, in which Charles Benton, Frank M. Blythe, Peggy Charren, Frank H. Cruz, Richard Masur, Newton N. Minow, Gigi B. Sohn, and Karen Peltz Strauss join
I agree with the report and recommendations of the Advisory Committee and write separately to emphasize two points. The first is that one of the central goals of the system of broadcasting, private as well as public, should be to promote the American aspiration to a deliberative democracy -- a system in which citizens are informed about public issues and able to make judgments on the basis of reason. Thus broadcasting is no ordinary commodity, to be governed by the usual operation of the marketplace. Contrary to the suggestion of a former Chairman of the Federal Communications Commission, television is not "just another appliance," nor is it a "toaster with pictures."
The second point is that in order to promote the goals of a deliberative democracy, government should rely whenever possible on the least intrusive means, by fostering disclosure of information and voluntary self-regulation, and by using economic incentives.
Flexible Instruments
The Committee's recommendations are entirely consistent with the suggestion that Government should prefer, as its instruments of choice, (1) information, (2) voluntary self-regulation, and (3) economic incentives, as opposed to (4) more rigid Government controls. This approach is part and parcel of a quite general and highly salutary trend in Government regulation.(1)
Disclosure. As the Committee suggests, it would be especially desirable for every broadcaster to make public the full range of public interest and public service activities in which it engages every year. Every licensee should tell the public what it is doing. In the environmental area, disclosure requirements of this kind have done a great deal of good.(2) One virtue of such requirements is that they are relatively inexpensive, for the Government and for broadcasters alike. Another virtue is that they can enlist moral norms, public pressures, and social conscience on behalf of the public interest. I hope that the FCC will take prompt steps to implement them.
"Pay or play." It would be highly desirable for government to experiment with "pay or play" approaches in which broadcasters have an obligation to provide public service programming but can buy their way out by paying someone to provide that programming instead. Such approaches have also had considerable success in the environmental area, despite reservations very similar to those being expressed here; those reservations have generally been shown to be unconvincing.(3) Just as pollution is a kind of social "bad," public interest programming is a kind of social "good," and those who provide such a good should be better rather than worse off economically. A system in which those who do not provide public interest programming must pay a kind of "fee" is far more flexible than one in which the Government imposes uniform obligations on everyone.(4)
The Public Interest and What the Audience "Wants"
Ours is a deliberative democracy, which aspires to a degree of reflection and deliberation, not merely to the expression of "preferences." Regulation of television should be undertaken with this aspiration firmly in view. In a deliberative democracy, there is a large difference between the public interest and what interests the public. The case for complete or near-complete deregulation, though pressed seriously before this Advisory Committee on constitutional and other grounds, has not been made out. There are five points here.
First: It is not the case that broadcasters are now engaged, in a systematic or scientific way, in catering to public tastes. There is a good deal of simple imitation, as networks provide a certain kind of programming simply by imitating whatever other networks are doing.(5) This imitative behavior actually creates a kind of homegeneity and uniformity, and thus makes for problems in terms of providing what viewers "want."(6)
Second: Television is not an ordinary product. When an ordinary producer gives consumers what they "want," this is because of the system of supply and demand, in which consumers pay a price, determined by the market, for a good that the producer supplies. But viewers do not pay a price, market or otherwise, for television. On the contrary, it is more accurate to say that viewers are a commodity, or a product, that broadcasters deliver to the people who pay them: advertisers. This phenomenon introduces some serious distortions. Advertisers have issues and agendas of their own, and the interests of advertisers can push broadcasters in, or away from, directions that viewers, or substantial numbers of them, would actually like. This is a substantial difference from the ordinary marketplace, one that can justify a governmental response. (7)
Third: The public's "tastes," with respect to television programming, do not come from nature or from the sky; they are partly a product of current and recent practices by broadcasters and other programmers. What people want, in short, is partly a product of what they are accustomed to seeing. It is also a product of existing social norms, which can change over time, and which are themselves responsive to existing fare. In an era in which broadcasters are providing a good deal of public interest programming, dealing with serious issues in a serious way, many members of the public will cultivate a taste for that kind of programming. In an era in which broadcasters are carrying sensationalistic or violent material, members of the public may well cultivate a taste for more of the same. "Just as culture affects preferences, so also do markets influence culture."(8)
Fourth: There is a difference between what people want as viewers (or consumers of broadcasting) and what they want as citizens. A democratic public, engaged in deliberation about the world of telecommunications, may legitimately seek regulations embodying aspirations that diverge from their consumption choices. When participants in democracy attempt to make things better, and do not simply track their consumption choices, it is not helpful to disparage their efforts as "paternalism" or as "meddling." Consumers should not be confused with citizens; this is a form of democracy in action." (9)
Fifth: Individual choices by individual viewers may not produce an optimal level of public interest programming in light of the fact that the benefits of such programming are often enjoyed by third parties, and not fully "internalized" by individual viewers. For example, a culture in which each person sees a degree of serious programming is likely to lead to better political judgments; media portrayals of violence can produce harm to others; more knowledge on the part of one person often leads to more knowledge on the part of others with whom he interacts.(10) Perhaps most important, serious attention to public issues can lead to improved governance, through deterring abuses and encouraging governmental responses to social problems. In these various ways public interest programming can produce social benefits that will not be adequately captured by the individual choices of individual citizens.(11)
Sound-Bite Democracy, Sensationalism, and Competitive Pressures
No one should deny that there has been a great deal of wonderful, public-spirited programming in the United States. Moreover -- and notwithstanding the qualifications described above -- competitive pressures can do a great deal in providing programming that people would like to see. But competitive pressures also have a downside. They can lead to sensationalistic, prurient, or violent programming, and to a failure to provide sufficient attention to educational values, or to the kind of programming that is indispensable to a well-functioning deliberative democracy.(12) Thus I accept the suggestion that "[I]ncreasingly impoverished political debate is yet another cost of our current cultural trajectory. Complex modern societies generate complex economic and social problems, and the task of choosing the best course is difficult under the best of circumstances. And yet, as in-depth analysis and commentary give way to sound bites in which rival journalists and politicians mercilessly ravage one another, we become an increasingly ill-informed and ill-tempered electorate."(13) The idea of a voluntary "code" of good programming is specifically designed to respond to the problems that can be introduced by market pressures. Many journalists in the world of broadcasting would very much like to do better; competitive pressures are the problem, not the solution, and a voluntary code could help them and the public as well.
The Need for More Facts
Any system of regulation should contain built-in mechanisms for obtaining more information. Reasonable people may and do debate how much good would be done by (for example) having more educational programming on television and more public affairs broadcasting on each television station, at least if these come from uniform Federal mandates. Above all, there are important factual issues. How many children would watch compulsory educational programming? More particularly, how many more children would see good programming as a result of such programming? How many children would in any case be watching good programming, on, for example, "Nickelodeon"? There are similar questions about public affairs broadcasting. If the broadcasters provided free airtime for political candidates, how many people would watch? And what kind of programming would be provided on that free airtime? The National Association of Broadcasters (NAB) has compiled information about existing public service activities, and it should certainly be commended for doing that. But the NAB study is based on extrapolations from a far from overwhelming response rate -- merely 60 percent -- and also on self-reporting, in response to a request for information from the NAB. As a result, the data may not be reliable. What the NAB has done is a commendable start toward a serious, sustained, and continuing public accounting.
Constitutional Law
In the course of our deliberations, some people have suggested that any regulation of broadcasting, or at least any "content" regulation of broadcasting, would violate the First Amendment to the United States Constitution. I do not believe that this is the correct reading of the First Amendment, and although this is not the occasion for an extended analysis of constitutional law, a few brief notes may be helpful.
It is true that the Government must tread cautiously whenever it purports to favor one kind of programming over another.(14) It is also true that the government can rarely, if ever, favor one viewpoint over another.(15 ) But the First Amendment does not enact a system of economic laissez-faire, any more than the due process clause enacts Herbert Spencer's Social Statics.(16) On the contrary, the First Amendment has, as one of its central goals, the creation of a system of deliberative democracy. Because this is one of the central goals of the First Amendment, content-based regulation that promotes democracy, in a way that favors no particular point of view, does not offend constitutional principles. (This was the central suggestion in Red Lion v. FCC,(17) and on this point Red Lion has not been overruled or even drawn into serious question.) Indeed, certain forms of regulation -- producing more educational programming and more concern with public issues -- are best understood as promoting, not undermining, First Amendment goals.(18) A system of economic laissez-faire may well compromise those democratic goals, or at least Congress, or the FCC, may reasonably conclude it does so. The recommendations of the Advisory Committee are in accord with the highest aspirations of our First Amendment tradition.
Additional Recommendations
Although I agree with the recommendations of the report, they seem to me to be too tepid in a few places. Even with a strong presumption against command-and-control regulation, I would tentatively favor two additional obligations.
The first is a requirement that in an election year, each broadcaster should offer a specific amount of free airtime to candidates (say, 3 hours), perhaps with a "pay instead of play" option for some or all of that time. The second is to give serious thought to the following simple idea: During every presidential election, a certain specific period should be set aside for nationally televised debates, to be offered to the serious presidential candidates by all of the major networks, at the same time and for free. There has been a considerable level of voluntary activity in this direction, with specified hours (usually 4) being devoted to presidential and vice-presidential debates; what I am suggesting is that there should be a general understanding that this kind of arrangement will continue, even if there is no profit in it. It would of course be far better if this were done voluntarily and not by mandate; but I would not exclude the possibility of a mandate, to reaffirm the importance of the right of democratic self-government. It is not -- I suggest -- too much to expect American broadcasters to set aside a specified period (say, 4 hours) during each presidential election year, even if doing so is relatively expensive. This proposal is on the basic model of a national holiday, understood here not as a vacation but as a kind of civic obligation—designed to underscore the importance of democratic self-government, and to ensure a kind of celebration of that basic commitment.
Endnotes
1) It is impossible to avoid Government regulation. A system of so-called "laissez-faire" amounts to the Government creation of property rights and governmentally conferred rights of exclusion. There is no avoiding Government regulation. (This is why the term "deregulation" is a misnomer.) The only question is what system of regulation makes best sense and does the most good.
2) See James Hamilton, CHANNELING VIOLENCE (1998).
3) See Robert Stavins, What Can We Learn From the Grand Policy Experiment? Lessons from SO2 Allowance Trading, 12 J. ECON. PERSP. 69 (1998).
4) Some members of the Advisory Committee appear to believe that public interest responsibilities are simply part of the public trust and that broadcasters should not be permitted to "buy their way" out of those obligations. With all respect, I believe that this is largely a bit of rhetoric. What if a broadcaster was willing to give $10 million to PBS in return for every minute, or every 30 seconds, of relief from a public interest responsibility? Would the Nation not be better off as a result? Of course, it may make sense to impose certain minimal duties on everyone, and of course any "play or pay" system must be carefully administered to ensure that American viewers do receive a large amount of public interest programming. But these are matters of relative detail, and could be handled by good administration.
5) See Sushil Bikchandani et al., Learning from the Behavior of Others, 12 J. ECON. PERSP. 151, 164 (1998); Robert E. Kennedy, Strategy Fads and Competitive Convergence: An Empirical Test for Herd Behavior in Prime-Time Television Broadcasting (Harvard Business School, January 1998). 6) See id.
7) See C. EDWIN BAKER, ADVERTISING AND A DEMOCRATIC PRESS (1994).
8) ROBERT FRANK & PHILIP COOK, THE WINNER-TAKE-ALL SOCIETY 201 (1995).
9) See C. Edwin Baker, Giving the Audience What It Wants, 58 OHIO STATE L. J. 311 (1997).
10) See BAKER, supra note 7, at 350-367.
11) See id. at 355-56; see also HAMILTON, supra note 2.
12) See HAMILTON, supra note 2.
13) See FRANK, supra note 8, at 203.
14) See, e.g., Metromedia, Inc. v. San Diego, 453 U.S. 490 (1981).
15) See, RAV v. St. Paul, 505 U.S. 377 (1992).
16) See, Lochner v. New York, 198 U.S. 45, 61 (1905) (Holmes, J., dissenting).
17) 395 U.S. 367 (1969).
18) See, Turner Broad. Sys. v. FCC, 512 U.S. 622 (1994); Turner Broad Sys, Inc., v. FCC, 117 S. Ct.
1174 (1997), and Justice Breyer's concurring opinion, id. at 1186.