Holding the Media Accountable in the Age of Osama, Kobe, and Arnold

by Steven Brill 

            What I’d like to do is try some relatively new thoughts out on you that I have been playing with for a while, concerning how we make the media “better,” more accountable in the age in which we all live.  But first let me tell you sort of why I care about this a lot.  I started out in journalism, actually started out in journalism right out of law school.  I never expected to practice law and for most of the time I was in law school, I was actually working full time as a writer for New York magazine, and a little bit for Harper’s and places like that.  If you go to -- unlike this place – an easy law school like Yale where they think everybody already knows everything, you can hold down a full time job while you’re doing it.  And nobody thinks the wiser.

I ended up starting this magazine called,  The American Lawyer.  It was based on the notion that law and law firms and legal institutions were these big powerful institutions that nobody knew much about, that were not terribly accountable to the rest of the world because they had their own ethics code and their own system of self-discipline, and self-discipline is often as it was then, a contradiction in terms.  That really was the idea:  big powerful institution.  What journalism should do when it sees big powerful institutions is get inside them, write about what they’re doing that’s good, what they’re doing that’s not so good, and basically hold some sunlight to them.

And in the course of doing that over the years something just kept nagging at me and that was that there was this other big powerful institution out there that was arguably bigger, arguably more powerful, and by definition, in the Constitution, in the very first amendment to the Constitution, was even more unaccountable.  That was the press, and during the course of doing The American Lawyer, early on, I think, in 1982 or ‘83, I had written article for the magazine, myself, about a libel suit that had been brought against Time magazine, and it was an awful situation.  Time had performed terribly.  It had really done an awful job. Basically, the reporter had made up a story. Their arrogance was just breathtaking, and it turned out that the more I went through all of the legal papers in this article, the more I found, for example, that Time and Newsweek had a policy at the time that they never, ever made a correction.  Their definition of a correction was that if they got something really, really wrong, and you threatened to sue them, if they ran a letter in your voice saying what you’re saying they got wrong, if they printed the letter -- and no reply from them saying, “Yeah, he’s right. We got it wrong” -- just if they ran the letter, that was their idea of a correction.  That’s all they did.

So I started thinking about it and I remember after doing that article, and that article got a lot of publicity, and in fact, it won the National Magazine Award at the time, and soon after that, our company had started to grow, and we used to hold a retreat for all of our editors and reporters which by then was a couple of hundred people, and we’d all meet at some conference center outside New York, and I remember one Saturday morning, I got this idea that we ought to hold ourselves accountable more than we do.  So I announced to the group, that what we were going to do were two things.  First of all, we were going to have a really candid corrections policy.  Our corrections policy was going to be that if we made a mistake, we’d correct it in our own voice and the correction would always be as prominent as the mistake.  So that if one of our legal newspapers, by then we had a bunch of these papers, ran a mistake on the front page, that’s where the correction would go.  Then I said this really terrible thing:  “We’re going to put a byline on the correction.  We’re going to say who made the mistake.”  Gasps in the audience.   There were gasps in the audience.  “You can’t do that!  It’ll embarrass us!”  I said, “You know, we’re kind of in the business of embarrassing everybody else.  That’s what we do all day.  If we make a mistake, let’s be embarrassed by it.”  Then, the second idea was what I was going to do was, at random, have my secretary pick 10 articles maybe 15 from our papers and our magazine around the country, and write to 15 people who had been written about or mentioned in those articles and we would enclose a copy of the article, and it would be a form letter and it would say, “Dear So-and-so, (first sentence) This is a form letter.  This is not meant to imply anything about the writer of this article in any way, shape or form.  We have great confidence in our journalists, but as a simple matter of quality control, just to check on things, we’d like you answer the following questionnaire about the article that was recently written in which you were mentioned or profiled or whatever.  Here’s a copy of the article. First question:  Were you treated courteously by our reporter or fact-checker?  Second question:  Were you quoted accurately?  Third question:  On a one to ten scale, or something like that, with one being awful and ten being wonderful, how would you rate the accuracy of the article?  A space under the third question:  Do you have any other comments you would like to add?  And when I explained to this group of some 200 journalists that we were going to do this, there were more, gasps in the audience.  “You can’t do this!  It’s outrageous.  It’s terrible!  You’ll ruin morale.  You’ll be telling the world that you don’t have confidence in us.  People will be making all sorts of crazy complaints.  There’ll be dissension in the newsroom.  It’s just an awful thing to do.”  But, it really was simple quality control that everybody does.  Now at the time, the example I used to justify it was when I had been going to college and my first year of law school and I had worked for John Lindsay when he was mayor of New York, and one of Lindsay’s big battles at the time was to establish a civilian complaint review board to take complaints about the police department.  Now we all know that most journalists are liberals, and we all know that they’ll knee-jerkingly approve of a system to complain about the police, right?  So that’s the example I used, and I said that you sound like the police union saying that there shouldn’t be civilian system to look at complaints about the police … that the police ought to handle complaints about the police.  The police union said at the time that it’ll ruin morale, there will be all of these wacky complaints against us and it‘ll be terrible and it will show that the mayor doesn’t have confidence in his own police department.  None of you thought that about the civilian review of police.  What’s wrong with my sending this letters?  Let’s have a show of hands.  They all were against it.  Everybody was against it, pretty much.  Luckily this was not a democracy.  So, I did it anyway.  But it was really revealing and that experience stuck with me and by the way, the upshot of those letters which went out at random, was 99.9% when I’d get the letters back, and they’d say, “My God, I can’t believe anybody is doing this.  This is great!  And, yes, the reporter was accurate; yes, I was treated courteously; it was a good story.  Thank you so much for asking.”  In one case, we got a form back that said, “I love the story written about me and I really appreciate all of the really good things your reporter had me saying.”  I faxed that comment down to [the editor] and I said, “You know, what’s going on here?  What was that?”  And it turned out that we had a reporter covering real estate, who’d been making up his interviews.  It wasn’t Jayson Blair, but it was a Jayson-Blair situation.  Don’t tell me the New York Times couldn’t have caught Jayson Blair if they did these simple, routine quality controls that any consumer products company in this country does or should do.  When General Electric sells you a refrigerator, you get a questionnaire once in a while that says, “What do you think about the service people who are coming to take care of your refrigerator,” don’t you?  Why shouldn’t a newspaper company do that?  What’s wrong with that?  Sure, there’ll be complaints that are wacky and people will be bitter about stuff that is written about them, but you know, you’re supposed to be smart.  You can figure that out.  You need to get that input.

So, I kept thinking about that kind of stuff and when I ended up selling all of my interests in all of the legal publications and Court TV back to my partners within Time Warner, I decided what I was going to do was start a magazine that was going to look at some of these issues.  Now, the magazine didn’t succeed.  It went out of business five years later, not because of a lack of interest on the part of the readership—our circulation was actually pretty good.  We just weren’t able to build the right kind of advertising base to sustain it as a business.  It doesn’t mean that civilization is worse off for it.  It doesn’t mean that the world is a terrible place or that capitalism is terrible.  It just means that it was a business idea that we tried very hard to do and it didn’t work. But, the concept that the press needs to be held accountable, I think, is very important.  But there’s a terrible or terribly important footnote to that and that this is one area of commerce and life in our country where we can’t really ask the government to hold this powerful institution accountable. I happen to think there are lots of things that the government can do with and to the legal profession.  But at the core, we don’t the government messing around in what the press does.  I’m the first guy to say that.  But that doesn’t mean the rest of us can’t do something about it.

Now the press, as I said, as an institution hated the idea of Brill’s Content, but we had lots of reporters, lots and lots of reporters, honorable people, people who care about their profession, the way the people have gathered for this Ethics Institute have cared for their profession, and we got a lot of support from those people.  We got, for example, I can remember once we did a survey of television news organizations’ policies concerning the privacy of kids.  We used to have a policy in Court TV that we would never show the face of a minor.  No matter what … we just didn’t want to embarrass a kid.  So, for example, when everybody else was showing O. J. Simpson’s little kids coming into the courthouse, we just didn’t do it.  And I happen to believe that news organizations, journalists ought to make decisions like that based on their own sense of what’s right and wrong — not their sense of what the law allows them to do, because the law allows journalists to do just about anything in this country.  And I remember once at one of the meetings we had about that policy bit and O. J.’s kids, where one of our younger assistant producers who had just come out of the Columbia Journalism School, piped up and said but Judge Ito says we can do it.  And I said, “But Judge Ito’s not the editor of this organization.  And he shouldn’t be.”  Journalists have to make their own decisions.

So we were doing this kind of survey of what news organizations did about privacy.  It came right after the death of John F. Kennedy Jr. and what I thought were the horrible, terrible television coverage of Caroline Kennedy’s little kids…just photographers hounding them wherever they went in the week or two or three right after the event.  We had our reporters calling Sam Donaldson and Tom Brokaw and all of those people and saying, “What do you think about the fact that your organization’s cameras are hounding these little kids?” And they hung up on of our reporters.  And we’d write down everyone who hung up on our reporters.  But a lot of them supported us but I remember getting one call from one seven-figure anchor woman at one of the networks whispering in her special cloying way, that she really supported what we were doing and what her organization and the other network organizations were doing in this regard was outrageous, and I said, “Well, why don’t you speak up,” and she said, “Well, I couldn’t possibly do that.”  Now if you knew who this person was, you’d know that the notion that anyone was going to retaliate against her was just absurd.  But that to me was sort of a depressing example of why you can’t depend on people to regulate themselves.

            Another thing I learned in doing this magazine was that there is actually one way, at least structurally, that you can regulate yourself if you’re a news organization.  And this will have some relationship to what I’m going to say a little bit later on.  So, let me describe it to you.  We set up an ombudsman system at Brill’s Content.  We hired a man by the name of Bill Kovach who had been a top editor at the New York Times, and was a curator of the Nieman fellowship at Harvard, which is a university north of here, up in Massachusetts.  He could write anything he wanted about the complaint as long as he wanted, whatever length he wanted, in our magazine in a prominent page that we stipulated in the contract — it would be like page 9, or something.  And we would post notices on our website and in the magazine about where to complain to Bill Kovach, and how to complain to him, and he got to handle all of those complaints himself.  We could not in any way interfere with him.  We also did our old system of sending letters looking for our own complaints, but he worked totally parallel with us.  That system really worked.  It worked with our reporters.  They were afraid of Bill Kovach.  They didn’t want to do something that he was going to nail them for.  That’s good if you believe in these ideas.  That’s terrific.  Most of the time, it enhanced our credibility that we were a publication that was telling its readers that we take this stuff seriously.  We take the idea of “getting it right” seriously, and we know that once in a while we’re not the best arbiters of whether we’ve gotten it right.  You deserve to hear from someone else who’s objective and is an outside independent to see whether we’ve gotten it right.

 The magazine’s not there any more, but there is lots of press out there covering the press.  Howard Kurtz in The Washington Post, most big newspapers and lots of small newspapers have press columns.  But I don’t think that’s enough.  I spent some time after the Jayson Blair incident urging the Times, people at the Times, who were making these decisions to do some kind of ombudsman setup …  The really emblematic thing is that it took the Times this long and this much huffing and puffing after this Jayson Blair scandal to do this.  And they’re acting like it’s some kind of giant innovation when in fact most newspapers around the country have some kind of ombudsman.

Now, in looking at the kinds of issues that I think where the press really falls short and needs some kind of outside accountability, they really run the gamut. My experience in doing this book [After: GET FULL TITLE HERE] drove that home to me really clearly.  First of all, right after the September 11 attacks, I think what we found was that the press generally did a really good job.  And the reason that I would argue that the press did a really good job was suddenly, the economics in the marketplace dictated that they do a good job because everybody cared about this story.  Everybody cared about this.  It was a matter to people certainly where I live in New York, but around the country, knowing as much as they could know about the terrorists and the attacks and anthrax and everything else was a matter of life and death.   This was the kind of news you paid attention to and the news organizations, the major ones that we care about, flooded the zone, really put good people on it, spent a lot of time on it.  But I would tell you that that was almost a marketplace decision.  It wasn’t difficult to make the decision to put a lot of resources against all the issues related to September 11 because they knew they’d get the audience for that.  The real question is what do you do when you need to lead people to a story, when you need to convince people that a story is important?  Not when it’s crystal-clear, as it was on September 13^th, that it’s really kind of important to read an article about air safety or terrorism, or anything like that.  The real issue for the press is: Are they willing, how many are willing to lead people to a story that they decide is important because that’s what editors are supposed to do.  Best example, oddly enough, relates to 9/11.  In the winter—January of 2001 and then, I think, in June of 2001, a presidential commission, headed, and most of you know this, by former senators Warren Rudman and Gary Hart, issued two successive reports saying, in a nutshell—each report—that the United States was ill-prepared to deal with terrorist attacks and declaring, not predicting, declaring that the United States would suffer a terrorist attack within the next couple of years that would kill thousands of Americans on American soil.  And then they went on to detail all the vulnerabilities related to that attack.  That story did not get any play on any television network when they made it; when they held those two press conferences about two reporters showed up. I think there was a small story on one of the press conferences in the Washington Post, maybe a small story of one of the press conferences buried in the New York Times.  That’s the kind of story the press needs to cover, obviously, right?  It doesn’t take a genius to figure out they missed that one.  But I think that sort of illustrates the point that what you really need is leadership.  It’s easy to do the big story right after September 11^th, a lot harder to do before.

Then, what I found in the book was that as September 11th sort of faded away in time, that the press just kept missing the story and just kept walking away from the harder stories where you need to captivate people.  I’ll give you one example. During the time I was doing the book, I was writing a column for Newsweek about once a month about all of the issues related to the September 11th attacks and the aftermath.  And I became convinced, because I spent a lot of time with these people, that the people setting up this new organization called the Transportation Security Administration were actually doing a terrific job.  And the more convinced I became that they were doing a terrific job and they were going to make this impossible deadline that Congress gave them to have federal screeners, you know, the new people you now see at the airports, to have them all there by, I think it was November 2002, and to have all bags go through these machines so that they could check for bombs, to have all that done by December 2002.  The more convinced I became that they would make these deadlines, the more that I kept reading in the Times and the Post and USA Today and elsewhere was how terrible these people were:  That they were missing this deadline; that they were doing this wrong; that they were doing that wrong.  People were getting this stuff on a plane and that stuff on a plane.  I knew this was wrong, and I did a column in Newsweek about it weeks before they were supposed to make these deadlines, which nobody said they were going to make, saying that they were going to make the deadlines and they were actually a good new government organization and that the amazing story of all time was that here was a Republican administration proving that big government works.  Pretty sexy story, I thought.  It’s the only time and I had a terrific working relationship with the people at Newsweek who were my editors, one of whom had worked at the papers that we had owned in Washington, a terrific relationship with everyone at Newsweek, and it’s the only time I got a call from my friend Mark Whittaker, who’s the editor, saying:  “Are you sure you want to run that story?  You know you could be really embarrassed by it.”

            And I said:  “No, they’re going to make these deadlines.  This is going to happen.  This is going to work.” 

            “Well, are you sure?”

            Well, I was sure.  He just wasn’t sure.  And the point was that what the press was doing there was going to a list of likely suspects who were consultants who were working for the airlines or the lobbyists who work for the airports, the people who run the airports and they had an incentive to tear down this agency, TSA, and they were getting all of these wonderful quotes about how terrible this was and frankly, I was doing a book, I was spending a lot more time.  I was going to airports and I was going to their trains.  I knew that I was right about this and the press missed this story — totally  missed it because they just weren’t spending enough time on it.  It wasn’t that they were you know, had any ill-will toward anyone, although it’s always nice to say that the government’s doing a bad job.  They just weren’t spending time on the story.  They weren’t thinking about it.

But I’ll give you another example related to 9/11 stuff where the press is going for an easy story as opposed to a harder story.  I’m sure many of you heard about this, have seen television reports, read news reports that there’s this big threat that terrorists will mount these shoulder-fired missiles and shoot an airplane out of the air, right?  Most of you have heard this stuff?  And the government has recently announced that it’s going to spend $100 million to research the technology that you can put on every airliner so that it will have missile-evading technology, so that when the terrorists shoot their shoulder-fired missile it won’t knock the airplane out of the sky.  The estimates are that the technology would cost approximately two maybe three million dollars a plane.  I won’t bore you with the math, but that adds up to about $10 billion, if you’re going to do this.  Then it will cost another $5 billion to train everyone to use this stuff.  This stuff, by the way, only works about half the time on military planes, so far.  But we’re going to now have and this will take two maybe three years, but we’ll have this protection.  Now, you’ve got to ask yourself, why are we worrying about this?  What’s so special about an airplane?  If you have that missile, you can hit the Empire State Building with it.  You can hit a ballpark with it.  You can hit anything with it.  What’s so special about an airplane?  What’s so special about an airplane is that initially a bunch of congressmen had a press conference and they showed video from some movie where a missile was knocking an airplane out of the sky.  That was followed by an attempt in Kenya to shoot one of these planes, to shoot an Israeli plane out of the sky by somebody with a shoulder-fired missile.  Didn’t work, by the way, because the missiles don’t work that well.  And you really have to know how to use them.  But we’re about to spend and if you ask people in Congress who worry about his, Why are they spending this $100 million to find out how to spend $15 billion on something as opposed to spending the hundred million dollars it would take to secure Amtrak where someone with a backpack sets off a bomb under a tunnel.  Thousands and thousands of people are going to die.  Why are we doing this? And they’ll say, well, it’s the press conference that Congress is having.  Well, the press needs to do a better job than that.  Speaking more broadly, the press needs to have a really disciplined and mature way of looking at all these post-9/11 terrorism issues, which is sort of a pet peeve and a pet interest of mine, having done this book. The duct tape stuff where Homeland Security Secretary Tom Ridge got criticized for saying you need duct tape in one of these ready kits.  That story is just garbage.  Ridge never really said that.  He handed out the website in a list that listed that as maybe the 22^nd item, if you have to shelter in place, having duct tape and plastic. Someone, one reporter seized on that and said that Ridge calls for duct tape and then everybody went after duct tape.  Not only is it unfair, but that’s not really Ridge’s problem if it’s unfair, you know, he’s a big boy, he can take it.  But it’s really terrible for all of us in this country who care about safety. The issue of what to do and what not to do in a terrorist attack is a life and death issue.  This is important stuff.  It’s not like when I was growing up as a kid and you know, we had these, you know, duck-and-cover drills in case Nikita Khruschev got angry and dropped a nuclear bomb on New York.  If I was somehow under my desk, I was going to be OK.  This is not that.  There are really things you can do, things you should know about different kinds of terrorist attacks, and if every time someone from the government or anybody else goes out and starts to talk about it, the press is going to make fun of them about duct tape.  That’s a really bad thing.

In most contexts in this country having commercial enterprises is a pretty good thing.  We like the marketplace.  We like the marketplace of ideas.  We like the commercial marketplace because usually it gets the best products to people.  But when you look at what happens with the media, it doesn’t quite work that way.  And I think it’s gotten worse exponentially in the last couple of decades for one very simple reason:  For my money, the biggest change that came about in journalism—television, print, anything else—came when so many of the companies responsible for so much of what we read or see became public companies, selling their stock publicly on Wall Street.

Now, I know that sounds like I’m going to veer into a business school lecture here, but you need to think of it this way:  If I own my own business, then I can make my own decisions about what I want to do. If I decide, let’s say I own a television station and I think covering the issue of preparing for a terrorists attack is really important, and even if I get a smaller audience for that than covering Kobe Bryant I’m going to do it anyway, because that’s what I want to do because I think it’s important.  I can do that because I own my own business.  But what if it’s a public company?  Many of you in this room or your families, for example, are in pension funds.  Pension funds pay managers to invest their money with people who pick stocks.  What if you got a report from the person in charge of your portfolio of stock saying that well, the Dow was up 10% this quarter.  Our portfolio was only up 1%, but don’t worry, we invested in really a lot of ethical companies that really care about America.  You’d say, well, hey, wait a minute, if I want to give to charity I’ll give to charity.  I gave you my money to put it in stocks to make the stocks go up so I can retire with some security.  What are you talking to me about ethics?  I want to know what the bottom line is.  And the fact is that if you look at any annual report from any company in the world, whether it’s the New York Times Company or  General Electric or XYZ Corporation, the first thing that the chairman of the company says to his shareholders in the annual report is: Our goal in our company is to maximize shareholder value.  Right?  Not to maximize shareholder value as long as we teach as many people as we can about how to cover their faces in the event of a biological attack.  Or not to maximize shareholder value as long as our newspaper deals with zoning issues at the local zoning board because we think that’s really important. That’s not they say, and you know what,  that’s not what they should say.  They’re promising people who are buying their stock that they’re going to maximize profits.  So how do you deal with that?  How do you deal with the fact that profit maximization typically means covering the Kobe Bryant case more than covering the case of Jose Padilla.

 Who knows who Jose Padilla is?  Anybody?  Not too many people?  You all know who Kobe Bryant is, right?  Now Jose Padilla, to me, has got what’s probably the most important legal case in the United States in at least the last 10 years.  And I actually know something about important legal cases.  This is the quintessential story for any journalists.  Who is he?  He’s you.  You were walking through O’Hare Airport yesterday and someone in the Justice Department said you’re an enemy combatant.  You are now taken to a brig in South Carolina.  You get no lawyer.  We don’t even know that you’ve been taken except that, you know, maybe you hope your family misses you and they wonder where you are.  If they find out where you are they’re not going to get the chance to talk to you.  Their lawyer, your lawyer, is not going to get to see you.  And you’re going to get out of that bring as soon as the war is over.  Whatever that war happens to be, whoever it is who supposedly is in charge of declaring it over.  That is who Jose Padilla is.  He is a guy who was walking through O’Hare Airport. They say they have information that he discussed the possibility of coming back to America — he is an American citizen. One of the reasons this story has great legs is that he is an American citizen with kind of not-as-American name as yours.  But he’s an American citizen and they say that he was discussing plans — it started out with the Attorney General saying he was “planning,” but it’s been reduced to “discussing” plans -- to set off a dirty bomb (that’s a radiation bomb) somewhere in the United States, we know not where.  Who said it?  We know not who.  When did they say it?  We know not when.  How specific were they?  We have no idea.  When are we going to hear about any of this?  We don’t know, because he doesn’t get to have a hearing.  That is, my friends, Argentina in the ‘70s.  That is:  We have declared this guy missing.

And that’s a big story.  We’re not covering that story.  By the same token, the way we’re covering the USA Patriot Act is ludicrous.  I promise you that with one or two exceptions, I am the only journalist who has ever read the Patriot Act.  And there are a lot of people writing about the Patriot Act.  And most of the people writing about the Patriot Act don’t have the slightest idea what the Patriot Act says.  The long and short of it is, it is not nearly as bad as some of you think it is and those of you who are on the other side of the issue, it’s not nearly as effective and as different and as new as you think it is.  But the Patriot Act, there are endless stories about it written by people who clearly have [not read it.] Now it’s a long act, I’ll give you that, but so what; you should read it before you write about it.  So how do we deal with this?  How do we change all of this?

 What I want to do is to propose to you, and then I’ll sit down.  This will take a couple of minutes, a couple of ideas about how I think the government can actually get involved without really getting involved in the content of what the press does.  Now, I’ve been thinking about this stuff for a while but I [had concluded] there was no reason really to talk about this much because no one in Congress and in the American public wouldl never do anything about it.  Then as some of you may know, about a month or two ago there was a mini-revolution of sorts  when the FCC voted on new regulations that would allow media companies to consolidate still more -- by “consolidate” I mean buy up still more local radio and television stations.  They now had a limit and the FCC said no they should be able to buy up more.  I mean it was as if people in America had written to Congress and said, “You know what the big problem with media in this country is?  It’s not big enough!  We need to change the regulations so they can grow some more.”  And the FCC responded by saying, “OK you can grow some more.”  And right after they did it, there was this uproar in the Senate and the House supposedly from people writing their senators and congressmen in large part from all kinds of interest groups ranging from the NRA on the Right and to the ACLU on the Left (although they wouldn’t like to be called “on the Left.”)  But all kinds of interest groups, but also people saying you know what?  “This stinks!  Why are you letting them do this?”

  So, having seen that revolution I now think that some of these ideas, if they’re talked about a little bit may start to catch hold.  The first one has to do with antitrust law.  Now, don’t leave the room, I’m not going to give you a legal lecture.  I’m not qualified to, and I want to keep you here for at least another five minutes.  What the antitrust law is supposed to do in a nutshell is ensure competition in various industries.  Now, again it’s absurd that the FCC actually decided that we needed to allow media companies to get bigger but competition in media, I’ll argue you is something different. Traditionally, antitrust law would say that if there are three widget companies that compete with each other rigorously, that’s enough to keep price of widgets down because if there was only one widget company, it could raise its prices as high as they want.  But if there’s two or three or five of them  they’ll all be disciplined by price unless they make deals with each other in which case they go to jail for violating the antitrust laws.  Media are different, if you think about it.  It’s not enough to have the price be the focus.  The whole notion of the marketplace of ideas really isn’t the two or three ideas in a local market…or the two or three owners of all the cable television channels in the national market.  That’s not enough.  The whole notion of the marketplace of ideas , the whole notion of the First Amendment is that you have zillions of ideas out there,  that ideas compete with each other and not just two or three big guys competing, but lots of people can compete.  So, I think we need to think about antitrust law, and I think Congress needs to think about antitrust law in a way that establishes that doctrine more clearly — that the notion of antitrust when it comes to ideas and creativity and content and news is that the marketplace of ideas is different from the widget marketplace.

But let me be a little more specific about something.  I said the government doesn’t interfere in media.  Right?  Well, actually it does.  The government provides a whole bunch of subsidies to media all the time.  And when you provide a subsidy, then you can start to put some conditions on the subsidy.  For example, every newspaper and magazine gets a tremendous subsidy from the postal service.  You and I as taxpayers pay higher taxes and higher postal fees because if I send my magazine out, I pay a lot less for the poundage of that magazine than you would pay if you sent a package weighing what that magazine weighs.  If I even send a letter, a piece of junk mail, soliciting you to buy my magazine, the kind of junk mail that you hate, I pay a lot less than I would pay if I sent you another kind of letter because I’m in media, because I have a postal permit that says this is a publication and I’m allowed to do that.  Newspapers pay much lower postal rates to mail their publications.  Newspapers get all kinds of preferential treatment, placement on sidewalks, in news racks.  The other subsidy obviously is FCC licenses.  Every broadcaster has a license.   They have a license to use the air waves—that you and I own, and they get to use that portion of the spectrum that is channel 4 or channel 7 or channel 11.  They get that.  Same thing with radio.  So it seems to me when you start to think about what the government is giving, maybe the government could put some requirements.  Suppose the government said you don’t get that discount postal rate if you’re a magazine unless 80% of your parent company’s revenues come from the magazine business.  In other words, you can’t be some giant conglomerate where the corporate culture isn’t in the magazine, isn’t in publishing and media.  You’ve got to be a real magazine company.  That would force the size down.  Suppose the government said you don’t that postal rate unless you have some kind of process by which you take consumer complaints.  You could broadly define the standards for doing that, but if you want to get our postal rate, you’ve got to show in some way that you’re responsive.  We don’t care what the content is.  We don’t care what you’re writing.  We just want to know that you have some procedure for fairness or that you have some kind of ombudsman.  You could do the same thing, there are all kinds tax breaks that the press gets.  But just looking at this notion of benefits and saying let’s attach some obligations and responsibility—not content obligations.  You don’t have to, you know, only report on nuclear proliferation and not Kobe Bryant.  But whatever you do, you have to do with some sense of accountability, responsibility and you’re also less likely to report on Kobe Bryant in favor of Bush’s new nuclear proliferation if we can squeeze your size down.

 We can say through antitrust law and through laws that say that if you’re going to be in the newspaper business and get newspaper rates you can’t be in lots of other non-newspaper businesses.  We can make these companies smaller again, where you might have private ownership that might care more about some of this stuff.  That’s some of the way I can think about how to nudge the marketplace.  We’re stuck with the marketplace.  The marketplace is generally a good thing.  And I believe in it.  I’ve done well in it.  I can’t complain.

Another example of a regulation which really has to do with television.  You need to separate the content from distribution. What do I mean by that?  Suppose Barnes and Noble was not only a big bookstore chain, which it is, but the only bookstore chain in all of Virginia.  The only bookstores in Virginia were Barnes and Noble.  And suppose Barnes and Noble started a publishing company and suppose Barnes and Noble said to authors:  “You really ought to go with our publishing company because, if you go with any other publisher, we’re not going to carry your book and, did we mention that we’re the only bookstore in Virginia?  And by the way, we’re also, now, the only bookstore in the United States.  We’re the bookstore and if you don’t write your book with us, it’s never going to be in a bookstore.”  Obviously the government would respond to that.  That would be a classic antitrust problem.  You have that today on almost every cable system in the United States where the cable company, whether it’s Comcast or Time Warner or the couple of others that are left own interests in the cable channels that are on your dial and they give preferential carriage, the channel is lower, they launch a channel if they own an interest in it.

The most important thing for the marketplace of ideas is always to separate the distribution system — in this case the cable systems or in the case of Barnes and Noble, the bookstores — from the people who create the content.  It’s what they did in the movie industry in 1948 when they said that the big studios couldn’t own movie theatres for that exact reason.  We have to do that if we’re going to make media more accountable and more responsible.

 Now, I have one other little idea that the government could do that is content-neutral, as the constitutional lawyers like to say.  That is, if you’re going to give someone an FCC license or a free postal rate—but let’s focus on television for a second.  Suppose at the end of every show, you had to list the person who was ultimately responsible for that program being on the air.  For example, we’ve all heard of Jack Welch who was, until recently the CEO of General Electric, right?  Suppose as a condition of NBC’s license that at the end of Fear Factor it said:  This show brought to you under the auspices of Jack Welch.  Think of the dinner parties Jack Welch wouldn’t want to go to in New York because they’d say, “You’re the guy behind that sleazy Fear Factor show.”  Suppose on the local television stations owned by the Washington Post company – that’s a great company, run by great people -- suppose that requirement existed and at the end of Jerry Springer it said: “Jerry Springer brought to you courtesy of Donald Graham.”  Maybe Donald Graham wouldn’t carry Jerry Springer.  The power of embarrassment is big.  It’s part of the marketplace.  The marketplace—some part of the marketplace is money; some of it is embarrassment.  There are things that a lot of people wouldn’t do to make money if they knew that people would know that they’re doing it to make the money.  One of the things we really ought to think about is that power of embarrassment.

 Now, that’s where you come in. Because I think it’s the responsibility of consumers of media to support good stuff and try to stay away from the bad stuff.  Now part of this is akin to rubber-necking at a car accident.  Right?  We’re going up the highway.  There’s traffic.  There’s a terrible car accident.  We know we shouldn’t look at the car accident, right?  First thing we know is that there is a moral and ethical thing.  We shouldn’t look at the car accident and the poor person sprawled out on the street there.  We all know that.  Second, we know that we’re angry because all of the people in front of us who are stopping to look at the car accident are causing the traffic which is making us late.  Right?  So we know they’re doing a bad thing and we know that when we get there we shouldn’t do it.  That is like watching terrible television or reading terrible magazines instead of good magazines.  We know they shouldn’t do it but they’re doing it causing a traffic jam.  What do we do when we get there?  We all look.  We all do look and we have to sort of teach ourselves in some respects not to look.  Because in the marketplace, the marketplace actually responds to customers.  There is a reason.  Rupert Murdoch is right when he says that everything he does is done because people want to buy it.  He’s not wrong about that.  And if you’re going to make the marketplace work, you have to sort of turn the dials a little bit to make him rethink that equation.  So, I think, for example, that there’s nothing wrong with people in this room and everybody else writing to an advertiser and saying:  “How could you advertise on that awful show?”  I think that’s terrific when people do that.  I think it’s great when the NRA writes to someone who advertises on a show that had an honest conversation about gun control which is something the NRA can’t stand.  I think it’s great that they write to those advertisers.  The problem is the people on the other side don’t write back.  There’s nothing wrong.  That’s not censorship.  Censorship in the private market is called “editing.”  Censorship is only censorship when the government does it.  The government is not doing it.

So, all of us as citizens, as active citizens and consumers, need to get in on this.  I’m going to try to help because it’s the only way we’re going to change this.  For those of you in the audience who want to go into journalism, I hope you’ll do it.  I can’t underscore enough what both of our speakers have said which is that this is really important stuff.  I’ll tell you that in a democracy, journalism is it.  Democracy only works if people have some idea of what the issues are so they can figure out in some informed way how to vote.  Even the markets only work if people have some idea about consumer products and how to buy them based on what they read and hear and see.  The culture and everything depends on honest, vibrant, gutsy, complete journalism.  That means it needs people like you who care and care enough either to work in it or at least, at the very least, be good consumers of it.  Thank you very much.