REGULATION OF MEDIA IN THE UNITED STATES:

A PROPOSAL FOR A TWO-TIER SYSTEM

By Matthew Zagaja
A Brief History of News Media in the United States

Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof; or abridging the freedom of speech, or
of the press1 This principle penned by our founding fathers was written in
an era when the news media looked different from today. In 1787 the
delegates to the Constitutional Convention had never watched a television,
listened to a radio, or booted a computer. Yet the founding fathers would
probably see similarity between the blogs today and the newspapers they
read. At the time the nation was founded conditions were not favorable for
newspapers. They were not widely circulated, readership was often less than
1,000, subscribers were tardy in payment, and advertisements were not
plentiful.2 Although the newspapers were free to print what they wanted in
practice, they were still subject to the laws of libel.3
In spite of these obstacles newspapers played an important role during the
birth of our nation. Preceding the Constitutional Convention in Philadelphia
Hamilton, Madison, and Jay published the Federalist Papers in two
newspapers: The Independent Journal and The Daily Advertiser. From these
sources they were copied into nearly every paper in America; as the bloggers
would say: it went viral.4 Like many blogs of today these newspapers were
not independent entities that followed journalistic standards. They were
partisan organs with their own agendas and points of view.5 Individuals were
1 U.S. CONST amend. I.
2 Adolphus William Ward, The Pennsylvania Packet The First Daily
Newspaper, in 16 THE CAMBRIDGE HISTORY OF ENGLISH AND AMERICAN LITERATURE
18 VOLUMES 21.2 (190721), available at
http://www.bartleby.com/226/1202.html.
3 Id.
4 Id at 21.5.
5 Id at 21.6.

IN

aware of the biases and not afraid to criticize them.6 The response to these
journalistic failings was the same response that many proponents of the free
market and First Amendment support today: more speech.7
In 1798 America was on the verge of war with France. Federalists believed
that criticism of government was disloyal and as a result they passed the
Alien and Sedition Acts.8 These laws lead to the prosecution of editors of
Democratic-Republican newspapers. One editor included Benjamin Franklins
grandson, Benjamin Franklin Bache, who edited the Philadelphia DemocratRepublican Aurora.9 The Democratic-Republicans, including Thomas
Jefferson, argued that these laws were unconstitutional.10 These events lead
to Jefferson defeating Adams in a bid for the Presidency and the Federalist
Party disappeared. After his victory Jefferson pardoned everyone that was
convicted under the acts.11 Fifty years later Congress declared them
unconstitutional and the Supreme Court has shared that sentiment.12
The freewheeling partisan press continued unabated. However around 1896
a man by the name of Adolph Ochs believed that the American public wanted
a paper that held itself to a higher standard. After he purchased the New
York Times he decided to raise its price to a nickel He believed that people
would pay more money for a paper that was of higher quality.13 Standards
6 Id (In describing The Gazette of the United States Thomas Jefferson called
it a paper of pure Toryism; disseminating the doctrines of

monarchy, aristocracy, and the exclusion of the people.).

7 See id.
8 Alien and Sedition Acts (1798), OURDOCUMENTS.GOV,
http://www.ourdocuments.gov/doc.php?flash=true&doc=16.
9 The Alien and Sedition Acts of 1798, ARCHIVING EARLY AMERICA,
http://www.earlyamerica.com/earlyamerica/milestones/sedition/.
10 Lawrence Lessig, The Alien and Sedition Acts of 1798, LESSIG 2.0,
http://www.lessig.org/blog/2004/12/the_alien_and_sedition_acts_of.html.
11 Id.
12 New York Times Co. v. Sullivan, 376 U.S. 254 (Although the Sedition Act
was never tested in this Court, the attack upon its validity has carried the
day in the court of history.).
13 Adolph Ochs, JEWISH VIRTUAL LIBRARY,
http://www.jewishvirtuallibrary.org/jsource/biography/ochs.html.

that Ochs set included not just accuracy in reporting but also a refusal to
accept advertisers that he believed would impact the quality of the paper.
Ochs won his gamble and the circulation of the times grew from 9,000
readers in 1986 to 780,000 readers during the 1920s.14 Even the critics of
the paper conceded that they relied on it for accurate accounts of events,
laws, speeches, and objectivity in their reporting.15
Today media provides a full spectrum of quality, ethics, mediums and
popularity. The New York Times lives on in both a paper and online form.16
News organizations like The New York Times and National Public Radio have
developed codes of ethics that they post on their websites.17 Other news
organizations do not seem to follow codes of ethics. For example the National
Enquirer has published material that is false, defamatory, or would constitute
an invasion of privacy.18 There has also been a rise of new media
organizations including Gawker and The Huffington Post that sit somewhere
in between.
Most notable and controversial among the new media outlets is Wikileaks.
Spearheaded by Julian Assange the organization has released data dumps in
an incident known as Cablegate.19 Assange and the Wikileaks organization
occupy a grey area between acting as a source of information for the

14 Id.
15 Id.
16 Interestingly the New York Times is once again gambling that people are
willing to pay for quality reporting with the institution of its pay wall.
17 The New York Times Company Policy on Ethics in Journalism, NEW YORK
TIMES CO., http://www.nytco.com/press/ethics.html; Ethics Code, NPR,
http://www.npr.org/about/aboutnpr/ethics/ethics_code.html.
18 See Damages for Hudson Over Pictures, BBC NEWS,
http://news.bbc.co.uk/2/hi/entertainment/5198208.stm; see also Wendy
Tannenbaum, Gary Condit and National Enquirer Settle Suit, REPORTERS
COMMITTEE FOR FREEDOM OF THE PRESS,
http://www.rcfp.org/news/2003/0711condit.html.
19 See Scott Shane, Leaked Cables Offer Raw Look at U.S. Diplomacy, N.Y.
TIMES, http://www.nytimes.com/2010/11/29/world/29cables.html.

mainstream press and also in acting as a press organization itself.20 Wikileaks

poses unique ethical and legal problems that lack effective remedy today.21
Current Restrictions on Speech in the United States

The protections of the First Amendment in the United States are construed
broadly. This is most evident in the jurisprudence surrounding prior
restraints. A prior restraint is an order by a court barring parties from
speaking. The Supreme Court has ruled that any system of prior restraints of
expression bears a heavy presumption against their constitutional validity.22
Most famously the Supreme Court declined to grant a restraining order
against the New York Times publication of the Pentagon Papers.23 This
position reflects an attitude favoring open dialogue over closed discussion,
even when there are sensitive topics in play. It also reflects the fact that once
someone has the information it is difficult to put the proverbial cat back in
the bag.
Libel and defamation is one category of speech that is not completely
protected under the First Amendment. Current jurisprudence allows for
nearly unlimited comment upon the activities of public officials or public
figures. The Supreme Court has ruled that in order to sue for libel or
defamation a public official or figure must demonstrate actual malice.24
Actual malice refers to publication of a statement that is made with
knowledge it is false or with reckless disregard of whether it was false or
not.25 Under this standard the majority of libel suits brought in the United
20 Books Describes Working with Wikileaks Assange, NPR,
http://www.npr.org/2011/02/08/133583959/Guardian-Editor-DescribesWorking-With-WikiLeaks-Assange.
21 See Evan Brown, Wikileaks, decentralized distribution, and the lack of
meaningful remedies for unauthorized disclosure, INTERNET CASES,
http://blog.internetcases.com/2010/12/09/wikileaks-decentralizeddistribution-and-the-lack-of-meaningful-remedies-for-unauthorizeddisclosure/.
22 Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963).
23 New York Times Co. v. United States, 403 U.S. 713 (1971).
24 New York Times v. Sullivan, 376 U.S. 254 (1964).
25 Id at 280.

States have been dismissed.26 On the other end private figures have lower
hurdles to clear depending on the jurisdiction they are suing in.27
The First Amendment also does not protect words that are considered
fighting words.28 The Supreme Court gave the following rationale for not
protecting this class of speech:
There are certain well-defined and narrowly limited classes of
speech, the prevention and punishment of which have never
been thought to raise any constitutional problem. These include
the lewd and obscene, the profane, the libelous, and the insulting
or "fighting" words those which by their very utterance inflict
injury or tend to incite an immediate breach of the peace. It has
been well observed that such utterances are no essential part of
any exposition of ideas, and are of such slight social value as a
step to truth that any benefit that may be derived from them is
clearly outweighed by the social interest in order and morality.29
Obscenity is also not protected by the First Amendment.30 Thus state or
federal statute may constitutionally regulate obscene material such as child
pornography31 or dirty words.32 The Supreme Court established the following
standard for determining whether what is regulated is obscene:

26 See Floyd Abrams, The Supreme Court Turns a New Page in Libel, ABA
JOURNAL, August 1984, at 89, available at http://books.google.com/books?
id=wR9w491aW5sC&lpg=PA89&ots=NfPLAKdBSi&dq=public%20figures
%20prevail%20in%20libel&pg=PA89#v=onepage&q=public%20figures
%20prevail%20in%20libel&f=false.
27 See Gertz v. Welch, 418 U.S. 323 (1974).
28 See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); see also
Brandenburg v. Ohio 395 U.S. 444 (1969) (holding that government cannot
punish inflammatory speech unless it is directed to inciting and likely to
incite imminent lawless action).
29 Chaplinsky at 315 U.S. at 57172.
30 Roth v. United States, 354 U.S. 476 (1957).
31 New York v. Ferber, 458 U.S. 747 (1982).
32 See FCC v. Pacifica, 438 U.S. 726 (1978).

(a)

whether

"the

average

person,

applying

contemporary

community standards" would find that the work, taken as a

whole, appeals to the prurient interest, Kois v. Wisconsin, supra,
at 230, quoting Roth v. United States, supra, at 489; (b) whether
the work depicts or describes, in a patently offensive way, sexual
conduct specifically defined by the applicable state law; and (c)
whether the work, taken as a whole, lacks serious literary,
artistic, political, or scientific value.33
This standard is applied by the trier of fact. The Court focused mainly on
material relating to sex as being obscene and left it to the circuit courts to
conduct review on this question.34 Jurisprudence in this area is thus a bit
more flexible and also more subjective than the bright line standards
established elsewhere in First Amendment law.
There is also protection provided for personal privacy. This has been
developed in tort law and is broken down into the following torts:
1. Intrusion upon the plaintiffs seclusion or solitude, or into his private
affairs
2. Public disclosure of embarrassing private facts about the plaintiff.
3. Publicity which places the plaintiff in a false light in the public eye.
4. Appropriation, for the defendants advantage, of the plaintiffs name or
likeness.35
In order to recover damages for an invasion of privacy under the first two
torts the plaintiff must prove that the private facts that are publicized would
make a reasonable person deeply offended by the publicity and that there is
no legitimate public interest in them.36 When it impacts celebrities this public
interest has been construed broadly. For example a court found that there
was a public interest in Pamela Andersons sex tape.37 In order to recover for
33 Miller v. California, 413 U.S. 15,245 (1973).
34 Id.
35 William Prosser, Privacy, 48 CAL. L. REV. 383, 389 (1960).
36 Haynes v. Knopf, 8 F.3d 1222,1232 (1993).
37 Michaels v. Internet Entertainment Group, 5 F.Supp.2d 823 (C.D. Cal.
1998).

a false light invasion of privacy claim a plaintiff must show that there was a
publication by the defendant about the plaintiff, made with actual malice
(similar to New York Times v. Sullivan) that places the plaintiff in a false light
and would be highly offensive to a reasonable person.38 The last tort has less
to do with privacy and more to do with a property interest in a persons
likeness. Many states have adopted a right to publicity that allows celebrities
or other individuals to recover damages if their likeness is appropriated for a
commercial purpose.39 However this right is generally not enforced in the
context of news or journalism.40
The examples of regulation above demonstrate that the courts do not
believe that speech as embodied in the First Amendment is like the Wild
West. However the amount of freedom that media is granted in their speech
is greater than other countries.41 The courts and the American people are not
completely closed to the idea of regulating media speech, but the media has
resisted and been harshly critical of efforts in the United States and abroad
to censor it.42 Furthermore the volume of sales of tabloids and the amount of
visitors to websites like TMZ.com indicate that there is huge demand for

38 Cain v. Hearst, 878 S.W.2d 577 (Tex. 1994).

39 See White v. Samsung Electronics, 989 F.2d 1512 (9th Circ. 1993); see also
Douglas E. Mirell, Right-of-Publicity Statutes, COMMUNICATIONS LAWYER, Sept.
2010, at 15.
40 See Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400, 409
(2001) (holding the right must be balanced against the public interest in
dissemination of news and information consistent with the democratic
processes under the constitutional guarantees of freedom of speech and the
press.).
41 See James Robinson, How Super-Injunctions are Used to Gag Investigative
Reporting, THE GUARDIAN, http://www.guardian.co.uk/uk/2009/oct/13/superinjunctions-guardian-carter-ruck; see also Michael Gillard, Libel Tourists Flock
to Easy U.K. Courts, THE SUNDAY TIMES,
http://www.timesonline.co.uk/tol/news/uk/article6898172.ece.
42 See New York Times Co. v. United States, 403 U.S. 713 (1971); see also
Ravi Saimoya, British Law Used to Shush Scandal Has Become One, N.Y.
Times, http://www.nytimes.com/2011/04/27/world/europe/27britain.html.

celebrity gossip, even if it might constitute an invasion of privacy or be

defamatory in some manner.43

43 See Daniel Gross, Tabloid Shocker, SLATE,

http://www.slate.com/id/2137277/.

Campaign Speech Regulation A Different Reaction

The American public has had a markedly different reaction to the regulation
of speech in relation to elections. In late 2010 the Supreme Court decided
Citizens United v. FEC44 holding that corporate funding of political broadcasts
cannot be limited due to the First Amendment. Good government groups like
Common Cause were quick to denounce it45 and President Obama
condemned the decision in his 2010 State of the Union Address.46 The New
York Times has frequently editorialized in favor of greater restrictions on
corporate speech.47 Finally an ABC News poll found that 80% of the American
public opposes the Citizens United ruling.48
Most campaign regulation involves the monetary side of the campaigns.
There is disagreement as to whether money constitutes speech and whether
corporations are people.49 However there are also regulations that impact the
actual speech of the campaigns as well. For example the Bipartisan
Campaign Reform Act requires candidates to make a statement approving
their advertisements at the beginning or end of them.50 Furthermore a
majority of states have laws that require written electioneering

44 558 U.S. 50 (2010)

45 Fight Citizens United with Fair Elections, COMMON CAUSE,
http://www.commoncause.org/site/pp.asp?c=dkLNK1MQIwG&b=5771765.
46 Barack Obama, Remarks by President in State of the Union Address, THE
WHITE HOUSE, http://www.whitehouse.gov/the-press-office/remarks-presidentstate-union-address.
47 See Democrats Seduced by Secret Dollars, N.Y. Times,
http://www.nytimes.com/2011/05/08/opinion/08sun1.html.
48 Greg Langer, In Supreme Court Ruling on Campaign Finance, the Public
Dissents, ABC NEWS, http://blogs.abcnews.com/thenumbers/2010/02/insupreme-court-ruling-on-campaign-finance-the-public-dissents.html.
49 See Bernard Shaw, Is Money Equal to Free Speech, CNN,
http://www.cnn.com/ALLPOLITICS/1997/gen/resources/moneytrail/speech/.
50 Bipartisan Campaign Reform Act of 2002, 2 U.S.C. 441(i) (Supp. III
2003).

communications to identify the speaker, and these have been upheld as

constitutional.51
In order to remedy the problems of a post Citizens United world many
politicians have embraced the idea of using carrots to encourage
corporations and candidates to comply with more restrictive rules. For
example Maine, Arizona, and Connecticut all have public financing programs
that offer candidates money if they agree to accept smaller donations and
other restrictions on their campaign activities.52 There have been proposals
to implement similar legislation on a federal level with varying levels of
support.53 Most recently President Obama is considering signing an executive
order to require federal contractors to disclose their political donations.54
The Popularity of Regulating Commercial Speech

The American public and legislators also appear comfortable with the
regulation of commercial speech. This comfort was at its apex when
Congress passed legislation creating a national do-not-call list in 2007.
Telemarketers were quick to challenge the legislation but the 10th Circuit
Court of Appeals upheld its constitutionality.55 The popularity of this
legislation is most evident through the fact that 72% of Americans have
registered for the list.56
51 See Electioneering Communications, FEDERAL ELECTIONS COMMISSION,
http://www.fec.gov/pages/brochures/electioneering.shtml.
52 See Matthew Zagaja, ANALYSIS OF THE CONNECTICUT CITIZENS ELECTION
PROGRAM, 1219 (2009), available at http://www.wpi.edu/Pubs/Eproject/Available/E-project-030609-141110/unrestricted/MQP_CT_CEP.pdf.
53 Durbin, Larson Introduce Fair Elections Now Act, OFFICE OF CONGRESSMAN
JOHN LARSON, http://www.larson.house.gov/index.php?
option=com_content&task=view&id=1269&Itemid=99.
54 Nicholas Johnston, Obama May Require Contractors to Disclose Political
Donations, BLOOMBERG, http://www.bloomberg.com/news/2011-04-20/obamamay-require-government-contractors-to-disclose-political-donations.html.
55 FTC v. Mainstream Marketing Services, Inc., 345 F.3d 850 (10th Circ.
2003).
56 Susan Gindin, FTC Issues Long-Awaited Privacy Report And Provides
Opportunity for Comment, ISACCSON ROSENBAUM, http://www.ir-law.com/705.

Furthermore the Federal Trade Commission Act regulates the content of

commercial advertisements. Under the act advertising must be truthful, not
deceptive, advertisers must have evidence to back-up their claims, and
advertisers cannot be unfair.57 The rationale behind these regulations is that
the speech is designed to induce people to engage in commercial
transactions and therefore is entitled to less protection.58 The widespread
adoption of these consumer protection laws and the support that the public
has had for their enforcement demonstrates a public appetite for regulation
of speech when it has the potential to harm them.59 Even media outlets have
editorialized in favor of these protections.60
The Fairness Doctrine, Equal Time, and Media Ownership

The Federal Communications Commission is the federal agency charged with

the regulation of radio, television, satellite, wire, and cable.61 Their
jurisdiction does not cover print media. However with the rise in popularity of
these new mediums of communication they have been able to exercise
considerable influence with the press. The Supreme Court articulated the
constitutional rationale for FCC regulation of the airwaves in the Red Lion
case:
Because of the scarcity of radio frequencies, the Government is
permitted to put restraints on licensees in favor of others whose
views should be expressed on this unique medium. But the
people as a whole retain their interest in free speech by radio
and

their

collective

right

to

have

the

medium

function

57 Federal Trade Commission Act, 15 U.S.C. 41-58.

58 For an interesting discussion about the rationale behind truth in
advertising see How is it POSSIBLE that the FCC [sic] can regulate truth in
advertising and be INCAPABLE of regulating truth in NEWS?, REDDIT,
http://www.reddit.com/r/reddit.com/comments/gd1g5/how_is_it_possible_that
_the_fcc_can_regulate/.
59 See N.Y. ISC. Law 2401-2409.
60 See Truth in Advertising, Offline or Online, N.Y. TIMES,
http://www.nytimes.com/2009/10/13/opinion/13tue2.html.
61 About the FCC, FEDERAL COMMUNICATIONS COMMISSION,
http://www.fcc.gov/aboutus.html.

consistently with the ends and purposes of the First Amendment.

It is the right of the viewers and listeners, not the right of the
broadcasters, which is paramount. [] It is the right of the public
to receive suitable access to social, political, esthetic, moral, and
other ideas and experiences which is crucial here. That right may
not constitutionally be abridged either by Congress or by the
FCC.62
Red Lion was a challenge to the FCC regulations known as the Fairness
Doctrine. The Fairness Doctrine was adopted in 1949 and required
broadcasters to devote some airtime to matters of public interest and further
required the broadcasters to air contrasting views on these topics.63 The
doctrine allowed public interest groups like the American Civil Liberties Union
and National Rifle Association to extend the public debate on issues.64
Stations were not required to modify the content of their programming; they
would often set aside a slot of time for an on-air response by those
supporting the omitted perspective in a similar time and place as the original
report.65 The FCC repealed this doctrine in 1987.66 However many democrats
have declared support for reintroduction of the Fairness doctrine.67
Republican and libertarian groups remain opposed and a Rasmussen poll
suggests that the public is about evenly divided on support for this issue.68

62 Red Lion Broadcasting v. FCC, 395 US 367,389-90 (1969).

63 Steve Rendall, The Fairness Doctrine, COMMONDREAMS.ORG,
http://www.commondreams.org/views05/0212-03.htm.
64 Id.
65 Id.
66 See Syracuse Peace Council v. FCC, 867 F. 2d 654 (D.C. 1989).
67 See John Eggerton, Kerry Wants Fairness Doctrine Reimposed,
BROADCASTING & CABLE, http://www.broadcastingcable.com/article/109418Kerry_Wants_Fairness_Doctrine_Reimposed.php.
68 47% Favor Government Mandated Political Balance on Radio, TV,
RASMUSSEN REPORTS,
http://www.rasmussenreports.com/public_content/politics/general_politics/au
gust_2008/47_favor_government_mandated_political_balance_on_radio_tv.

There is also a rule that requires candidates for public office be given equal
time.69 The rule requires that if a station sells a minute of airtime to one
candidate it must also offer the same amount of airtime for sale to the other
candidates.70 This rule was originally implemented in the Radio Act of 1927
based on concerns that the media would attempt to manipulate elections.71
Its effectiveness has been watered down by several amendments that treat
activities like Presidential debates or press conferences as on-the-spot news
that is not subject to the doctrine.72 Also the media has been critical of the
equal time doctrine, especially when applied to actors that have become
politicians.73 Yet the rule has continued to survive, likely out of fear that
candidates could be shut out of advertising.
Finally the FCC regulates ownership of media. Originally the FCC banned
ownership of a daily newspaper and television or radio station operating in
the same local market. However in 2007 this policy was changed and now
the FCC evaluates on a case-by-case basis whether cross-ownership is in the
public interest.74 The FCC also limits a single entity from owning stations that
reach more than 39% of American television households.75 It specifically
prohibits the merger of ABC, CBS, Fox, and NBC.76 It also regulates allowed
ownership of radio stations on a sliding scale.77 Democrats have favored
media ownership restrictions while Republicans have opposed the
regulations.78
69 Equal Time Rule, 47 U.S.C. 315.
70 Equal Time Rule, MUSEUM OF BROADCAST COMMUNICATIONS,
http://www.museum.tv/eotvsection.php?entrycode=equaltimeru.
71 Id.
72 Id.
73 See Brian Lowry, Equal Time Politics Prove Absurd, VARIETY,
http://www.variety.com/article/VR1117963059?refCatId=1682.
74 FCCs Review of the Broadcast Ownership Rules, Federal Communications
Commission, http://www.fcc.gov/cgb/consumerfacts/reviewrules.html.
75 Id.
76 Id.
77 Id.
78 See David Wilkerson, FCC Votes to Relax Corss-Ownership Rule,
MARKETWATCH, http://www.marketwatch.com/story/fcc-votes-to-relax-cross-

The presence of these regulations demonstrates precedent for media

regulation that is contingent upon the receipt of benefits by the media from
the government. The Federal Communications Commission regulates the
airwaves for the benefit of the public. When they license the spectrum they
attach conditions to ensure that the public interest is being met. Although
this kind of regulation has been subject to partisan controversy, there have
been some uncontroversial points, and a substantial portion of the public
supports this kind of multi-tiered regulatory scheme. This stands in contrast
to the content based restriction of speech, especially speech that involves
political commentary, as demonstrated by the recent case involving the
Westboro Baptist Church.79
Defining the Problem

Today the media is infested with a multitude of problems that inhibit civil
public discourse, lead to a lack of respect for the dignity of individuals, and
an atmosphere that allows for commentary or untruths to pass as news
without proper scrutiny. This has been most evident during the controversy
over President Barack Obamas citizenship. Before Obama was elected
President he conclusively proved he was born in the United States.80 Yet
rumors about Obamas citizenship persisted. The press continued to report
on the birth issue and the public expressed doubt as to whether the
President was American born.81 This reached critical mass when Donald
Trump publicly took command of the issue and declared that he had people
ownership-rules (noting that the democratic appointees to the FCC opposed
relaxing the rules).
79 See Snyder v. Phelps, No. 09-751 (2010); see also American Still Oppose
Ban on Hate Speech, RASMUSSEN REPORTS,
http://www.rasmussenreports.com/public_content/lifestyle/general_lifestyle/a
pril_2011/americans_still_oppose_ban_on_hate_speech.
80 Birth Certificate, SNOPES,
http://www.snopes.com/politics/obama/birthcertificate.asp.
81 Jon Terbush, Polls Show About Half of GOPers Think Obama Wasnt Born In
U.S., TALKING POINTS MEMO,
http://tpmdc.talkingpointsmemo.com/2011/04/polls-show-about-half-ofgopers-think-obama-wasnt-born-in-us.php.

investigating it.82 President Obama was forced to confront it directly and

release a long-form birth certificate in order to quell the concerns of his
critics.83
Another criticism comes from the comedian Jon Stewart. In one hard-hitting
segment on his television program, The Daily Show, he demonstrates how
the Fox News Channel has manufactured news.84 Instead of searching for
truth the news station manages to generate controversy over stale events,
presumably to promote some kind of agenda. These kinds of manufactured
truths or issues have been given the title truthiness by Stephen Colbert, a
comedian who follows in Stewarts tradition.85
In spite of these criticisms, Fox News engenders a degree of trust from its
audience. In fact people tend to have a more favorable rating of Fox News
than the New York Times, NPR, and the Wall Street Journal.86 Yet the press
overall is not seen as being balanced or accurate.87 They have made efforts
to increase trust in them through actions like the appointment of public
editors.88 Unfortunately it seems that these private efforts have failed.

82 Maggie Haberman, Donald Trump draws Barack Obama into birther fray,
POLITICO, http://www.politico.com/news/stories/0411/53236.html.
83 Dan Pfeiffer, President Obamas Long Form Birth Certificate, THE WHITE
HOUSE, http://www.whitehouse.gov/blog/2011/04/27/president-obamas-longform-birth-certificate.
84 Stewart annihilates Fox News purported opinion-news division: Its a
perpetual revulsion machine, MEDIAMATTERS,
http://mediamatters.org/mmtv/200910290044.
85 Stephen Colbert, The Word Truthiness, THE COLBERT REPORT,
http://www.colbertnation.com/the-colbert-report-videos/24039/october-172005/the-word---truthiness.
86 Press Accuracy Rating Hits Two Decade Low, PEW RESEARCH CENTER,
http://people-press.org/2009/09/13/press-accuracy-rating-hits-two-decadelow/.
87 Id.
88 See Jennidfer Dorroh, The Ombudsman Puzzle, AMERICAN JOURNALISM
REVIEW, http://www.ajr.org/article.asp?id=3824.

This lack of trust appears to have translated into economic difficulty for the
news media as well. Newspaper and magazine circulation is declining.89 The
lack of revenue by news organizations has translated into consolidation. 90
Some argue that the Internet will save us from this lack of diversity, but that
remains to be seen.91 Therefore, in spite of the lack of trust, the remaining
news media organizations have a higher degree of influence in the public
debate.
This influence was especially evident in the events leading up to and after
the firing of Shirley Sherrod. On July 19, 2010 conservative commentator
Andrew Breitbart posted a video of Sherrod to his website making the
following commentary:
You know, the first time I was faced with helping a white farmer
save his farm, he took a long time talking but he was trying to
show me he was superior to me. I know what he was doing. But
he had come to me for help. What he didn't know, while he was
taking all that time trying to show me he was superior to me,
was I was trying to decide just how much help I was going to give
him. I was struggling with the fact that so many black people had
lost their farmland. And here I was faced with having to help a
white person save their land. So, I didn't give him the full force of
what I could do. I did enough so that when he... I assumed the
Department of Agriculture had sent him to me, either that, or the
Georgia Department of Agriculture, and he needed to go back
and report that I did try to help him. So I took him to a white
lawyer that had attended some of the training that we had
provided because Chapter 12 bankruptcy had just been enacted
89 Tim Arango, Fall in Newspaper Sales Accelerates to Pass 7%, N.Y. TIMES,
http://www.nytimes.com/2009/04/28/business/media/28paper.html.
90 For example in Connecticut the Tribune Corporation owns both the local
FOX affiliate and The Hartford Courant.
91 See Douglas Schuler, 66 Media Diversity, PUBLIC SPHERE PROJECT,
http://www.publicsphereproject.org/patterns/print-pattern.php?begin=66.

for the family farm. So I figured if I take him to one of them, that
his own kind would take care of him.
That's when it was revealed to me that it's about poor versus
those who have, and not so much about white it is about white
and black, but it's not, you know, it opened my eyes because I
took him to one of his own.92
This clip was later broadcast on Fox News and received play on television,
radio, and newspapers.93 The play that the clip received in the media
resulted in the firing of Sherrod by the Department of Agriculture. Yet further
investigation revealed the clip was taken out of context. Sherrods comments
were not as racist as they originally appeared when combined with other
comments such as:
Working with him made me see that it's really about those who
have versus those who haven't. They could be black, they could
be white, they could be Hispanic. And it made me realize then
that I needed to help poor people those who don't have access
the way others have.94
It turned out the farmers that Sherrod referred to consider her lifelong friends
and that she had discovered poverty was the key factor in rural
development.95 Eventually the NAACP retracted their condemnation of
Sherrod and The White House offered hew a new position, which she
declined.96

92 Andrew Breitbart, Video Proof: The NAACP Awards Racism2010,

BIGGOVERNMENT, http://www.webcitation.org/5rbhsjhzR.
93 Video Shows USDA Official Saying She Didnt Give Full Force to Help
Farmer, FOXNEWS.COM, http://www.webcitation.org/5rQUyfera; see also
Timeline of Breitbarts Sherrod Smear, MEDIAMATTERS,
http://mediamatters.org/research/201007220004.
94 White House Sorry for Shirley Sherrod Racism Firing, BBC NEWS,
http://www.bbc.co.uk/news/world-us-canada-10716237.
95 Id.
96 Id.

The Sherrod incident caused widespread criticism of the media for a failure
to investigate. Fox News Commentator Bill OReily personally apologized to
Sherrod on the air.97 The New York Times made the following observation
about the handling of the Sherrod story in the modern media cycle:
The controversy illustrates the influence of right-wing Web sites
like the one run by Andrew Breitbart, the blogger who initially
posted the misleading and highly edited video, which he later
said had been sent to him already edited. (Similarly, Mr. Breitbart
used edited videos to go after Acorn, the community organizing
group.) Politically charged stories often take root online before
being shared with a much wider audience on Fox. The television
coverage, in turn, puts pressure on other news media outlets to
follow up.98
The Sherrod and birther cases demonstrate the problems facing the media
today. The media reported on false facts that had real consequences. After
these incidents there was much blame to go around. However there does not
seem to have been a larger conversation of whether this kind of reporting
should stop and whether these news organizations may want to hold
themselves to a higher standard.
Under our current jurisprudence we cannot stop the Andrew Breitbarts of the
world from spreading their lies. Widespread support of free speech and the
free market approach to journalism remains the comfortable status-quo for
many. Furthermore the sales of tabloid magazines like the National Enquirer
remain part of our American economic engine. However news organizations,
the people, and the government do not need to dismantle the old system in
order to build a new and better one. By building a voluntary system of
97 Howard Kurtz, Finger-pointing at Fox in Shirley Sherrod Firing, THE
WASHINGTON POST, http://www.washingtonpost.com/wpdyn/content/article/2010/07/22/AR2010072201265.html.
98 Sheryl Stolberg, With Apology, Fired Official is Offered New Job, N.Y. TIMES,
http://www.nytimes.com/2010/07/22/us/politics/22sherrod.html.

regulation that has input from the public, government, and journalists we can
create something that raises the level of debate in this country.
Proposal for a new Regime

In order to solve these problems I propose that the press, government, and
people institute a professionalized press commission. In order to remain
compatible with current First Amendment jurisprudence this professional
press commission will be a voluntary organization that is supported and
sponsored by the United States government. Like public financing for
elections the professional press commission will be a voluntary endeavor on
the part of the press. The government will offer a series of carrots in order to
encourage membership among media outlets. In exchange for the benefits
that the government offers, they will require the press to adhere to certain
standards and practices.
General Principles of the Organization

The commission can be modeled off the United Kingdoms Press Complaints
Commission. The Press Complaints Commission is composed of seventeen
members, ten representatives of the public and seven editors from the news
industry.99 The Commission enforces the Editors Code of Practice, which is
agreed to by the newspaper and magazine industry.100 It serves the following
functions:

negotiating remedial action and amicable settlements for

complainants;
issuing rulings on complaints;
using published rulings as a means of guiding newsroom practice
across the industry;

99 About the PCC, PRESS COMPLAINTS COMMISSION,

http://www.pcc.org.uk/AboutthePCC/WhatisthePCC.html. There is also a
similar body in Germany called the German Press Council that has an equal
number of representatives from the public and the profession. See Media
Landscape: Germany, EUROPEAN JOURNALISM CENTER,
http://www.ejc.net/media_landscape/article/germany/.
100 About the PCC, supra note 99.

publicly censuring editors for breaches of the Code;

passing on pre-publication concerns to editors to prevent the Code

being breached;
passing on requests to editors that their journalists cease contacting

individuals, and so prevent media harassment;

issuing formal guidance, based on its interpretation of the Code, to the

industry on important issues;

instigating its own investigations under the Code in the public interest

where appropriate;
conducting training seminars for working journalists and editors;
and liaising with other press councils internationally.101

The professional press corps could serve similar functions here in the United
States.
The press itself must continue to maintain its independence and be free to
criticize the government.102 In cases involving issues such as Wikileaks or The
Pentagon Papers the government will have an advisory role and possibility of
redress in the courts if they believe that the release of information will harm
national security. As far as governments are concerned the people and press
are often in agreement that transparency is the best policy.103 Maintaining
the independence of the press will be crucial in ensuring the success of the
professional press commission. If individuals view the commission as a tool
of the government or a propaganda center for the government agenda then
organizations will decline to join and it will fail.
Setting the Standards

Currently United States news organizations follow their own practices and
procedures when it comes to ethical issues. Larger organizations such as NPR

101 Id.
102 Thomas Jefferson once said, Where the press is free and every man
able to read, all is safe.
103 See The Atlanta Declaration, CARTER CENTER,
http://www.cartercenter.org/documents/Atlanta%20Declaration%20and
%20Plan%20of%20Action.pdf.

and The New York Times publish these codes online.104 In countries such as
the United Kingdom, Germany, and France there are universal standards that
are published and adhered to by the press.105 Even in the uncharted
territories of blogging and Internet journalism organizations have published
suggested standards that should be adhered to.106 The Society of Professional
Journalists has published a code that could serve as a foundation for the
code that the professionalized press might follow in the United States.107
These codes have a series of norms that are universal. For example all the
codes contain provisions about accuracy in reporting. The French and
German codes contain provisions on respecting the dignity of the subjects
that are being reported on, while the Society of Professional Journalists code
speaks of showing compassion for the subjects that are being reported on.108
The Society of Professional Journalists also includes a provision on respecting
the privacy of the individuals being reported on.109
Adjudication and Remedies

A new professional organization sponsored by the government that adopts

standards for the press is not useful unless it has the power to adjudicate
disputes between individuals that have been harmed and the press. As part
of this adjudication it must have the power to institute some kind of
enforcement action if a press organization does not comply. As a voluntary
104 See The New York Times Company Policy on Ethics in Journalism, NEW
YORK TIMES CO., http://www.nytco.com/press/ethics.html, see also Ethics Code,
NPR, http://www.npr.org/about/aboutnpr/ethics/ethics_code.html.
105 See Editors Code of Practice, Press Complaints Commission,
http://www.pcc.org.uk/cop/practice.html; see also France Code, DONALD W.
REYNOLDS JOURNALISM INSTITUTE, http://www.rjionline.org/MAS-Codes-France-RFI
and German Press Code, PRESSERAT,
http://www.presserat.info/service/english/press-code.html.
106 See Robert Niles, What are the ethics of online journalism?, ONLINE
JOURNALISM REVIEW, http://www.ojr.org/ojr/wiki/ethics/.
107 See SPJ Code of Ethics, SOCIETY OF PROFESSIONAL JOURNALISTS,
http://www.spj.org/ethicscode.asp.
108 Id.
109 Id.

organization the range of sanctions and penalties that can be imposed might
be limited as organizations can refuse to comply and then withdraw if they
dislike sanctions that are put upon it. However if the available inducements
to join the voluntary society are great enough then rational actors will pay
monetary penalties or cease to engage in the non-compliant behaviors
instead of losing the privileges granted by the society. The adjudicatory
process should comply with the Administrative Procedures Act. Appropriate
sanctions might include monetary penalties, printing public apologies and
corrections, or whatever other steps might be necessary to afford the victims
of a transgression appropriate redress.
The Society of Professional Journalists has expressed concerns that a quasijudicial body enforcing a code of ethics would have a chilling effect on the
First Amendment rights of journalists.110 However this proposed voluntary
two-tier system allows for publications to continue under the current regime
if they are willing to give-up the privileges afforded to members of the
professional society.
Another issue that may be raised is the possibility of super-injunctions being
imported from the United Kingdom. This has been a hot-button issue that has
received much criticism. The remedy is described as follows:
In their simplest form, they prevent news organisations from
reporting what happens in court, usually on the basis that doing
so could prejudice a trial.
"Super-injunctions"

that

prevent

news

organisations

from

revealing the identities of those involved in legal disputes, or

even reporting the fact that reporting restrictions have been
imposed, have emerged recently. They grew out of family cases
and then developed further as a result of the privacy law that
110 See Why doesnt SPJ enforce its Code of Ethics, SOCIETY
JOURNALISTS, http://www.spj.org/ethicsfaq.asp.

OF

PROFESSIONAL

has come into being in the UK on the back of the right to privacy
enshrined in the 1998 Human Rights Act, itself based on the
European convention on human rights.111
As a kind of prior restraint the super-injunction is not a remedy that is likely
to be found constitutional in the United States.112 Even if they were
constitutional, the effectiveness of prior restraints in the modern era is
questionable.113 Nonetheless the new commission could provide guidance to
news organizations so that they avoid publishing material that violates the
code of ethics. Finally any penalties assessed should fully capture the
economic benefit derived from the deviation from the code of ethics. If the
remedies or penalties amount to what is merely a slap on a wrist then the
news organizations are likely to ignore them with relative impunity.
An Investigatory and Advocacy Role

The proposed organization can also take an investigatory and advocacy role
when there are major events. The Press Complaints Commission lays out the
following steps it can take during a major disaster:
1. If someone does not wish to speak to the media: the PCC can
send a private advisory note to editors, making clear an
individual does not wish to comment publicly on their situation.
This can help to prevent any unwanted media approaches being
made at all;
2. If someone is being harassed by a journalist or photographer:
the PCC can

issue a private desist notice which requests

journalists and photographers cease their approaches with

immediate effect. This can be sent either to an individual
111 Id.
112 Carroll v. Princess Anne, 393 U.S. 175, 181 (1968) (Any prior restraint
on expression comes to this Court with a 'heavy presumption' against its
constitutional validity.).
113 See Brown, supra note 21.

publication if the concern relates to a specific title, or to the

industry more widely if the concern is more general or appears to
involve multiple publications;
3. If someone is concerned about a story that has already been
published: the PCC can deal with a formal complaint under the
Editors

Code

of

Practice

(see

http://www.pcc.org.uk/cop/practice.html).114
This kind of advocacy role is one that the American commission should also
play. Currently there are not many resources in the United States for
individuals who are being pursued by the press. Other than professionals
who have agents or public relations advisors most people are not aware of
how to handle being interviewed. The PCC also has established a website
detailing advice for individuals who are being harassed by the media.115 The
American commission could setup a similar website to provide guidance for
individuals being harassed by media in the United States. This role might
also include giving advice to individuals being harassed by the non-members
of the commission in order to help them understand when and where they
can go to obtain restraining orders or other forms of relief.
Secondarily the commission might also serve as a more neutral forum for
investigating incidents such as the one involving Shirley Sherrod. Currently
incidents of the media getting things wrong involves a potpourri of other
media sources criticizing each other and inserting their own biases into the
incidents. This was most evident both in the Sherrod case and also in
researching the Fox News war case described later in this paper. The
postings at Fox News provided a certain account of events that were echoed
114 How the PCC responds to a major incident, PRESS COMPLAINTS COMMISSION,
http://www.pcc.org.uk/assets/111/How_the_PCC_responds_to_a_major_incide
nt.pdf.
115 What To Do If You are Being Harassed by a Journalist, PRESS COMPLAINTS
COMMISSION, http://www.pcc.org.uk/code/advice_for_complainants.html?
article=Mzg2Mw==.

at other news outlets. However some outlets such as POLITICO took a more
friendly approach to the administration and suggested that the row was a
misunderstanding.116
A Shield Law for Journalists

One potential benefit that could be granted to news organizations that join
this voluntary organization is the protection of a national shield law for its
journalists. A shield law is a statute that provides protection for journalists
that do not wish to disclose their sources in the course of litigation or prelitigation proceedings due to promised confidentiality.117 Currently forty
states have enacted some kind of shield law for reporters.118 There is
currently no national shield law in effect, but they have been proposed.119
The absence of a shield law was prominently an issue when a judge held
New York Times reporter Judith Miller in contempt. This was done because
she refused to testify to a federal grand jury about her sources when she was
conducting an investigation about who leaked Valerie Plames identity as an
undercover CIA operative.120 While she was jailed many prominent reporters
and other individuals made visits to show support for Plame and provide her
with comfort.121 Miller spent 12 weeks in jail until her confidential source,
Scooter Libby, decided to waive confidentiality.122
116 See Michael Calderone, Buearu Chiefs Band Together for Fox, POLITICO,
http://www.politico.com/blogs/michaelcalderone/1009/Bureau_chiefs_band_to
gether_for_Fox.html.
117 See The Reporters Privilege Compendium, THE REPORTERS COMMITTEE FOR
FREEDOM OF THE PRESS, http://www.rcfp.org/privilege/item.php?pg=intro.
118 A Guide to Journalist Shield Laws, POYNTER EXTRA,
http://www.poynterextra.org/shieldlaw/index.htm.
119 S. 446, 111th Cong. (2009).
120 Adam Liptak, New York Times Reporter Jailed for Keeping Source Secret,
N.Y. TIMES, http://www.nytimes.com/2005/07/06/politics/06cnd-leak.html.
121 Carol Leonnig, Jailed Reporter Is Distanced From News, Not Elite Visitors,
WASHINGTON POST, http://www.washingtonpost.com/wpdyn/content/article/2005/09/16/AR2005091601646.html.
122 David Johnston, Jailed Times Reporter Freed After Source Waives
Confidentiality, N.Y. TIMES,
http://www.nytimes.com/2005/09/29/politics/29cnd-court.htm.

In a speech at the University of Connecticut School of Law the journalist Bob

Woodward expressed support for a shield law and noted that currently
journalists put faith in the fact that judges do not like to keep them locked up
for too long.123 The Society of Professional Journalists is also a proponent of
the shield law.124 There appears to be a broad base of support from a variety
of professionals for some kind of shield law, but the efforts to pass it were
recently stifled by the Wikileaks controversy.125 If the news organizations are
willing to incorporate greater elements of cooperation with the government
when addressing national security stories like Wikileaks as part of their code,
the Senate might be open to using the shield law as a carrot for this
professional journalism commission.
Access to Information

The other benefit that the professional organization could provide for its
members is access to information. Currently the law allows the press the
same level of access to institutions that the rest of the public receives. 126
However government organizations are allowed to give news organization
greater access than the public receives if they so choose.127 The restrictions
on access to government by the press are not only to keep certain things
secret but also for reasons of practicality. There is only so much room in
places like the White House Press Room to hold reporters128 or in a combat
zone for the military to allow the embedding of reporters.129
123 Bob Woodward, Journalist and Author, The Washington Post, 2011 Day
Pitney Visiting Scholar at University of Connecticut School of Law (Apr. 26,
2011).
124 See Struggling to Report: The Fight for a Federal Shield Law, SOCIETY OF
PROFESSIONAL JOURNALISTS, http://www.spj.org/shieldlaw.asp.
125 See Wikileaks and a journalism shield law, LOS ANGELES TIMES,
http://articles.latimes.com/2010/aug/05/opinion/la-ed-shield-20100805.
126 Houchins v. KQED 431 U.S. 1 (1978)
127 Id.
128 See Katharine Seelye, White House Approves Pass for Blogger,
http://www.nytimes.com/2005/03/07/technology/07press.html.
129 See Flynt v. Rumsfield, 355 F. 3d 697 (D.C. Circ. 2004) (ruling that there
is not a First Amendment right to access U.S. troops in combat operations).

The Government has not been shy in using access as a tool to control their
relationship with the press, especially the White House.130 In October of 2009
the White House declared war on the Fox News Channel. White House
Communications Director Anita Dunn publicly referred to Fox News as a wing
of the Republican Party.131 She stated that the White House viewed Fox News
as a partisan opponent instead of a legitimate news operation.132 White
House Press Secretary Robert Gibbs also noted that he had watched many
stories on that network that [he had] found not to be true.133 In spite of
protests White House continued to assert that Fox News ran stories that were
not true.134 The war reached boils when the administration denied Fox News
access to Pay Czar Kenneth Feinberg.135 In response to the events the other
networks in the White House Press Pool refused to interview Feinberg until
Fox was allowed to do so.136
130 The White House has also not been shy at using the resources at its
disposal to control the message that the media sees. One prominent
example of this is President Bushs Mission Accomplished speech in 2003.
See White House pressed on Mission Accomplished Sign, CNN,
http://articles.cnn.com/2003-10-28/politics/mission.accomplished_1_aircraftcarrier-conrad-chun-banner?_s=PM:ALLPOLITICS. The Obama administration
has also not been shy at using the resources at its disposal to keep control
over the press. See Top White House Official Says Obama Team 'Controlled'
Media Coverage During Campaign, FOXNEWS.COM,
http://www.foxnews.com/politics/2009/10/19/white-house-official-saysobama-team-controlled-media-coverage-campaign#ixzz1LugTsMRr.
131 White House Escalates War of Words with Fox News, FOXNEWS.COM,
http://www.foxnews.com/politics/2009/10/12/white-house-escalates-warwords-fox-news/.
132 Ari Melber, The Nation: The White House vs. Fox News: Its War, NPR,
http://www.npr.org/templates/story/story.php?storyId=113744059.
133 Brian Stelter, White House vs. Fox News, Not Just Fox Opinion, N.Y. TIMES,
http://mediadecoder.blogs.nytimes.com/2009/10/14/white-house-vs-foxnews-not-just-fox-opinion/.
134 Id.
135 Michael Calderone, Bureau Chiefs Band Together for Fox, POLITICO,
http://www.politico.com/blogs/michaelcalderone/1009/Bureau_chiefs_band_to
gether_for_Fox.html.
136 Administration Loses Bid to Exclude Fox News From Pay Czar Interview,
FOXNEWS.COM, http://www.foxnews.com/politics/2009/10/23/administrationloses-bid-exclude-fox-news-pay-czar-interview/.

More recently Chuck Todd of NBC News has been critical of the White House
for restricting access to CEOs visiting the White House.137 Todd opines that
the restriction of access to the guests at the White House after events are
completed is too much. He understands that security and other
considerations take precedence over access, but he still feels that they
should be granted at least the same amount of access they would get at a
regular public event.138
The government is also sometimes slow or unresponsive when it receives
freedom of information requests from journalists.139 The reasons for this lack
of responsiveness vary.140 Bob Woodward noted that after twenty years he
finally received a freedom of information request he made during the Reagan
administration.141 Some of the backlog is due to the government not wanting
to directly respond to the requests, but other backlog might simply be due to
the lack of resources available to handle the requests.142 The government
could choose to prioritize requests from press organizations that are
members of the press commission over non-members in order to create
greater responsiveness for its members and encourage good reporting on
issues of public interest.
These incidents demonstrate that the press has a thirst for greater access.
By offering the access to the press in exchange for participation in the press
137 Chuck Todd, The White House bubble, FIRST READ NBC NEWS,
http://firstread.msnbc.msn.com/_news/2009/02/13/4430125-the-white-housebubble.
138 Id.
139 See Shivan Sarna, NSA Study Says Freedom of Information Act Response
Slow, GW HATCHET,
http://media.www.gwhatchet.com/media/storage/paper332/news/2011/03/24
/News/Nsa-Study.Says.Freedom.Of.Information.Act.Response.Slow3987413.shtml.
140 See FOIA Statistics, THE SUNSHINE IN GOVERNMENT INITIATIVE,
http://www.sunshineingovernment.org/index.php?cat=213.
141 Woodward, supra note 123.
142 See Audits and Open Record Surveys, National Freedom of Information
Coalition, http://www.nfoic.org/audits-and-open-records-surveys.

commission both sides can get something that they are looking for. The
White House and other government branches might be given more courtesy
in reviewing documents like those the press distributed from Wikileaks
before they are made public while the press might be granted more
information with the understanding that it will not be leaked.
Future Challenges

The proposed two-tier system does not address the issue of diversity in the
media and corporate control. This is a deliberate decision because
membership will be voluntary and it is preferable for the large media
conglomerates to join the commission instead of being shut out of it unless
they trim themselves down.143 The FCC retains the power to regulate media
ownership144 and as the nature of the press changes hopefully the FCC will
consider the importance of diversity in the media landscape when drafting
future regulations. Otherwise the proposed commission might address the
issue of diversity by integrating a more rigorous version of the presently
watered down Fairness Doctrine.
The proposed commission also fails to address the manner in which sources
such as the National Enquirer engage in newsgathering. The National
Enquirer famously pays sources to tips, which is a practice that most other
organizations view as unethical.145 Furthermore a voluntary organization will
not stop the harassment of celebrities or other public figures by the
paparazzi. The commission might deal with this problem by giving guidance
as to what it believes (along with the other reputable news organizations) are
appropriate practices for paparazzi photographers and hope that these
143 See Frequently Asked Questions, Press Complaints Commission,
http://www.pcc.org.uk/faqs.html#faq1_1 (suggesting that too much power or
regulation on the part of their voluntary organization will hamper its
effectiveness).
144 Wilkerson, supra note 78.
145 Got a Tip?, National Enquirer, http://www.nationalenquirer.com/tip
(offering to pay you if you send them a good tip about a celebrity); see also
Ethics, NEW YORK TIMES CO., http://www.nytco.com/press/ethics.html.

standards are adopted. If the paparazzi fail to follow the standards then they
may have persuasive weight in a court of law when a celebrity attempts to
get a restraining order to engage in other legal action to protect their
privacy.
Finally the proposed commission must continue to maintain its relevance.
The appropriate stakeholders will have to put in the legwork to get buy-in
from the various media organizations, members of the public, and the
government. The organization itself must work to adhere to the highest
standards of ethics and preserve the spirit of free debate enshrined in the
First Amendment in order to avoid becoming marginalized or attacked by
interest groups. If the White House or the Congress is going to be willing to
offer up the suggested incentives to the participating organizations then the
commission must ensure that the incentives remain available for its
members and are not rendered useless or ineffective due to other
administration priorities and policies.

Conclusion

This voluntary press commission is a first step in both setting an example for
the rest of the media to follow and also for taming some of the
sensationalism and irresponsible journalism that has been described
throughout this paper. By making the organization voluntary and allowing
non-members to continue operating outside its jurisdiction we avoid
struggling with many of the constitutional constraints that exist in our
current jurisprudence. However the potential benefits such as increased
access to government and a privilege for journalists that do not wish to
testify about their sources will serve as a strong incentive for the more
reputable news organizations to join the new system.

Once this new system is in place professional press commission can increase
regulation in the areas where the public see the greatest need. As the benefit
of this increased scrutiny and collaboration between the press, government,
and media take hold the media and public might realize they prefer a media
that is more restrained and deliberate in their reporting. If the new system is
effective in breaking down some of the adversarial relationships between the
press and the individuals and entities it covers then the public and media
may favor utilizing the commission as a mechanism to fix other problems.
The hope is that the new system will increase the quality of debate and build
civility in the public sphere. The increase in quality and confidence in the
media will hopefully lead to greater consumption of the news from the
member outlets and ultimately everyone will win.