalistic independence, and quality of coverage. It remains to be seen whether issues like increased government secrecy, threats to source confidentiality, and government efforts to directly influence media coverage are unique to the current administration, or whether they represent long-term trends. The media’s continuing ability to publish stories that discomfit the government—such as revelations about federal surveillance schemes, prisoner abuse in Iraq, or government payments to columnists—is perhaps the best evidence that the American press remains free and robust.

 

 

 

1 David A. Anderson, “Freedom of the Press,” Texas Law Review 80, no. 3 (200

2 Thomas L. Tedford and Dale A. Herbeck, Freedom of Speech in the United States, 4th ed. (State College, PA: Strata Publishing, 2001), 24.

3 Ibid., 29.

4 Jodi Icenoggle, Schenck v. United States and the Freedom of Speech Debate: Debating Supreme Court Decisions (Berkeley Heights, NJ: Enslow Publishers, 2005), 29.

5 Tedford and Herbeck, Freedom of Speech, 59.

6 Ibid., 49–50.

7 Ibid., 64.

8 Ibid., 219.

9 Ibid., 228. In a related ruling, Miami Herald v. Tornillo (1974), the Supreme Court struck down a “right of reply” statute, finding that compulsory publication was as much a prior restraint as prohibiting publication altogether.

10 Ibid., 84–88.

11 Jane Kirtley, “Criminal Defamation: An ‘Instrument of Destruction’” (background paper, University of Minnesota, Minneapolis, MN, November 18, 2003).

12 Committee to Protect Journalists (CPJ), “Publisher and Editor Convicted of Criminal Defamation,” International Freedom of Expression Exchange (IFEX), July 18, 2002, http://www.ifex.org/en/content/view/full/16982.

13 Richard N. Winfield, “An Editorial Controversy Metastasizing: Denmark’s Hate Speech Laws,” Communications Lawyer 24, no. 1 (Spring 2006).

14 Tedford and Herbeck, Freedom of Speech, 247–48.

15 Ibid., 244.

16 Ibid., 244.

17 The Reporter’s Committee for Freedom of the Press, “Reporter’s Privilege,” http://www.rcfp.org/privilege/index.html.

18 Ibid.

19 CPJ, “Texas Journalist Released from Jail,” IFEX, January 4, 2002, http://www.ifex.org/en/content/view/full/15393.

20 Tedford and Herbeck, Freedom of Speech, 246.

21 Lawyers Committee for Human Rights (Human Rights First), Assessing the New Normal: Liberty and Security for the Post–September 11 United States (New York: Lawyers Committee for Human Rights, 2003).http://www.lchr.org/pubs/descriptions/Assessing/AssessingtheNewNormal.pdf.

22 Douglas McCollam, “The End of Ambiguity,” Columbia Journalism Review (July/August 2006): 23.

23 “A Fixation with Secrecy,” New York Times, August 6, 2006.

24 Laura Parker, Kevin Johnson, and Toni Locy, “Post 9/11, Government Stingy With Information,” USA Today, May 16, 2002, http://www.usatoday.com/news/nation/2002/05/16/secrecy-usatcov.htm.

25 Gabriel Schoenfeld, “Has the ‘New York Times’ Violated the Espionage Act?” Commentary (March 2006).

26 McCollam, “The End of Ambiguity,” 21.

27 For a complete list of cases, see the timeline compiled by the First Amendment Center, at http://www.firstamendmentcenter.org/about.aspx?id=16896.

28 Reporters Without Borders (RSF), “Television Reporter Fined for Refusing to Reveal His Sources,” IFEX, April 2, 2004, http://www.ifex.org/en/content/view/full/57917; CPJ, “Journalist Convicted of Criminal Contempt,” IFEX, November 18, 2004, http://www.ifex.org/en/content/view/full/62652.

29 CPJ, “Judge Jails Freelancer Over Videotape,” IFEX, August 2, 2006, http://www.ifex.org/en/content/view/full/76099; CPJ, “CPJ Concerned by Jail Sentences Imposed on Two U.S. Reporters,” IFEX, September 22, 2006,http://www.ifex.org/en/content/view/full/77296.

30 &ldquo