Justice Oliver Wendell Holmes famously wrote that the best test of truth "is the power of the thought to get itself accepted in the competition of the market..." But today many are turning away from this theory, calling for greater government intervention in media ownership over the perceived lack of fairness in the press.
Senator Byron Dorgan (D-ND), a vocal critic of the free market for ideas, recently stated, "We really do literally have five or six major corporations in this country that determine for the most part what Americans 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 38 percent of media revenue to 41 percent -- not exactly the kind of mass consolidation the pundits would have you fear.
But revenues -- the traditional means for measuring media market diversity -- are not the best way to gauge the diversity of opinions in the American marketplace of ideas. With the advent of the Internet and the new national pastime, blogging, media revenue models are being completely redrawn.
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). Fortune has quoted an unnamed source estimating that Huffington can expect her team 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 Post took in a comparatively whopping $496.2 million in advertising revenue. Yet its average daily circulation totaled 649,700, half of Nielson's conservative estimate of Huffington's reach.
Lean, web-based companies -- which have much lower operating costs and use far fewer dead trees to disseminate their ideas -- are left underrepresented in current media market measurement for no other reason than their relative efficiency. If we substituted eyeballs reached for dollars spent the already robust picture of the media market would show even less evidence for concern.
STILL, MANY BELIEVE there is need for regulation because Americans still receive the bulk of their news over the airwaves. Senate Majority Whip Dick Durbin has said that broadcasters should be required to give both sides of political issues to listeners, while Senator Dianne Feinstein (D-Calif.) has said she plans to look into reviving the "Fairness Doctrine."
The doctrine, abandoned in 1985, placed political speech by broadcasters under the scrutiny of the Federal Communications Commission. FCC regulators mandated broadcasters "make reasonable judgments in good faith" on how best to present all sides of controversial issues.
Conservatives on Capitol Hill have banded together to oppose such a revival of the doctrine while pundits and free speech advocates have railed against the reinstatement of rule, citing the 1984 Supreme Court decision that noted that the Fairness Doctrine had a "chilling effect" on speech.
While it's true that the Fairness Doctrine did result in many broadcasters shying away from political speech altogether, few have been quick to point out the obvious flaw in Durbin and Feinstein's thinking. Replacing the marketplace of ideas with a board of overseers doesn't do anything to rid the world of bias. It only empowers the bias of the overseers.
Economist James Buchanan clinched the Nobel Prize in 1986 for his keen observation that human beings don't check their self-interested ways at the door when entering the halls of Congress or the 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.
This is especially true of the FCC. The commission, created 80 years ago to regulate the fledgling radio industry, now regulates nearly all electronically disseminated media to some degree. But the recent explosion of choice in the media marketplace has left the commission grasping at straw men.
Worse yet, its most recent round of regulations seek to solve its own bad rules with additional layers of rules. Rather than freeing the airwaves from restriction after restriction, and thereby increasing broadcast competition, it seeks to dictate what can be said and who can say it. Instead of opening up the Internet to more service providers, it seeks micromanage the global network.
Most recently it has attacked cable providers' ability to make private contracts and now seeks to make termination fees for violating any communication service contract illegal. The commission isn't just seeking to regulate wireless and wired transmissions, but the fundamentals of the marketplace itself.
Were the FCC given the power to police political speech for any lack of fairness, it's safe to assume that violations would be found in droves, because that's the whole point of the agency.
WITH A DEMOCRATICALLY controlled Senate and potential Democratic White House in 2009, current commissioner Michael Copps may soon hold the title of chairman, giving the FCC a 3-2 Democratic majority.
This should be pleasant news for Senator Dorgan, whom Copps said has, "Struck a blow for localism and 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 and getting more of both in spite of government regulations.
A Chairman Copps is the last thing the American media market needs. Instead, it needs an Alfred Kahn for the digital age. Kahn dismantled the corrupt and anti-consumer Civil Aeronautics Board, earning him a coveted place in history as the final chairman of an unnecessary agency.
Channeling Justice Holmes, Kahn once remarked when speaking about his victories at the CAB that "The key point is that the market decides, not a bunch of know-it-alls in Washington." That's true for airlines and doubly true for free speech.
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