Justice Oliver WendellHolmes famously wrote that the best test of truth "is the power of thethought to get itself accepted in the competition of the market…" Buttoday many are turning away from this theory, calling for greatergovernment intervention in media ownership and the perceived lack offairness in the press.
SenatorByron Dorgan (D-ND), a vocal critic of the free market for ideas,recently stated, "We really do literally have five or six majorcorporations in this country that determine for the most part whatAmericans see, hear and read every day."
Unfortunately for the Senator, we really don’t. According to Ben Compaine, author of Who Owns the Media?,from 1985 to 1995 the top ten media companies went from raking in 38percent of media revenue to 41 percent—not exactly the kind of massconsolidation the pundits would have you fear.
But revenues—the traditional means for measuring media market diversity—are notthe best way to gauge the diversity of opinions in the Americanmarketplace of ideas. With the advent of the Internet and the newnational pastime, blogging, media revenue models are being completelyredrawn.
Arianna Huffington’s aptly named Huffington Post claims to draw in 4.7 million unique users a month (Nielson estimates show about 1.5 million). Fortunehas quoted an unnamed source estimating that Huffington can expect herteam of less than 50 staffers to haul in $7.5 million this year.
Compare that to the other post—The Washington Post. The Washington Post Company reported that in 2007 the Posttook in a comparatively whopping $496.2 million in advertising revenue.Yet its average daily circulation totaled 649,700, half of Nielson’sconservative estimate of Huffington’s reach.
Lean, web-basedcompanies—which have much lower operating costs and use far fewerdead trees to disseminate their ideas—are left underrepresented incurrent media market measurement for no other reason than theirrelative efficiency. If we substituted eyeballs reached for dollarsspent the already robust picture of the media market would show evenless evidence for concern.
STILL, MANY BELIEVE there is needfor regulation because Americans still receive the bulk of their newsover the airwaves. Senate Majority Whip Dick Durbin has said thatbroadcasters should be required to give both sides of political issuesto listeners, while Senator Dianne Feinstein (D-Calif.) has said sheplans to look into reviving the "Fairness Doctrine."
Thedoctrine, abandoned in 1985, placed political speech by broadcastersunder the scrutiny of the Federal Communications Commission. FCCregulators mandated broadcasters "make reasonable judgments in goodfaith" on how best to present all sides of controversial issues.
Conservativeson Capitol Hill have banded together to oppose such a revival of thedoctrine while pundits and free speech advocates have railed againstthe reinstatement of rule, citing the 1984 Supreme Court decision thatnoted that the Fairness Doctrine had a "chilling effect" on speech.
Whileit’s true that the Fairness Doctrine did result in many broadcastersshying away from political speech altogether, few have been quick topoint out the obvious flaw in Durbin and Feinstein’s thinking.Replacing the marketplace of ideas with a board of overseers doesn’t doanything to rid the world of bias. It only empowers the bias of theoverseers.
Economist James Buchanan clinched the Nobel Prize in1986 for his keen observation that human beings don’t check theirself-interested ways at the door when entering the halls of Congress orthe offices of any of Washington’s many bureaucracies. Instead,commissioners and congressman alike act to advance their position,accrue more power, and expand the mission of their respective offices.
Thisis especially true of the FCC. The commission, created 80 years ago toregulate the fledgling radio industry, now regulates nearly allelectronically disseminated media to some degree. But the recentexplosion of choice in the media marketplace has left the commissiongrasping at straw men.
Worse yet, its most recent round ofregulations seek to solve its own bad rules with additional layers ofrules. Rather than freeing the airwaves from restriction afterrestriction, and thereby increasing broadcast competition, it seeks todictate what can be said and who can say it. Instead of opening up theInternet to more service providers, it seeks micromanage the globalnetwork.
Most recently it has attacked cable providers’ abilityto make private contracts and now seeks to make termination fees forviolating any communication service contract illegal. The commissionisn’t just seeking to regulate wireless and wired transmissions, butthe fundamentals of the marketplace itself.
Were the FCC giventhe power to police political speech for any lack of fairness, it’ssafe to assume that violations would be found in droves, because that’sthe whole point of the agency.
WITH A DEMOCRATICALLYcontrolled Senate and potential Democratic White House in 2009, currentcommissioner Michael Copps may soon hold the title of chairman, givingthe FCC a 3-2 Democratic majority.
This should be pleasant newsfor Senator Dorgan, whom Copps said has, "Struck a blow for localismand diversity in a media environment crying out for more of both."
Copps is right—in at least one sense. Consumers are crying out for diversity and local content are getting more of both in spite of government regulations.
AChairman Copps is the last thing the American media market needs.Instead, it needs an Alfred Kahn for the digital age. Kahn dismantledthe corrupt and anti-consumer Civil Aeronautics Board, earning him acoveted place in history as the final chairman of an unnecessary agency.
ChannelingJustice Holmes, Kahn once remarked when speaking about his victories atthe CAB that "The key point is that the market decides, not a bunch ofknow-it-alls in Washington." That’s true for airlines and doubly truefor free speech.