John Nichols and Robert W. McChesney were the founders, with Josh Silver, of Free Press, which has launched a campaign to save the news. Their book, Saving Journalism: The Soul of Democracy, will be published by New Press in the fall.
Communities across America are suffering through a crisis that could
leave a dramatically diminished version of democracy in its wake. It is
not the economic meltdown, although the crisis is related to the broader
day of reckoning that appears to have arrived. The crisis of which we
speak involves more than mere economics. Journalism is collapsing, and
with it comes the most serious threat in our lifetimes to
self-government and the rule of law as it has been understood here in
the United States.
After years of neglecting signs of trouble, elite opinion-makers have
begun in recent months to recognize that things have gone horribly awry.
Journals ranging from Time, The New Yorker, The
Atlantic and The New Republic to the New York Times
and the Los Angeles Times concur on the diagnosis: newspapers, as
we have known them, are disintegrating and are possibly on the verge of
extinction. Time’s Walter Isaacson describes the situation as
having “reached meltdown proportions” and concludes, “It is now possible
to contemplate a time in the near future when major towns will no longer
have a newspaper and when magazines and network news operations will
employ no more than a handful of reporters.” A newspaper industry that
still employs roughly 50,000 journalists–the vast majority of the
remaining practitioners of the craft–is teetering on the brink.
Blame has been laid first and foremost on the Internet, for luring away
advertisers and readers, and on the economic meltdown, which has
demolished revenues and hammered debt-laden media firms. But for all the
ink spilled addressing the dire circumstance of the ink-stained wretch,
the understanding of what we can do about the crisis has been woefully
inadequate. Unless we rethink alternatives and reforms, the media will
continue to flail until journalism is all but extinguished.
Let’s begin with the crisis. In a nutshell, media corporations, after
running journalism into the ground, have determined that news gathering
and reporting are not profit-making propositions. So they’re jumping
ship. The country’s great regional dailies–the Chicago Tribune,
the Los Angeles Times, the Minneapolis Star Tribune, the
Philadelphia Inquirer–are in bankruptcy. Denver’s Rocky
Mountain News recently closed down, ending daily newspaper
competition in that city. The owners of the San Francisco
Chronicle, reportedly losing $1 million a week, are threatening to
shutter the paper, leaving a major city without a major daily newspaper.
Big dailies in Seattle (the Times), Chicago (the
Sun-Times) and Newark (the Star-Ledger) are reportedly
near the point of folding, and smaller dailies like the Baltimore
Examiner have already closed. The 101-year-old Christian Science
Monitor, in recent years an essential source of international news
and analysis, is folding its daily print edition. The Seattle
Post-Intelligencer is scuttling its print edition and downsizing
from a news staff of 165 to about twenty for its online-only
incarnation. Whole newspaper chains–such as Lee Enterprises, the owner
of large and medium-size publications that for decades have defined
debates in Montana, Iowa and Wisconsin–are struggling as the value of
stock shares falls below the price of a single daily paper. And the
New York Times needed an emergency injection of hundreds of
millions of dollars by Mexican billionaire Carlos Slim in order to stay
afloat.
Those are the headlines. Arguably uglier is the death-by-small-cuts of
newspapers that are still functioning. Layoffs of reporters and closings
of bureaus mean that even if newspapers survive, they have precious few
resources for actually doing journalism. Job cuts during the first
months of this year–300 at the Los Angeles Times, 205 at the
Miami Herald, 156 at the Atlanta Journal-Constitution, 150
at the Kansas City Star, 128 at the Sacramento Bee, 100 at
the Providence Journal, 100 at the Hartford Courant,
ninety at the San Diego Union-Tribune, thirty at the Wall
Street Journal and on and on–suggest that this year will see far
more positions eliminated than in 2008, when almost 16,000 were lost.
Even Doonesbury’s Rick Redfern has been laid off from his job at
the Washington Post.
The toll is daunting. As former Washington Post executive editor
Leonard Downie Jr. and Post associate editor Robert Kaiser have
observed, “A great news organization is difficult to build and
tragically easy to disassemble.” That disassembling is now in full
swing. As journalists are laid off and newspapers cut back or shut down,
whole sectors of our civic life go dark. Newspapers that long ago closed
their foreign bureaus and eliminated their crack investigative
operations are shuttering at warp speed what remains of city hall,
statehouse and Washington bureaus. The Cox chain, publisher of the
Atlanta Journal-Constitution, the Austin
American-Statesman and fifteen other papers, will padlock its DC
bureau on April 1–a move that follows the closures of the respected
Washington bureaus of Advance Publications (the Newark
Star-Ledger, the Cleveland Plain Dealer and others); Copley
Newspapers and its flagship San Diego Union-Tribune; as well as
those of the once great regional dailies of Des Moines, Hartford,
Houston, Pittsburgh, Salt Lake City, San Francisco and Toledo.
Mired in debt and facing massive losses, the managers of corporate
newspaper firms seek to right the sinking ship by cutting costs, leading
remaining newspaper readers to ask why they are bothering to pay for
publications that are pale shadows of themselves. It is the daily
newspaper death dance-cum- funeral march.
But it is not just newspapers that are in crisis; it is the institution
of journalism itself. By any measure, journalism is missing from most
commercial radio. TV news operations have become celebrity- and
weather-obsessed “profit centers” rather than the journalistic icons of
the Murrow and Cronkite eras. Cable channels “fill the gap” with
numberless pundits and “business reporters,” who got everything about
the last decade wrong but now complain that the government doesn’t know
how to set things right. Cable news is defensible only because of the
occasional newspaper reporter moonlighting as a talking head. But what
happens when the last reporter stops collecting a newspaper paycheck and
goes into PR or lobbying? She’ll leave cable an empty vessel and take
the public’s right to know anything more than a rhetorical flourish with
her.
The Internet and blogosphere, too, depend in large part on “old media”
to do original journalism. Web links still refer readers mostly to
stories that first appeared in print. Even in more optimistic scenarios,
no one has a business model to sustain digital journalism beyond a small
number of self-supporting services. The attempts of newspapers to shift
their operations online have been commercial failures, as they trade old
media dollars for new media pennies. We are enthusiastic about Wikipedia
and the potential for collaborative efforts on the web; they can help
democratize our media and politics. But they do not replace skilled
journalists on the ground covering the events of the day and doing
investigative reporting. Indeed, the Internet cannot achieve its
revolutionary potential as a citizens’ forum without such journalism.
So this is where we stand: much of local and state government, whole
federal departments and agencies, American activities around the world,
the world itself–vast areas of great public concern–are either
neglected or on the verge of neglect. Politicians and administrators
will work increasingly without independent scrutiny and without public
accountability. We are entering historically uncharted territory in
America, a country that from its founding has valued the press not
merely as a watchdog but as the essential nurturer of an informed
citizenry. The collapse of journalism and the democratic infrastructure
it sustains is not a development that anyone, except perhaps corrupt
politicians and the interests they serve, looks forward to. Such a
crisis demands solutions equal to the task. So what are they?
Regrettably the loud discussion of the collapse of journalism has been
far stronger in describing the symptoms than in providing remedies. With
the frank acknowledgment that the old commercial system has failed and
will not return, there has been a flurry of modest proposals to address
the immodest crisis. These range from schemes to further consolidate
news gathering at the local level to pleas for donations from news
consumers and hopes that hard-pressed philanthropists and foundations
will decide to go into the news business. And they range from
ineffectual to improbable to undesirable. Walter Isaacson has proposed
that newspapers come up with a plan to charge readers “micropayments”
for online content. Even if such a system were practically possible, the
last thing we should do is erect electronic walls that block the
openness and democratic genius of the Internet.
Don’t get us wrong. We are enthusiastic about many of the efforts to
promote original journalism online, such as ProPublica, Talking Points
Memo and the Huffington Post. We cheer on exciting local endeavors, such
as MinnPost in the Twin Cities–a nonprofit, five-day-a-week online
journal that covers Minnesota politics with support from major
foundations, wealthy families and roughly 900 member-donors contributing
$10 to $10,000. But even our friends at MinnPost acknowledge that their
project is not filling the void in a metro area that still has two
large, if struggling, daily newspapers. Just about every serious
journalist involved in an online project will readily concede that even
if these ventures pan out, we will still have a dreadfully
undernourished journalism system with considerably less news gathering
and reporting, especially at the local level.
For all their merits and flaws, these fixes are mere triage strategies.
They are not cures; in fact, if there is a risk in them, it is that they
might briefly discourage the needed reshaping of ownership models that
are destined to fail.
The place to begin crafting solutions is with the understanding that the
economic downturn did not cause the crisis in journalism; nor did the
Internet. The economic collapse and Internet have greatly accentuated
and accelerated a process that can be traced back to the 1970s, when
corporate ownership and consolidation of newspapers took off. It was
then that managers began to balance their books and to satisfy the
demand from investors for ever-increasing returns by cutting journalists
and shutting news bureaus. Go back and read a daily newspaper published
in a medium-size American city in the 1960s, and you will be awed by the
rich mix of international, national and local news coverage and by the
frequency with which “outsiders”–civil rights campaigners, antiwar
activists and consumer advocates like Ralph Nader–ended up on the front
page.
As long ago as the late 1980s and early 1990s, prominent journalists and
editors like Jim Squires were quitting the field in disgust at the
contempt corporate management displayed toward journalism. Print
advertising, which still accounts for the lion’s share of newspaper
revenue, declined gently as a percentage of all ad spending from 1950 to
‘90, as television grew in importance. Starting in 1990, well before the
rise of the web as a competitor for ad dollars, newspaper ad revenues
went into a sharp decline, from 26 percent of all media advertising that
year to what will likely be around 10 percent this year.
Even before that decline, newspaper owners were choosing short-term
profits over long-term viability. As far back as 1983, legendary
reporter Ben Bagdikian warned publishers that if they continued to water
down their journalism and replace it with (less expensive) fluff, they
would undermine their raison d’être and fail to cultivate younger
readers. But corporate newspaper owners abandoned any responsibility to
maintain the franchise. When the Internet came along, newspapers were
already heading due south.
We do not mean to suggest that ’60s journalism was perfect or that we
should aim to return there. Even then journalism suffered from a
generally agreed-upon professional code that relied far too heavily on
official sources to set the news agenda and decide the range of debate
in our political culture. That weakness of journalism has been magnified
in the era of corporate control, leaving us with a situation most
commentators are loath to acknowledge: the quality of journalism in the
United States today is dreadful.
Of course, there are still tremendous journalists doing outstanding
work, but they battle a system increasingly pushing in the opposite
direction. (That is why some of the most powerful statements about our
current circumstances come in the form of books, like Naomi Klein’s
The Shock Doctrine; or documentaries, like Michael Moore’s
Bowling for Columbine; or beat reporting in magazines, like that
of Jane Mayer and Seymour Hersh at The New Yorker.) The
news media blew the coverage of the Iraq invasion, spoon-feeding us lies
masquerading as fact-checked verities. They missed the past decade of
corporate scandals. They cheered on the housing bubble and genuflected
before the financial sector (and Gilded Age levels of wealth and
inequality) as it blasted debt and speculation far beyond what the real
economy could sustain. Today they do almost no investigation into where
the trillions of public dollars being spent by the Federal Reserve and
Treasury are going but spare not a moment to update us on the “Octomom.”
They trade in trivia and reduce everything to spin, even matters of life
and death.
No wonder young people find mainstream journalism uninviting; it would
almost be more frightening if they embraced what passes for news today.
Older Americans have been giving up on old media too, if not as rapidly
and thoroughly as the young. If we are going to address the crisis in
journalism, we have to come up with solutions that provide us with
hard-hitting reporting that monitors people in power, that engages all
our people, not just the classes attractive to advertisers, and that
seeks to draw all Americans into public life. Going backward is not an
option; nor is it desirable. The old corporate media system choked on
its own excess. We should not seek to restore or re-create it. We have
to move forward to a system that creates a journalism far superior to
that of the recent past.
We can do exactly that–but only if we recognize and embrace the
necessity of government intervention. Only government can implement
policies and subsidies to provide an institutional framework for quality
journalism. We understand that this is a controversial position. When
French President Nicolas Sarkozy recently engineered a $765 million
bailout of French newspapers, free marketeers rushed to the barricades
to declare, “No, no, not in the land of the free press.” Conventional
wisdom says that the founders intended the press to be entirely
independent of the state, to preserve the integrity of the press. Bree
Nordenson notes that when she informed famed journalist Tom Rosenstiel
that her visionary 2007 Columbia Journalism Review article
concerned the ways government could support the press, Rosenstiel
“responded brusquely, ‘Well, I’m not a big fan of government support.’ I
explained that I just wanted to put the possibility on the table. ‘Well,
I’d take it off the table,’ he said.”
We are sympathetic to that position. As writers, we have been routinely
critical of government–Democratic and Republican–over the past three
decades and antagonistic to those in power. Policies that would allow
politicians to exercise even the slightest control over the news are, in
our view, not only frightening but unacceptable. Fortunately, the rude
calculus that says government intervention equals government control is
inaccurate and does not reflect our past or present, or what enlightened
policies and subsidies could entail.
Our founders never thought that freedom of the press would belong only
to those who could afford a press. They would have been horrified at the
notion that journalism should be regarded as the private preserve of the
Rupert Murdochs and John Malones. The founders would not have
entertained, let alone accepted, the current equation that seems to say
that if rich people determine there is no good money to be made in the
news, then society cannot have news. Let’s find a king and call it a
day.
The founders regarded the establishment of a press system, the Fourth
Estate, as the first duty of the state. Jefferson and Madison devoted
considerable energy to explaining the necessity of the press to a
vibrant democracy. The government implemented extraordinary postal
subsidies for the distribution of newspapers. It also instituted massive
newspaper subsidies through printing contracts and the paid publication
of government notices, all with the intent of expanding the number and
variety of newspapers. When Tocqueville visited the United States in the
1830s he was struck by the quantity and quality of newspapers and
periodicals compared with France, Canada and Britain. It was not an
accident. It had little to do with “free markets.” It was the result of
public policy.
Moreover, when the Supreme Court has taken up matters of freedom of the
press, its majority opinions have argued strongly for the necessity of
the press as the essential underpinning of our constitutional republic.
First Amendment absolutist Hugo Black wrote that the “Amendment rests on
the assumption that the widest possible dissemination of information
from diverse and antagonistic sources is essential to the welfare of the
public, that a free press is a condition of a free society.” Black
argued for the right and necessity of the government to counteract
private monopolistic control over the media. More recently Justice
Anthony Kennedy, a Reagan appointee, argued that “assuring the public
has access to a multiplicity of information sources is a governmental
purpose of the highest order.”
But government support for the press is not merely a matter of history
or legal interpretation. Complaints about a government role in fostering
journalism invariably overlook the fact that our contemporary media
system is anything but an independent “free market” institution. The
government subsidies established by the founders did not end in the
eighteenth–or even the nineteenth–century. Today the government doles
out tens of billions of dollars in direct and indirect subsidies,
including free and essentially permanent monopoly broadcast licenses,
monopoly cable and satellite privileges, copyright protection and postal
subsidies. (Indeed, this magazine has been working for the past few
years with journals of the left and right to assure that those subsidies
are available to all publications.) Because the subsidies mostly benefit
the wealthy and powerful, they are rarely mentioned in the fictional
account of an independent and feisty Fourth Estate. Both the rise and
decline of commercial journalism can be attributed in part to government
policies, which scrapped the regulations and ownership rules that had
encouraged local broadcast journalism and allowed for lax regulation as
well as tax deductions for advertising–policies that greatly increased
news media revenues.
The truth is that government policies and subsidies already define our
press system. The only question is whether they will be enlightened and
democratic, as in the early Republic, or corrupt and corrosive to
democracy, as has been the case in recent decades. The answer will be
determined in coming years as part of what is certain to be a bruising
battle: media companies and their lobbying groups will argue against the
“heavy hand of government” while defending existing subsidies. They will
propose more deregulation, hoping to capitalize on the crisis to remove
the last barriers to print, broadcast and digital consolidation in local
markets–creating media “company towns,” where competition is
eliminated, along with journalism jobs, in pursuit of better returns for
investors. Enlightened elected officials, media unions and public
interest and community groups that recognize the role of robust
journalism are going to have to step up to argue for a real fix.
Fortunately, an increasing number of veteran journalists, scholars and
activists are beginning to grasp the historical significance of the
present moment and the central role of public policy. It was the late
James Carey, decorated University of Illinois and Columbia journalism
professor and no fan of government power, who saw this before almost
anyone else, writing in 2002: “Alas, the press may have to rely upon a
democratic state to create the conditions necessary for a democratic
press to flourish and for journalists to be restored to their proper
role as orchestrators of the conversation of a democratic culture.”
We have to ask where we want to end up, after the reforms have been
implemented. In our view we need to have competing independent newsrooms
of well-paid journalists in every state and in every major community.
This is not about newspapers or even broadcast media; it entails all
media and accepts that we may be headed into an era when nearly all of
our communication will be digital. Ideally this will be a pluralistic
system, where there will be different institutional structures.
Varieties of nonprofit media will have to play a much larger role,
though not a monopolistic one.
We recognize and embrace the need for a system in which there will be a
range of perspectives from left to right, alongside some media more
intent on maintaining a less explicitly ideological stance. We must have
a system that prohibits state censorship and that minimizes commercial
control over journalistic values and pursuits. The right of any person
to start his or her own medium, commercial or nonprofit, at any time is
inviolable. From this foundation we can envision a thriving, digital
citizen’s journalism complementing and probably merging with
professional journalism. What will the mix be? It would vary, with more
not-for-profit and subsidized media in rural and low-income areas, more
for-profit media in wealthier ones. The first order of any government
intervention would be to assure that no state or region would be without
quality local, state, national or international journalism.
We begin with the notion that journalism is a public good, that it has
broad social benefits far beyond that between buyer and seller. Like all
public goods, we need the resources to get it produced. This is the role
of the state and public policy. It will require a subsidy and should be
regarded as similar to the education system or the military in that
regard. Only a nihilist would consider it sufficient to rely on
profit-seeking commercial interests or philanthropy to educate our youth
or defend the nation from attack. With the collapse of the commercial
news system, the same logic applies. Just as there came a moment when
policy-makers recognized the necessity of investing tax dollars to
create a public education system to teach our children, so a moment has
arrived at which we must recognize the need to invest tax dollars to
create and maintain news gathering, reporting and writing with the
purpose of informing all our citizens.
So, if we can accept the need for government intervention to save
American journalism, what form should it take? In the near term, we need
to think about an immediate journalism economic stimulus, to be
revisited after three years, and we need to think big. Let’s eliminate
postal rates for periodicals that garner less than 20 percent of their
revenues from advertising. This keeps alive all sorts of magazines and
journals of opinion that are being devastated by distribution costs. It
is these publications that often do investigative, cutting-edge,
politically provocative journalism.
What to do about newspapers? Let’s give all Americans an annual tax
credit for the first $200 they spend on daily newspapers. The newspapers
would have to publish at least five times per week and maintain a
substantial “news hole,” say at least twenty-four broad pages each day,
with less than 50 percent advertising. In effect, this means the
government will pay for every citizen who so desires to get a free daily
newspaper subscription, but the taxpayer gets to pick the
newspaper–this is an indirect subsidy, because the government does not
control who gets the money. This will buy time for our old media
newsrooms–and for us citizens–to develop a plan to establish
journalism in the digital era. We could see this evolving into a system
to provide tax credits for online subscriptions as well.
None of these proposed subsidies favor or censor any particular
viewpoint. The primary condition on media recipients of this stimulus
subsidy would be a mild one: that they make at least 90 percent of their
content immediately available free online. In this way, the subsidies
would benefit citizens and taxpayers, expanding the public domain and
providing the Internet with a rich vein of material available to all.
What should be done about the disconnect between young people and
journalism? Have the government allocate funds so every middle school,
high school and college has a well-funded student newspaper and a
low-power FM radio station, all of them with substantial websites. We
need to get young people accustomed to producing journalism and to
appreciating what differentiates good journalism from the other stuff.
The essential component for the immediate stimulus should be an
exponential expansion of funding for public and community broadcasting,
with the requirement that most of the funds be used for journalism,
especially at the local level, and that all programming be available for
free online. Other democracies outspend the United States by whopping
margins per capita on public media: Canada sixteen times more; Germany
twenty times more; Japan forty-three times more; Britain sixty times
more; Finland and Denmark seventy-five times more. These investments
have produced dramatically more detailed and incisive international
reporting, as well as programming to serve young people, women,
linguistic and ethnic minorities and regions that might otherwise be
neglected by for-profit media.
Perhaps in the past the paucity of public media in the United States
could be justified by the enormous corporate media presence. But as the
corporate sector shrivels we need something to replace it, and fast.
Public and community broadcasters are in a position to be just that, and
to keep alive the practice of news gathering in countless communities
across the nation. Indeed, if a regional daily like the San Francisco
Chronicle fails this year, why not try a federally funded
experiment: maintain the newsroom as a digital extension of the local
public broadcasting system?
Currently the government spends less than $450 million annually on
public media. (To put matters in perspective, it spends several times
that much on Pentagon public relations designed, among other things, to
encourage favorable press coverage of the wars that the vast majority of
Americans oppose.) Based on what other highly democratic and free
countries do, the allocation from the government should be closer to $10
billion. All totaled, the suggestions we make here for subscription
subsidies, postal reforms, youth media and investment in public
broadcasting have a price tag in the range of $60 billion over the next
three years.
This is a substantial amount of money. In normal times it might be too
much to ask. But in a time of national crisis, when an informed and
engaged citizenry is America’s best hope, $20 billion a year is chicken
feed for building what would essentially be a bridge across which
journalism might pass from dying old media to the promise of something
new. Think of it as a free press “infrastructure project” that is
necessary to maintain an informed citizenry, and democracy itself. It
would keep the press system alive. And it has the added benefit of
providing an economic stimulus. If these journalists (and the tens of
thousands of production and distribution workers associated with
newspapers) are not put to work through the programs we propose, their
knowledge and expertise will be lost. They will be unemployed, and their
unemployment will contribute to further stagnation and economic
decline–especially in big cities where newspapers are major employers.
These proposals are a good start, but then the really hard work begins.
We have to come up with a plan to convert failing newspapers into
journalistic entities with the express purpose of assuring that fully
staffed, functioning and, ideally, competing newsrooms continue to
operate in communities across the country. The only way to do this is by
using tax policies, credit policies and explicit subsidies to convert
the remains of old media into independent, stable institutions that are
ready to compete and communicate in the decades to come. To get from
here to there, and especially to make possible multiple competing
newsrooms in larger communities, policy-makers should be open to
commercial ownership, municipal ownership, staff ownership or
independent nonprofit ownership. Ideally the next media system will have
a combination of the above; and the government should be prepared to
rewrite rules and regulations and to use its largesse to aid a variety
of sound initiatives.
We confess that we do not have all the answers. Neither, we have
discovered, does anyone else. The fatal flaw in so many sincere but
doomed responses to the current crisis is that they try to do the
impossible, to create a system using varying doses of foundation grants,
do-gooder capitalism, citizen donations, volunteer labor, the
anticipation of a miraculous increase in advertising manna and/or a
sudden–and in our view unimaginable–reversal on the part of Americans
who have thus far shown no inclination to pay for online content. At
best, these are piecemeal proposals when we are in dire need of building
an entire edifice. The money from these sources is insufficient to
address the crisis in journalism.
We have to open the door to enlightened public policies and subsidies.
We need our members of Congress and our leading scholars to approach
this matter with the same urgency with which they would approach the
threat of terrorism, pandemic, financial collapse or climate change. We
need an organized citizenry demanding the institutions that make
self-government possible. Only then can we, like our founders, build a
free press. The technologies and the economic challenges are, of course,
more complex than in the 1790s, but the answer is the same: the
democratic state, the government, must create the conditions for
sustaining the journalism that can provide the people with the
information they need to be their own governors.
About John Nichols
John Nichols, a pioneering political blogger, has written The
Beat since 1999. His posts have been circulated internationally, quoted
in numerous books and mentioned in debates on the floor of Congress.
Nichols writes about politics for The Nation magazine as its
Washington correspondent. He is a contributing writer for The
Progressive and In These Times and the associate editor of
the Capital Times, the daily newspaper in Madison, Wisconsin.
His articles have appeared in the New York Times, Chicago
Tribune and dozens of other newspapers. more…
About Robert W. McChesney
Robert McChesney is Gutgsell Endowed Professor in the Department of Communication at the University of Illinois. He hosts the program Media Matters on WILL-AM every Sunday afternoon from 1-2PM central time. He and John Nichols, The Nation’s Washington correspondent, are the founders of Free Press, the media reform network, and the authors of Tragedy and Farce: How the American Media Sell Wars, Spin Elections, and Destroy Democracy (New Press). He has written 16 books and his work has been translated into 15 languages. more…
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The Federal Trade Commission announced late Tuesday that, although the Justice Department investigates mergers of newspapers and is responsible for evaluating Joint Operating Agreements under the 1970 Newspaper Preservation Act, the FTC will hold a hearing on competition in the chaotic news industry.
Internet Threatened by Censorship, Secret Surveillance, and Cybersecurity Laws
Tuesday, May 26th, 2009By Stephen Lendman
At a time of corporate dominated media, a free and open Internet is democracy’s last chance to preserve our First Amendment rights without which all others are threatened. Activists call it Net Neutrality. Media scholar Robert McChesney says without it “the Internet would start to look like cable TV (with a) handful of massive companies (controlling) content†enough to have veto power over what’s allowed and what it costs. Progressive web sites and writers would be marginalized or suppressed, and content systematically filtered or banned.
Media reform activists have drawn a line in the sand. Net Neutrality must be defended at all costs. Preserving a viable, independent, free and open Internet (and the media overall) is essential to a functioning democracy, but the forces aligned against it are formidable, daunting, relentless, and reprehensible. Some past challenges suggest future ones ahead.
Censorship Attempts to Curtail Free Expression
The First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.â€
Nonetheless, Congress and state legislatures have repeatedly tried to censor free speech, allegedly regarded as indecent, obscene, hateful, terrorist-related, or harmful to minors. However, the Supreme Court, in a number of decisions, ruled that the government may not regulate free expression, only its manner such as when it violates the right to privacy “in an essentially intolerable manner†— a huge hurtle to overcome, including online, because viewers are protected by simply “averting (one’s) eyes (Cohen v. California, 1971).â€
In 1998, the Child Online Protection Act (COPA) passed, but was blocked by federal courts as an infringement of free speech and therefore unconstitutional and unenforceable. In 1999, the law was struck down at the Appellate Court level, but it stayed on the books. In 2002, the Supreme Court reviewed the ruling and returned the case for reconsideration. It remained blocked. Then in March 2003, the Appellate Court again ruled it unconstitutional on the grounds that it would hinder protected adult speech that’s likely what it was about in the first place.
Other litigation followed at the District and Appellate levels until on January 21, 2009, the Supreme Court killed COPA by refusing to hear appeals to affirm it. The Electronic Frontier Foundation put it this way: “After 10 Years, an Infamous Internet-Censorship Act is Finally Dead.†At least that’s the hope, but censorship attempts never die. They just reinvent themselves in new forms made all the easier when powerful corporate interests and their congressional allies support them.
In 2000, the Children’s Internet Protection Act (CIPA) became law, and the Supreme Court upheld it — to regulate online content deemed “indecent (or) harmful to minors.†The law requires schools, libraries and other public institutions to install blocking software to prevent minors from having access to it.
In 2006, the Deleting Online Predators Act (DOPA) passed the House but not the Senate. It also would have mandated schools, libraries and other public institutions to prevent minors from accessing “commercial social networking websites (and) chat rooms.â€
Its language was broad enough to apply also to sites like Amazon, Yahoo, Wikipedia and others and would have made the FCC a gatekeeper/censor. As the Protecting Children in the 21st Century Act, the law was reintroduced in the Senate in January 2007 but never passed.
In February 1996, the Communications Decency Act (CDA) was passed to regulate alleged indecent and obscene online content in violation of the First Amendment. Under the law, classic fiction would be banned as well as any material deemed offensive. In June, 1996, a three-judge federal panel partially struck it down for restricting adult free speech. In June 1997, the Supreme Court upheld the lower court ruling in Reno v. American Civil Liberties Union.
The Act was Title V of the 1996 Telecommunications Act titled Broadcast Obscenity and Violence that applied broadcast standards to the Internet. Under Section 230, Internet services operators aren’t considered publishers and thus have no liability for the words of third parties using their services.
In 2003, Congress amended CDA by removing struck down indecency provisions. In 2005, a three-judge Southern District of New York panel rejected Barbara Nitke’s obscenity provisions CDA challenge (in Nitke, et al v. Ashcroft). The Supreme Court upheld the decision.
In 2005, the Violence Against Women and Department of Justice Reauthorization Act (VAWDOJRA) became law and another blow to online free speech by prohibiting “any device (like a modem) or software that can be used to originate… (anonymous or other) communications that are transmitted, in whole or in part, by the internet†for the alleged purpose of harassment, even if only vigorous constitutional debate was intended or ordinary free speech.
In October 2007, the House passed the Violent Radicalization and Homegrown Terrorism Act called “the thought crime prevention bill.†It was introduced in the Senate, referred to the Homeland Security and Governmental Affairs Committee, but never voted on or passed.
If it ever becomes law in its present form, it will establish a commission and Center for Excellence to study and act against “thought criminals†(including online ones) for alleged acts of “violent radicalization (and) homegrown terrorism†defined as follows:
In other words, this law, if passed, will criminalize whatever the government wishes to include under the above two categories, including constitutionally protected speech online or elsewhere.
Another ongoing censorship issue involves craigslist — a worldwide online community network featuring classified ads for “jobs, housing, for sale, personals, services, local community, and events.â€
On May 5, South Carolina Attorney (AG) General Henry McMaster notified its CEO, Jim Buckmaster, that unless an “erotic services†section is removed in 10 days, “craigslist management may be subject to criminal investigation and prosecution.†Other AGs in Rhode Island, Illinois, and Connecticut issued similar threats even though all of them are baseless.
Previous courts have held that Section 230 of the Communications Decency Act (CDA) protects “interactive computer service†providers like craigslist and lets them be self-regulating and free from liability. The law clearly states that they shouldn’t be responsible for third party content because they didn’t do enough to comply with individual State standards that may violate the First Amendment and federal law.
In craigslist’s case, it’s gone way beyond its legal obligations. In November 2008, it agreed to technical and policy changes to curb the use of its site for illegal purposes by third parties, including requiring telephone and credit card verification for “erotic services†ads to reject ones deemed illegal.
Earlier, craigslist screened out 90% of these ads. Nonetheless, it’s being unfairly targeted by AGs interpreting Section 230 and First Amendment rights as they please. Federal law, however, protects craigslist, but not against ambitious AGs harassment for their own political advantage and self-interest.
On May 20, craigslist announced that it filed suit against South Carolina Attorney General Henry McMaster seeking “declaratory relief and a restraining order with respect to criminal charges he has repeatedly threatened against craigslist and its executives.†Craigslist is on solid footing. It’s in full compliance with the law, but McMaster’s persistent threats forced it to sue in federal court.
These and numerous other congressional and other attempts aim to censor protected speech, including online. Expect more of this ahead, some legislation to be enacted, at times upheld by the courts, and, as a result, our liberties to be chipped away incrementally and lost — unless a line in the sand is drawn and defended by enough of the committed to do it.
On February 29, 2008, one skirmish turned out successfully when a federal judge let the anonymous whistle-blowing WikiLeaks resume operations after a week earlier ordering its US hosting company and domain registrar (Dynadot) to shut down and lock out its site. In his reconsidered ruling, District Judge Jeffrey White conceded he was having second thoughts regarding “serious questions of prior restraint (and) possible violations of the First Amendment.†He added that “the court does not want to be a part of any order that is not constitutional.†Even so, one triumph doesn’t mean victory. The struggle for unimpeded free speech continues.
Secret Unconstitutional Surveillance, Including Online Data Mining
The right to privacy is sacred even though no constitutional provision specifically mandates it. Nonetheless, the First Amendment guarantees free and open speech and beliefs. The Third Amendment the privacy of our homes against demands to be used to house soldiers. The Fourth Amendment against unreasonable searches and seizures. The Fifth Amendment against self-incrimination and privacy of our personal information.
Also, the Ninth Amendment states that the “enumeration of certain (of the Bill of) rights shall not be construed to deny or disparage other rights retained by the people.†In Griswold v. Connecticut (1965), the Supreme Court held that the Constitution protects privacy in a case affirming the right to use contraceptives and that banning them violated the “right to marital privacy.â€
In Justice Arthur Goldberg’s concurring opinion, he cited the Ninth Amendment in defense of the ruling. Earlier High Courts also affirmed the constitutional right of privacy on matters of marriage, child rearing, procreation, education, termination of medical treatment, possessing and viewing pornography, abortion, and more as well as overall privacy protection.
The 14th Amendment’s “liberty†clause also relates to privacy by stating: “nor shall any State deprive any person of life, liberty, or property, without due process of law…†Courts have broadened the meaning of “liberty†to include personal, political and social rights and privileges. Thus, invasion of private spaces is unconstitutional.
In Olmstead v. US (1928), Justice Louis Brandeis stated:
George Bush institutionalized lawless spying invasions of privacy on Americans and others. Barack Obama continues the practice under the same federal agencies, including the FBI, CIA, Pentagon and NSA. On April 15, the New York Times headlined: “Officials Say US Wiretaps Exceeded Law.â€
It cited the NSA’s practice in recent months of intercepting private emails and phone calls of Americans “on a scale that went beyond the broad legal limits established by Congress last year…†Briefed intelligence officials and lawyers called it “significant and systematic… overcollection†in violation of the law.
The Justice Department acknowledged the problem but said it was resolved. For its part, the NSA said its “intelligence operations, including programs for collection and analysis, are in strict accordance with US laws and regulations.†The Office of the Director of National Intelligence, in overall charge, downplayed the Times story, referred to “inadvertent mistakes,†and claimed efforts were immediately implemented to correct them.
Nonetheless, the issue remains unsettled, and new details reveal earlier domestic surveillance, including wiretapping a congressional member without court approval, and systematically doing it against many American citizens.
Tom Burghardt writes often on these issues at his Antifascist Calling blog… “Exploring the shadowlands of the corporate police state.†In calling “Spying on Americans: ‘Business as Usual’ under Obama,†he reported that working cooperatively with private corporations, the NSA collects vast amounts of “transactional data such as credit card purchases, bank transactions and travel itineraries… sold to (the agency) by corporate freebooters.†It’s then data-mined for “suspicious patterns,†a practice begun pre-9/11 but expanded greatly since then.
More than just financial transactions are monitored. According to investigative journalist Christopher Ketchum, “as many as ‘8 million Americans are now listed (as) secret enemies… who could face detention under martial law (and subjected) to everything from heightened surveillance and tracking to direct questioning†and possible internment.
Nothing under Obama has changed in spite of serious privacy, civil liberties, and other constitutional issues. Director Rod Beckstrom of DHS’ Cyber Security Center resigned in March because of NSA’s “greater role in guarding the government’s computer systems†and its concentrated power without checks and balances.
According to Electronic Frontier Foundation’s senior staff attorney Kevin Bankston: Obama’s “Justice Department (is continuing) the Bush administration’s cover-up of the National Security Agency’s dragnet surveillance of millions of Americans, and insisting that the much-publicized warrantless wiretapping program is still a ’secret’ that cannot be reviewed by the courts…†because doing so would harm national security.
Worse still is the DOJ’s assertion that the US government is immune from illegal spying litigation even when in violation of federal privacy statutes, an unprecedented claim exceeding the Bush administration citing “sovereign immunity.†Obama is going Bush one better by saying the Patriot Act immunizes the government from being sued under surveillance provisions of the Wiretap Act, Stored Communications Act, and Foreign Intelligence Surveillance Act’s (FISA) enhanced warrantless wiretapping powers in cooperation with complicit telecom providers. In other words, Obama’s DOJ absolves itself and its corporate allies of accountability under existing federal statutes that prohibit illegal spying on Americans.
On April 26, Burghhardt reported that “The Pentagon’s Cyber Command Formidable Infrastructure arrayed against the American People†will be headed by the NSA’s director, Lt. General Keith Alexander, to protect the military’s networks from hacker attacks, especially from countries like China and Russia. How this will “affect civilian computer networks is unclear. However, situating†it alongside NSA at Fort Meade, MD “should set alarm bells ringing (because of NSA’s) potential for (greater) abuse… given (its) role in illegal domestic surveillance… (and its) tremendous technical capabilities.â€
“As a Pentagon agency, NSA has positioned itself to seize near total control over the country’s electronic infrastructure, thereby exerting an intolerable influence — and chilling effect — over the nation’s political life.†Recent history shows that “NSA and their partners at CIA, FBI, et. al. have targeted political dissidents,†including anti-war protesters, environmentalists, and others for their activism and beliefs. Greater NSA powers will “transform ‘cybersecurity’ into a euphemism for keeping the rabble in line (and) achieving ‘full spectrum dominance’ via ‘Cyberspace Offensive Counter-Operations.’ â€
Directed against ordinary Americans, democratic freedoms will be severely compromised. No matter as “the Obama administration (prepares) to hand control of the nation’s electronic infrastructure over to a (rogue) agency†— with General Alexander telling the House Armed Services subcommittee that America needs a digital warfare force for defensive and offensive cyber operations. More resources are required to do it, not for public security, but for imperial conquest and containing dissent at home – in violation of constitutional freedoms and international law.
In a follow-up May 4 article, Burghardt explored the secret, unaccountable world of FBI data mining through its Investigative Data Warehouse (IDW) containing over a billion documents, including many on US citizens. They come from our personal records and history, including what’s obtainable online through illegal spying.
According to the Electronic Frontier Foundation’s (EFF) Kurt Opsahl, “The IDW includes more than four times as many documents as the Library of Congress, and the FBI has asked for millions of dollars to data-mine this warehouse, using unproven science in an attempt to predict future crimes from past behavior.†This illegal spying violates our constitutional right to privacy and endangers our freedom by generating unsubstantiated threats based on pure supposition.
Besides the FBI, it’s virtually certain that other, perhaps all 16, government intelligence agencies conduct similar spying illegally, and as such, endanger everyone’s freedom.
Earlier on July 14, 2008, an ACLU press release headlined: “Terrorist Watch List Hits One Million Names†based on government reported figures. They include: “Members of Congress, nuns, war heros and other ’suspicious characters’ (like anti-war and environmental activists)… trapped in the Kafkaesque clutches of this list, with little hope of escape.â€
According to the ACLU’s Technology and Liberty Program director, Barry Steinhardt, this data base represents “what’s wrong with this administration’s approach to security: it’s unfair, out-of-control, a waste of resources, treats the rights of the innocent as an afterthought, and is a very real impediment in the lives of millions of (people) in this country. Putting a million names on a watch list is a guarantee (it) will do more harm than good†besides being ineffective to catch real criminals.
Given the current scope and intent of FBI data mining, with millions under surveillance, its potential for abuse far exceeds where it stood less than a year ago – because the Obama administration supports it. No longer is anything about us private, including:
Our entire private world is now public if spy snoops decide to invade it.
Key Internet-based companies, like Google, do it routinely; the company UK-based Privacy International ranked worst in its September 2007 “Race to the Bottom†report. It stated:
“… throughout our research we have found numerous deficiencies and hostilities in Google’s approach to privacy that go well beyond those of other organizations.†It tops them all “as an endemic threat to privacy. This is in part due to the diversity and specificity of Google’s product range and the ability of the company to share extracted data between these tools, and in part due to Google’s market dominance and the sheer size of its user base.â€
It’s also unmatched in “its aggressive use of invasive or potentially invasive technologies and techniques.†It’s able to “deep-drill into the minutiae of a user’s life and lifestyle choices†irresponsibly. Its attitude toward privacy is blatantly hostile at worst and benignly ambivalent at best. Specifically:
– Google retains a large amount of user information with no limitation on its subsequent use or disclosure and with no chance for users to delete or withdraw it;
– it retains all “search strings and associated IP-addresses and time stamps for at least 18 to 24 months (retention) and does not provide users with an expungement option;â€
– it has other personal information, including hobbies, employment, addresses, phone numbers, and more, and retains it even after users delete their profiles;
– it “collects all search results entered through Google Toolbar and identifies all Google Toolbar users with a unique cookie that allows Google to track the user’s web movement;†it also retains information indefinitely with no expungement option;
– it doesn’t follow OECD Privacy Guidelines and EU data protection law provisions;
– users have no option to edit or delete obtained records and information about them; and
– they can’t access log information generated through various Google services, such as Google Maps, Video, Talk, Reader, or Blogger.
In 2004, Google also acquired the CIA-linked company Keyhole, Inc., that has a worldwide 3-D spy-in-the-sky images database. Its software provides a virtual fly-over and zoom-in capability to within a one-foot resolution. It’s supported by In-Q-Tel, a venture capital CIA-funded firm that “identif(ies) and invest(s) in companies developing cutting-edge information technologies that serve United States national security interests.â€
In 2003, its CEO, John Hanke, said: “Keyhole’s strategic relationship with In-Q-Tel means that the Intelligence Community can now benefit from the massive scalability and high performance of the Keyhole enterprise solution.â€
In 2006, former CIA clandestine services case officer, Robert Steele, said:
On April 29, Willem Buiter’s Maverecon site headlined “Gagging on Google†and said:
This company should be rigorously regulated, “and if necessary, broken up or put out of business.†With about half the global internet search market, it threatens enhanced “corporate or even official Big Brotherism.â€
For example, Google Street View, an addition to Google Maps, “provides panoram(ic) images visible from street level in cities around the world. The cameras record details of residents’ lives†on all sorts of personal matters that no one should be able to snoop on, then save, without permission, for whatever purposes.
The company also invades our privacy through tracking cookies or “third-party persistent cookies†to assist interest-based advertising, a practice known as behavioral targeting. In the wrong hands, this information can be used “to put a commercial squeeze on people, but also to extort and blackmail them.†And in government hands, it enhances “a pretty effective and very nasty police state.â€
Can Google be trusted to use this information responsibly? “Of course not.†It’s a business run by “amoral capitalists,†out to make as much money as possible by any means necessary. Google and other Internet search engines “should not be trusted because they cannot be trusted.†However, because of its size and dominance, Google is “the new evil empire of the internet,†a “Leviathan†that must be tamed.
Cybersecurity Legislation
On April 1, two bills endangering a free and open Internet were introduced in the Senate:
– S. 773: Cybersecurity Act of 2009 “to ensure the continued free flow of commerce within the United States and with its global trading partners through secure cyber communications, to provide for the continued development and exploitation of the Internet and intranet communications for such purposes, to provide for the development of a cadre of information technology specialists to improve and maintain effective cybersecurity defenses against disruption, and for other purposes.â€
S. 773 was then referred to the Commerce, Science, and Transportation Committee and thus far not voted on.
– S. 778: A bill to establish, within the Executive Office of the President, the Office of National Cybersecurity Advisor (aka czar). The bill was referred to the Homeland Security and Governmental Affairs Committee and not yet voted on.
Accompanying information said Senators Jay Rockefeller and Olympia Snowe introduced the legislation to address:
“our country’s unacceptable vulnerability to massive cyber crime, global cyber espionage, and cyber attacks that could cripple our critical infrastructure.â€
We presently face cyber espionage threats, they said, as well as “another great vulnerability… to our private sector critical infrastructure — banking, utilities, air/rail/auto traffic control, telecommunications — from disruptive cyber attacks that could literally shut down our way of life.â€
“This proposed legislation will bring new high-level governmental attention to develop a fully integrated, thoroughly coordinated, public-private partnership to our cyber security efforts in the 21st century†through what’s unstated — government affecting our private lives by threatening the viability of a free and open Internet.
During a March Senate Commerce, Science and Transportation Committee hearing, Senator Rockefeller said that we’d all be better off if the Internet was never invented. His precise words were: “Would it have been better if we’d never have invented the Internet and had to use paper and pencil or whatever!†Left unsaid was that without a free and open Internet, few alternatives for getting real news and information would exist, at least with the ease and free accessibility that computers can provide.
The Electronic Frontier Foundation’s Jennifer Granick expressed alarm about the risk of “giving the federal government unprecedented power over the Internet without necessarily improving security in the ways that matter most. (These bills) should be opposed or radically amended.â€
Here’s what they’ll do:
In other words, the Commerce Department will be empowered to access “all relevant data†– without privacy safeguards or judicial review. As a result, constitutionally protected private information statutory protections will be lost — guaranteed under the Electronic Communications Privacy Act, the Privacy Protection Act, and financial privacy regulations.
Another provision mandates a feasibility study for an identity management and authentication program that would sidestep “appropriate civil liberties and privacy protections.â€
At issue is what role should the federal government play in cybersecurity? How much power should it have? Can it dismiss constitutional protections, and what, in fact, can enhance cybersecurity without endangering our freedoms? S. 773 and 778, as now written, “make matters worse by weakening existing privacy safeguards (without) address(ing) the real problems of security.â€
In late February, Director of National Intelligence, Admiral Dennis Blair, told the House Intelligence Committee that the NSA, not DHS, should be in charge of cybersecurity even though it has a “trust handicap†to overcome because of its illegal spying:
“I think there is a great deal of distrust of the National Security Agency and the intelligence community in general playing a role outside of the very narrowly circumscribed role because of some of the history of the FISA issue in years past…†So Blair asked the committee’s leadership to find a way to instill public confidence.
On February 9, Obama appointed Melissa Hathaway to be Acting Senior Director for Cyberspace for the National Security and Homeland Security Councils in charge of a 60-day interagency cybersecurity review, now completed.
On April 21, NSA/Chief Central Security Service director, General Alexander, told RSA Conference security participants that “The NSA does not want to run cybersecurity for the government. We need partnerships with others. The DHS has a big part, you do, and our partners in academia. It’s one network and we all have to work together…. The NSA can offer technology assistance to team members. That’s our role.â€
But someone has to be in charge. It may or may not be NSA, but no matter. At issue is our constitutional freedoms. Any infringement on them must be challenged and stopped.
Stephen Lendman lives in Chicago. Contact him at: lendmanstephen@sbcglobal.net. Also visit his blog site and listen to The Global Research News Hour on RepublicBroadcasting.org Mondays from 11AM-1PM US Central time for cutting-edge discussions with distinguished guests.
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