Saturday, January 23, 2010



Freedom of the press? What freedom of the Press?

Antitrust law trumps the 1st Amendment?
"The First Amendment prohibits Congress from making any law respecting the freedom of the press. Taken literally, of course, there's no such prohibition on the executive branch. Thus, it's apparently okay for the Justice Department to directly control the operations of newspapers.

As I discussed last year, the DOJ's Antitrust Division has been trying to dissolve a joint operating agreement between the Charleston Daily Mail and the Charleston Gazette. The DOJ said it was dissatisfied with the editorial quality of the Mail under the agreement. After nearly three years of litigation, the newspapers surrendered and will sign a new series of operating agreements at gunpoint.

That's not an exaggeration. The DOJ's proposed order expressly states the newspapers "shall enter into, and abide by the terms of, the Amended and Restated" joint operating agreement. The new agreement cannot be modified or terminated without the DOJ's written permission.

The DOJ order further states that, "The publication of the Charleston Daily Mail as a Daily Newspaper shall not be terminated unless it is a Failing Firm and the United States has given prior written approval." Even if the paper fails, the DOJ order also dictates how the Mail's assets must be disposed.

Finally, the DOJ order mandates a 50% discount for new subscriptions to the Daily Mail and prohibits the Gazette from matching any such discount.

So let's recap: The United States Government has forced two "independent" newspapers to sign a contract governing their business and editorial operations, prohibits one newspaper from ceasing to publish daily, and fixes subscription prices for both newspapers. All to protect "competition."

The DOJ order is still subject to a comment period and judicial review, but history suggests neither of these things will stand in the Antitrust Division's path. (And just to be clear, this is coming from DOJ bureaucrats, not the political leadership; this case started in the Bush administration, and there's been no significant policy change under the current regime.)

Source

The issue is whether newspapers are an industry especially protected from govenment control. One would have thought that the 1st Amendment could hardly be clearer about that

10 comments:

jwenting said...

1) the press should not be above the law
2) the constitution should be the law
3) freedom of expression should extend to all, not just the press

Leads to the conclusion that anti-trust laws are seriously flawed if they can be used to curb freedom of expression by anyone, not just the press, but that the press should abide by them until such a time as they are brought in line with the constitution. Fight it to the supreme court, etc.

Anonymous said...

I have always been someone who believes in a free press, but not a press that enjoys rights, protections, and privileges, above and beyond those enjoyed by the rest of us, as has been the case for a long time, especially those news organizations who see the world from the Left side.

IMO, the MSM has long abused the special "rights" it has been granted. Yes, the Constitution does say the press shall be "free", but free to do what? Is it free to distort the truth? Is it free to manipulate facts? Is it free to create impressions for the public based on furthering it's own Leftist political agenda? Todays MSM actually sees itself as the 4th branch of government, and in fact, with power over the other three. I don't recall the Constitution saying anything about that.

Anyone who watches the so-called cable news shows today knows there's very little factual news, and lots and lots of politically motivated opinion. The media has gone from simply reporting the news to, in many cases, actually creating it. This should not be protected. Also, when the media uses it's power and protections to take political sides, it's "free press" protections should cease.

Anonymous said...

Anyone who watches the so-called cable news shows today knows there's very little factual news, and lots and lots of politically motivated opinion. The media has gone from simply reporting the news to, in many cases, actually creating it. This should not be protected. Also, when the media uses it's power and protections to take political sides, it's "free press" protections should cease.

The press in the country has had a long history of taking sides on political issues. Do you think that the idea of a "Boston Massacre" was just created out of the blue? Do you think that the writings and editorials of the 1700's was any different than that of today?

I understand your sentiment and to some extent I agree with it. However, I do believe that the founding fathers understood the concept of what the press could do, and its influence on the general public. Yet even with that knowledge, they still decided to give "freedom of the press" a prominent place in the Constitution.

I have a tendency to go with them and what they believe as it has served us well for all these years. It is when people start monkeying around with the Constitution that I worry more than what the press says or does not say.

jwenting said...

"Yet even with that knowledge, they still decided to give "freedom of the press" a prominent place in the Constitution. "

Maybe so, but I doubt they ever intended the press to have freedoms above and beyond those of anyone else.
Right now the press is free to slander, steal, corrupt, invade privacy, etc. etc., all things you and I are not allowed to do.

Anonymous said...

How do we know that there actually are any anti trust laws? Could it be that maybe they made a mistake and called them laws when they are not constitutional and therefore never were laws?

Anonymous said...

Maybe so, but I doubt they ever intended the press to have freedoms above and beyond those of anyone else.

If you read the papers of the times, you'll find all sorts of attacks on public figures such as King George, state governors, and even Washington himself. (The Conway Cabal initially was a private matter but played out in the press.)

I would bet that they knew what was going on.

Right now the press is free to slander, steal, corrupt, invade privacy, etc. etc., all things you and I are not allowed to do.

To some extent you are correct. Yet once again I refer you back in time to when the Constitution was written. The type of things you are talking about was quite common.

The difference today might be the remedy for such "boorish" behavior in the press. Back in the day of the Founding Fathers, slanders and slights to which you refer were settled by duels.

But to some extent, I do agree with you. I believe that the press should not have certain exemptions including "shield laws" that give them immunity from prosecution for possession of stolen documents and classified information.

I believe we agree on that.

Anonymous said...

Anon 6:16 said;
"It is when people start monkeying around with the Constitution that I worry more than what the press says or does not say."

Isn't that the point? When the press abuses it's protected status with lies, distortions, and manipulations, are they not monkeying around with those constitutional protections? Or perhaps, did the Founding Fathers mean, a free press, but not an honest or truthful one.

Anonymous said...

Isn't that the point? When the press abuses it's protected status with lies, distortions, and manipulations, are they not monkeying around with those constitutional protections?

I don't believe that the press can monkey around with the Constitution and is only given the protection that judges and law makers give them. In other words, while I understand your point, it is not the press that I feel is monkeying around with the Constitution but judges and lawyers that allow, in some cases, the press to be given freedoms above what the Constitution says.

Or perhaps, did the Founding Fathers mean, a free press, but not an honest or truthful one.

I believe the Founding Fathers understood that people are not perfect and in cases where there are high emotions about something will distort and lie.

Once again I go back to the cases of the Boston Massacre, the Conway Cabal, the Boston Tea party, etc. All these were grossly distorted in the Colonial papers of the day to further a cause.

All these events took place before the writing of the Constitution which would mean that the Founding Fathers knew the power of the press to lie, distort, provoke and antagonize when the First Amendment was penned.

If we hold the press to a higher standard of accountability when dealing with the truth, aren't we then saying that the average citizen or politician has more rights than the members of the press?

I believe the "monkeying around" with the rights of the press has not occurred with the truthfulness of what they say, but rather with the perceived right to have stolen property (as in stolen documents) or classified documents.

In those areas we, as common citizens, could never proclaim a Constitutional protection yet somehow the Berger Court allowed an extension to the press far beyond what we "common folk" have.

That is what I mean by "monkeying around" with the Constitution. It is not truly done by the press. It is done by law makers and judges who are willing to extend non-existent "Constitutional protection" to a class of people, setting them above the rest of the populace.

Anonymous said...

Also keep in mind that those lawmakers and the press are integral parts of the same machine. They can not exist without each other which is why there's so much "back scratching".

Anonymous said...

These two Charleston papers operating in a joint fashion is big enough to fall under the eye of the Anti-Trust division??? Wow...

You'd think they'd be more focused on all these 'too large to fail' bank mergers over the last decade.