Communications Evolution, Revolution and the Role of the Academy1
Nicholas Johnson
Dirty Sexy Policy Conference
Carsey-Wolf Center
University of California Santa Barbara
February 20, 2014
[PPT – Title]
The “Five Minute University”
[PPT – Video]
[Open with 3:56 YouTube of Father Guido Sarducci’s “Five Minute University”]2
[PPT – Novello]
Thank you Dr. Penley for that introduction, Don Novello for that performance, and thank you
Ms. Carsey for this Carsey-Wolf Center.
Let's hear it for three of the most professional, helpful, and delightful conference organizers I’ve
ever worked with: Constance Penley, Jennifer Holt, and Karen Petruska. And a special thanks,
also, to Karen, her colleague, John, and Matt and DeAnn, for their last minute help in converting
this PC-based Power Point to run on this Mac computer.
Why open with the “Five Minute University”? Because our hosts have designed such a
wonderfully conceived, fulsome, and inclusive conference that you’ll need to imagine Don
Novello has loaned me Father Guido Sarducci’s hat and cape.
1
This working document requires a word of explanation. The actual speech text used on this occasion was drawn
from, but was not identical to, this text (and certainly did not have footnotes!). It is the author’s practice to embed
sources, cites and links into text as it is being prepared even if not required for publication – for his own possible
use, or that of others, later. As originally drafted, the text would have taken roughly twice the 45 minutes allotted to
deliver. During the revision, much of the original text was simply inserted in these footnotes rather deleted. The
references to “PPT” are to Power Point slides at the point when they were displayed.
2
Father Guido Sarducci's Five Minute University, YouTube,
http://www.youtube.com/watch?v=kO8x8eoU3L4
[3:56; 1,208,584 views; “Don Novello created the Father Guido Sarducci character in 1973 after finding a
monsignor's outfit for $7.50 at a St. Vincent de Paul thrift shop. Adding sunglasses, a broom mustache, cigarette and
a thick Italian accent, Sarducci became popular in a San Francisco nightclub.” “Don Novello,” Wikipedia.org,
http://en.wikipedia.org/wiki/Don_Novello.
Don Novello appeared during “the early 1970s on Rowan & Martin's Laugh-In and later in the 1975
Smothers Brothers TV show. His most prominent appearance was on Saturday Night Live in the late 1970s, during
which time [Don] Novello was also a writer for the show.” “Father Guiddo Sarducci,” Wikipedia.org,
http://en.wikipedia.org/wiki/Father_Guido_Sarducci
Santa Barbara – 140220 - Page 2 of 25
[PPT – As Applied This Evening]
When I say, “Censorship of indecency.” You answer, “First Amendment.”
[click]
“Citizens’ rights of entry and access.” You answer, “Net neutrality.”
[click]
“Media ownership.” You answer, “Diversity.”
[click]
Now, two months after the holiday season, when I ask, “Who knows if you’ve been bad
or good?” what do you answer? That’s right, “The National Security Agency.”
[click]
OK, you’ve got it.
I’m very pleased to be here. Actually, at my age, I’m pleased to be anywhere.
For me, California has always felt almost more comfortable than home. Of course, for anyone
living in Iowa in the wintertime, any place feels more comfortable than home.3
[PPT – Where Are We?]
Overview
[PPT - Themes]
So what are some of the themes that are going to get the Father Guido Sarducci treatment?
Since this is, after all, a Dirty Sexy Policy Conference, a word about media indecency and the
role of regulation is in order.
[click]
3
After my Supreme Court clerkship with Justice Hugo Black, my first academic appointment was an
associate professorship at the UC-Berkeley law school, then called Boalt Hall. Much later, UCSD offered me a stint
as a Regents Professor. I’ve lived in Berkeley and Los Angeles, and lectured throughout the state at one time or
another. One of my early trips to Santa Barbara involved a brief stay, and not-so-brief talk, at Robert Hutchins’
Center for the Study of Democratic Institutions.
Santa Barbara – 140220 - Page 3 of 25
Our hosts have specifically identified the concept of “separation of content and conduit.”
[click]
The impact of media ownership on citizens’ First Amendment rights is always a concern.
[click]
The greatest changes since the 1960s4 have been caused by the technological tsunami that’s
washed over every institution and individual on Planet Earth.5
[click]
Where are we headed? And to borrow from the title of Jonathan Zittrain’s book, The Future of
the Internet and How to Stop It,6 what we can do to change course?
[click]
What are the obstacles in our path? How and why does Washington function as it does?
[click]
And finally, what are we to do? What is the role of the academy in directing national
communications policy?
[click]
[PPT – Where Are We?]
“My FCC”
Although we tried to explain to him that the Supreme Court was not part of the executive branch,
President Johnson would occasionally refer to the Court as, “Mah Su-preme Court.”
For a discussion of the changes from the time of FCC Chair Newton Minow’s “vast wasteland” speech in
1961 until a commemorative issue of the Federal Communications Law Journal in 2003, see Nicholas Johnson,
“Forty Years of Wandering in the Wasteland,” Ch. 5, Your Second Priority (Lulu, 2008), p. 71; first published, 55
F.C.L.J. 521 (2003).
4
Technology’s impact is reflected in the evolution of the content and names of my law school courses
during this time, from “Media Law,” to “Law of Electronic Media,” to the last few years of “Cyberlaw.” The
acronym I use is “EDICT” – for electronics, digitization, Internet, computers and telecommunications.
5
6
(2009); available from Amazon in various formats, http://www.amazon.com/Future-Internet-How-Stopebook/dp/B0089EHNC2/ref=sr_1_1?s=books&ie=UTF8&qid=1390647394&sr=11&keywords=zittrain+future+of+the+internet .
Santa Barbara – 140220 - Page 4 of 25
So permit me a few words, and a little fun, in telling you about “Mah FCC,” and why I tried to
project where our nation’s electronic life was headed.
Most jobs provide the employee precise directions. Those of us in the academy have more
freedom. We know we are to engage in research, scholarly writing, teaching, and community
service. However, we get to decide, or least influence, what it is we are going to research, write,
and teach about.7
The job of an FCC commissioner did not involve even those loose restraints.8
Commission meetings were on Wednesdays. The social norm required we show up. But Rotary
is more insistent on perfect attendance than the FCC. A commissioner should read the staff's
memos and proposed decisions before voting. But there were never exams, no requirements to
write anything, and no reliable way to measure whether any thought had occurred. The only
requirement was the ability to raise your hand to vote yea or nay.
Don’t be too harsh in your judgments. Even members of Congress don’t read the laws they enact.
And my colleagues did give some thought to their votes. I once whispered to a colleague, “How
are you going to vote on this one?” He responded, “Well, Nick, some of my friends are for it,
and some of my friends are against it. And I’m for my friends.”
It was like the slogan on a button at a UCLA conference I spoke at 40 years ago. It declared,
“Artificial Intelligence is Better Than None.” Certainly voting for one’s friends is marginally
better than no standard at all.
[PPT – Artificial Intelligence]
Yes, the qualifying exam to become an FCC commissioner was very much like what Peter Cook,
with the 1960s British troop “Beyond the Fringe,” described as the distinction between the
rigorous “judging exam” and the “coal mining exam.”9
[PPT – The Commissioner Screening Exam – Video - click]
[Play 0:09-0:52 from http://www.youtube.com/watch?v=Grg5tULy0tY]10
We also get to decide, at least within broad parameters, how much we do of each, and – since the
expansion of the Internet – when and where we do it.
7
8
Moreover, no one could remove a commissioner from office during, what was then, his or her sevenyear term. Commissioners had a protection similar to the federal judges with lifetime appointments – sort of a
lifetime appointment for someone who only has seven more years to live. President Nixon wanted to impeach me,
before he found out there were no procedures for impeaching FCC commissioners. He later discovered, as you may
have heard, that there were procedures for impeaching presidents.
Peter Cook, “The Miner,” Beyond the Fringe, YouTube.com,
http://www.youtube.com/watch?v=Grg5tULy0tY .
9
10
Ibid.
Santa Barbara – 140220 - Page 5 of 25
Aside from the rigor of all the arm raising at the Wednesday meetings, however, we could write
our own job descriptions.
[PPT – Where Are We?]
Long Range Planning – From 90 Days to 100 Years
One day Konosuke Matsushita,11 the founder of Panasonic, came to Washington and wanted to
see me. This man, born in the 1890s, would live well into his 90s. This was a time when our
corporate executives thought “long range planning” was their to-do list for the next ninety days.
Matsushita-san, by contrast, had “announced a 250-year plan for [his] company.”12
If Matsushita-san’s long range planning was measured in centuries, shouldn’t the FCC’s long
range plan at least be measured in decades?
Finding the answer to that question became this FCC commissioner’s job description.
It began in 1967 with an article in the Saturday Review that urged, among other things, that,
quote, "the mass media should become 'common carriers of ideas'" – a concept I later shortened
to “the separation of content and conduit," 13 a centerpiece in the current fight over net
neutrality’s future.14
My 1967 speculation about our electronics future talked in terms of potential services and
hardware. By the 21st Century they had come into existence, with names such as Amazon,
Google, Netflix, and TiVo; Skype, online banking, and shopping15 – as well as time-shifting.16
11
“Konosuke Matsushita,” Wikipedia.org, http://en.wikipedia.org/wiki/Konosuke_Matsushita .
Matsushita had “announced a 250-year plan for [his] company to fulfill its mission [consisting] of ten 25year periods, each divided into three phases . . ..” “Corporate History,” Panasonic,
http://panasonic.net/history/corporate/chronicle/1932-01.html .
12
13
Nicholas Johnson, "CATV: Promise and Peril," Saturday Review, Nov. 11, 1967, pp. 87, 88,
http://www.nicholasjohnson.org/writing/MagsArts/SRev1967.pdf'
14
See, e.g., Verizon v. FCC, D.C.Cir, Jan. 14, 2013,
http://www.cadc.uscourts.gov/internet/opinions.nsf/3AF8B4D938CDEEA685257C6000532062/$file/11-13551474943.pdf .
15
Infra, n. 12, at p. 97 (“First, what will be the functions performed by electronic communications ten or
twenty years hence? The list of spectacular new uses is, of course, endless: picture-phones, newspaper facsimile
home-printing facilities, teaching machines, banking and shopping from the living room, vast data-retrieval systems
and video-tape libraries capable of flashing out infinite numbers of selections at the option of home viewers – with
options to accept programming or other services with or without accompanying advertising.
“We might hypothesize a cable, video-tape-library, computer-retrieval, closed-circuit-television
combination. Such a system would make it possible for a television viewer to select his own programming, when he
wanted to see it, from a tape library perhaps hundreds of miles distant. He would make connection with the "library"
by "telephone" – using the proper number code on his "touch tone" computer-connector telephone. He would
identify himself, by number, to the library's computer. He would either select the number of the videotape he wished
Santa Barbara – 140220 - Page 6 of 25
By 1970 an expanded version of that article was a chapter in my book, How to Talk Back to Your
Television Set.17
I wrote that we would have by now what I then called, “instantaneous, ubiquitous, no-cost access
to all information”18 – something pretty close to what’s now available, at least when compared
with the 1960s.
[PPT – The View from 1967]
What America needed, I decided, was at least one FCC commissioner whose self-described job
description was that of a modern-day Paul Revere, traveling the country and shouting, “The
communications revolution is coming! The communications revolution is coming!”
Now I’m undertaking a similar 21st Century look forward: the future structure and business
plans for democracies’ mass media – including how to pay for professional journalists’ local,
investigative reporting.
I knew that advocating for the public interest in the ways that I did as a commissioner meant I
would never work in Washington again – and I haven’t. It seemed to me then, and now, a
reasonable price to pay.
I’d been kind of hard on the agency. At the end of my seven-year term, when the Commission
finally got rid of me, they literally destroyed all evidence that my office had ever existed, and
soon moved everyone to a new building.
So to provide a little “Fairness Doctrine” balance to my remarks, we have former FCC Chief of
Staff Zachary Katz here on our second panel. He will reassure you about our nation’s future.
Zach will explain how my move, and theirs, freed the FCC from the chains of special interests,
enabling it to scale the climbing wall to the public interest, and to so rapidly improve that it has
now become a model of federal independent regulatory commissions at their very finest.
Or not.
to see from a printed catalogue or, more likely ask for a visual display on his home screen of a sampling of titles.
The automatic library would then select the designated tape, and send it to his home screen by cable –
instantaneously, or at some future time designated by the viewer. Perhaps the viewer would simply record it on his
home videotape recorder while watching, and keep his own copy of the tape. He could indicate a preference for a
tape with or without advertising. If he selected the tape without advertising, the library's computer would notify the
computers at the "banks" of the viewer and the library owner, adjusting their accounts appropriately.”)
16
The Supreme Court later ruled in the Sony Betamax case that time-shifting was not a copyright violation.
Sony Corp. of Am. v. Universal City Studios , 464 U.S. 417 (1984),
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=464&page=417 .
17
How to Talk Back to Your Television Set (Atlantic Little Brown/Bantam, 1970), (3rd ed., Lulu, 2013). The
chapter was titled, “Communications and the Year 2000.” Id. (Atlantic Little Brown/Bantam, 1970), Chapter 6, p.
121; (3rd ed., Lulu, 2013), p. 86.
18
Id. (Atlantic Little Brown/Bantam, 1970), pp. 121, 122-126; (3rd ed., Lulu, 2013), pp. 86-90).
Santa Barbara – 140220 - Page 7 of 25
[PPT – Where Are We?]
[PPT – First Panel]
The First Panel
First, a word about obscenity and indecency.
With a first panel that includes a lawyer like Jeff Douglas, the legally savvy Mark Kernes and
Daniel Linz, academics such as Peter Alilunas, and Cynthia Chris, plus the CEO of the Free
Speech Coalition, Diane Duke, you certainly don’t need any more from me on that subject.
[click]
You’re about to get a little more anyway.
Clerking for Supreme Court Justice Hugo Black during the 1959 Term of Court meant being
there while he wrote and published both his notable concurring opinion in Smith v. California,
arguing that obscenity is protected speech, and his lecture on the Bill of Rights for the first New
York University James Madison Lecture.19
The First Amendment commands that, “Congress shall make no law . . . abridging the freedom
of speech.”
Justice Black was the first Supreme Court justice to ask his colleagues, “Just what part of ‘No’ is
it you don’t understand?”20
We lost those battles. Governments are free to regulate obscenity, but not indecency – unless it’s
broadcast. This month is, after all, the tenth anniversary of the 9/16ths of a second, $550,000,
Super Bowl “wardrobe malfunction.”21
19
Smith v. California, 361 U.S. 147, 155 (1959) (concurring opinion),
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=361&page=147; Hugo L. Black, "The
Bill of Rights," James Madison Lecture, N.Y.U., Feb. 17, 1960; 35 N.Y.U. Law Rev. 1, (April 1960),
http://www.criminology.fsu.edu/faculty/gertz/hugoblack.htm
20
Justice Black noted that those who drafted the Bill of Rights were perfectly capable of using nuanced
phrasing. For example, the Fourth Amendment that has been in the news recently does not forbid all “searches and
seizures.” It forbids “unreasonable searches and seizures” without a search warrant. The Supreme Court has always
been willing to redraft the First Amendment, borrowing that qualifier from the Fourth Amendment, as if the drafters
had written, “Congress shall make no unreasonable law . . . abridging the freedom of speech.”
“Super Bowl XXXVIII halftime show controversy,” Wikipedia.org,
http://en.wikipedia.org/wiki/Super_Bowl_XXXVIII_halftime_show_controversy . Four years after I left the
FCC came the Pacifica decision authorizing the Commission’s regulation of indecency. FCC v. Pacifica Foundation,
438 U.S. 726 (1978),
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=438&page=726 . Things have
ebbed and flowed since then. See, “Obscene, Indecent and Profane Broadcasts,”
http://www.fcc.gov/guides/obscenity-indecency-and-profanity (“Indecent programming contains patently
offensive sexual or excretory material that does not rise to the level of obscenity. The courts have held that indecent
21
Santa Barbara – 140220 - Page 8 of 25
There are hundreds of abridgments of free speech: the Copyright Act, government-mandated
language on a can of food, or cigarette package; prohibitions on revelations of how the CIA and
NSA are spending our money this week. The government has even forbidden humorous speech –
at least around airport security.22
[click]
If this sort of thing interests you, pursue it with our first panel.
[click]
material is protected by the First Amendment and cannot be banned entirely. It may, however, be restricted in order
to avoid its broadcast during times of the day when there is a reasonable risk that children may be in the audience. .
. . [B]roadcasts – both on television and radio – that fit within the indecency definition and that are aired between
6:00 a.m. and 10:00 p.m. are prohibited and subject to indecency enforcement action. “)
22
The courts simply look at the government’s abridgement of speech and apply one of three levels of
scrutiny to what would otherwise be clear constitutional violations – “reasonable basis,” “intermediate,” and “strict”
scrutiny. If the government abridgement passes the Court’s relevant test, it’s constitutional, regardless of what the
First Amendment says.
“Strict scrutiny
“Strict scrutiny is a form of judicial review that courts use to determine the constitutionality of certain laws.
To pass strict scrutiny, the legislature must have passed the law to further a "compelling governmental interest," and
must have narrowly tailored the law to achieve that interest. . . . For a court to apply strict scrutiny, the legislature
must either have significantly abridged a fundamental right with the law's enactment or have passed a law that
involves a suspect classification. Suspect classifications have come to include race, national origin, religion,
alienage, and poverty.”
"Strict Scrutiny," Cornell University Law School, Legal Information Institute, ,
http://www.law.cornell.edu/wex/strict_scrutiny
“Intermediate Scrutiny
“Intermediate scrutiny is a test used in some contexts to determine a law's constitutionality. To pass
intermediate scrutiny, the challenged law must further an important government interest by means that are
substantially related to that interest. As the name implies, intermediate scrutiny is less rigorous than strict scrutiny,
but more rigorous than rational basis review. Intermediate scrutiny is used in equal protection challenges to gender
classifications, as well as in some First Amendment cases.” "Intermediate Scrutiny," Cornell University Law
School, Legal Information Institute, http://www.law.cornell.edu/wex/intermediate_scrutiny
“Rational Basis
“Rational basis review is a test used in some contexts to determine a law's constitutionality. To pass
rational basis review, the challenged law must be rationally related to a legitimate government interest. Rational
basis is the most lenient form of judicial review, as both strict scrutiny and intermediate scrutiny are considered
more stringent. Rational basis review is generally used when in cases where no fundamental rights or suspect
classifications are at issue.” "Rational Basis," Cornell University Law School, Legal Information Institute,
http://www.law.cornell.edu/wex/rational_basis
Santa Barbara – 140220 - Page 9 of 25
In my Cyberlaw Seminar we use the acronym EDICT – electronics, digitization, Internet,
computers, and telecommunications – to describe the rapid changes that impact every individual
and institution.23
You see before you one illustration of that rapid change. Late last year I played the role of a
small town mayor in Iowa, one hundred years ago.24 The director thought the mayor should have
a beard.
Last week, she cast me as a talking, texting refrigerator, plugged into the Internet of things. It has
become a friend of the owner’s bathroom scale.25 When the owner discovers the refrigerator has
locked him out, it tells him, “I’m sorry, Dave, but your bathroom scale says I cannot let you eat
any more now.”26
These changes also affect the very definition of obscenity. For example, courts say we must
apply “contemporary community standards.”27 What is the “contemporary community standard”
for obscenity in Santa Barbara or West LA? How about counties like Nevada, Placer, Shasta,
Sutter or Tuolumne? How can you possibly create a California “community standard”?
Now try coming up with a global standard in this age of EDICT.
Should the world’s standard for obscenity and indecency have to respect the standards of all 200
countries?28 If not, what do you think the standard, and process, should be?
23
For the fall 2013 Cyberspace Law Seminar, the participants were provided Nicholas Johnson, "Cyber
Phenomena: How Electronics, Digitization, the Internet, Computers and Telecommunications (EDICT) Have
Changed Everything,” Aug. 30, 2013, with some 50 categories and sub-categories of EDICT’s impact on individuals
and institutions, nicholasjohnson.us7.listmanage.com/track/click?u=b0ead05d75a65101b4203cc97&id=a441636c00&e=279ea3f907 .
“Summer Magic at the County Fair,” Combined Efforts Theatre, July 26, 27, 2013,
http://combinedefforts.org/acting-company/; photos,
https://picasaweb.google.com/112595362905156566990/SummerMagicAtTheCountyFair?authkey=Gv1sRgCKS8m
8Swg7aVKQ .
24
“Your Refrigerator Calling,” in the series “Perhaps Love,” Combined Efforts Theatre, Feb. 11, 2014,
http://combinedefforts.org/.
25
26
The line is suggested by "HAL 9000: 'I'm sorry Dave, I'm afraid I can't do that," an excerpt from "2001:
Space Odyssey" (1968), Stanley Kubrick, director, http://www.youtube.com/watch?v=ARJ8cAGm6JE .
27
See Roth v. United States, 354 U.S. 476 (1957),
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=354&page=476, and Miller v.
California, 413 U.S. 15 (1973),
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=413&page=15. "Roth established a . . .
judicial standard for defining obscenity . . . that included the following five-part structure: . . . (2) community
standards of acceptability were to be used to measure obscenity . . .. The Miller test for obscenity includes the
following criteria: (1) whether ‘the average person, applying contemporary community standards’ would find that
the work, ‘taken as a whole,’ appeals to ‘prurient interest’ . . .." "Obscenity," Cornell University Law School, Legal
Information Institute, http://www.law.cornell.edu/wex/obscenity .
Santa Barbara – 140220 - Page 10 of 25
What are we to make of products like Real Touch, that offers couples “interactive sex” over the
Internet, complete with the necessary anatomical parts?29 Is that adultery?
[click]
[PPT – Where Are We?]
[PPT – Second Panel: Infrastructure]
The Second Panel
The charge to our second panel is to explore what the conference call expressed as “the new
challenges and possibilities for infrastructure policy in light of digital technologies.”
And what a panel our hosts have put together: Harold Feld from Public Knowledge; Zachary
Katz, whom I mentioned earlier, now at USC’s Annenberg Center; Danny Kimball from
Wisconsin; Becky Lentz from McGill, making this an international conference; Victor Pickard
from Annenberg East, at the University of Pennsylvania, and Sharon Strover from America’s
largest non-glacial state.30
[click]
Matt Rosenberg, “The Number of Countries in the World,” Education, About.com,
http://geography.about.com/cs/countries/a/numbercountries.htm . A large proportion of all the world’s text, picture,
audio and video content can be accessed instantly, anywhere on Planet Earth with a WiFi, Ethernet or satellite
connection. Our global network is both everywhere and nowhere simultaneously. What standard should apply, and
how and by whom is that standard to be enforced? Should it be the standard of those religions and cultures that are
the most restrictive; those that require women’s bodies to be totally covered from head to toe? Diane Duke’s Free
Speech Coalition members might find that standard something of an impediment to their filmmaking. On the other
hand, the Free Speech Coalition’s standards would be deeply offensive to majorities within many of those 200
countries. In fact, they might be so offended that when her members are in, or fly over, those countries, they are
subject to arrest, conviction, and prison sentences.
28
Alex Hawgood, “’Interactive’ Gets a New Meaning; Sex Toys and Cybersex are Enhanced by New
Technology,” New York Times, Dec. 26, 2013, p. E7, http://www.nytimes.com/2013/12/26/fashion/Sex-toyscybersex-high-tech.html (“Or consider RealTouch, a USB-connected sex toy said to have been designed by a former
NASA engineer that promises ‘interactive sex’ with another person over the Internet. It comes in two parts: one
modeled after a woman’s lower anatomy, and one modeled after a man’s. Designed to be paired with a webcam, one
device captures sensations (using technology that is similar to that of a touch screen) and then transmits it digitally
to the other, as if the two were in the same room.”).
29
30
I feel as if I have at least some connection with almost all of them: Harold Feld, from two of my favorite
public interest organizations – Public Knowledge, and Andy Schwartzman’s Media Access Project – as well as my
one-time law firm, Covington & Burling; Zachary Katz, whom I’ve already mentioned; Danny Kimball, from the
University of Wisconsin-Madison department where I held a distinguished visiting professor position over 30 years
ago; Becky Lentz from McGill, whose Ph.D. comes from the University of Texas, where I was about the time
Becky’s mother was born; and Victor Pickard, who also has had affiliations with a number of my favorite
institutions, including Annenberg at Penn, Free Press, and the NYU programs.
Santa Barbara – 140220 - Page 11 of 25
These panelists’ insights into our “challenges and possibilities” will far exceed my own – both in
their comments tomorrow and in their past and future writing.
And speaking of writing, I especially commend to all of you one of Jennifer Holt’s more recent
books, Empires of Entertainment.31
The book’s subtitle seemingly limits its focus to the years 1980 to 1996. But it actually provides
a perspective on media's 20th Century evolution into the status quo. “Status quo;” that’s Latin for
“the mess we’re in now.” And understanding the mess we’re in now is a necessary prerequisite
for exploring the mess that lies ahead.
[click]
America’s regulatory compromise between public and private ownership was a product of the
Radio Conferences of the 1920s, called by that great Iowa liberal of the time, then-Secretary of
Commerce, Herbert Hoover.32 That is, private citizens could operate radio stations, but not own
the frequencies.33 An independent regulatory commission would award short-term licenses;
31
32
Empires of Entertainment: Media Industries and the Politics of Deregulation, 1980-1996 (2011),
http://www.amazon.com/s/ref=nb_sb_noss_1?url=search-alias%3Dstripbooks&fieldkeywords=Jennifer%20Holt . The book is available from Adobe Digital Editions, Amazon in a variety of
formats, and by way of any independent booksellers who are successfully struggling to stay in business. She
has gathered the facts, reconstructed the history, and explained the interplay of forces – ideological, political,
economic, legislative, regulatory, and technological – that brought us from where we were in the middle of the
20th Century to where we arrived at its end.
Hoover was then Secretary of Commerce.
“It is the purpose of this chapter, among other things, to maintain the control of the United States over all
the channels of radio transmission; and to provide for the use of such channels, but not the ownership thereof, by
persons for limited periods of time, under licenses granted by Federal authority, and no such license shall be
construed to create any right, beyond the terms, conditions, and periods of the license.” 47 U.S.C. §301,
http://codes.lp.findlaw.com/uscode/47/5/III/I/301 . This compromise for broadcasting was similar to the one struck
with AT&T, and the railroads. Most nations thought radio potentially so politically powerful that they did not trust it
to private owners. On the other hand, Americans and their elected officials were then, as they are still today,
frightened by their nightmares of the evil “socialism,” and reluctant to use the resources of government even for
benevolent purposes. But they had also lived through, and suffered from, the corporate excesses of the late 19th and
early 20th Century.
33
Santa Barbara – 140220 - Page 12 of 25
make many of the decisions normally left to owners in other industries;34 and regulate licensees
against a standard of “the public interest.”35
[click]
Ninety years ago the miracle of radio was scarcely understood.36 And yet Congress was
sufficiently prescient to anticipate the threats to our democracy that this conference will be
addressing tomorrow.
Here is how Congressman Luther Johnson of Texas explained it to his colleagues:
[P]ublicity is the most powerful weapon that can be wielded in a Republic, and when . . .
a single selfish group is permitted to . . . dominate these broadcasting stations . . ., then
woe be to those who dare to differ with them.37
[click]
My baptism of fire on these issues was provided by the proposed merger of the ABC network
with ITT, triggering my concerns that ITT might use the network as its public relations arm.38
34
Licensees could request, but it was the Commission that decided who could get, and keep, a broadcast
license. In fact, broadcasting was one of the few industries in which licensees could send competitors (operating on
the licensee’s frequency without a license) to a federal penitentiary. The Commission decided the total number of
stations, their locations, and hours of operation; the height of antennas, the maximum power of transmitters, and the
direction of signals (coverage area). There were maximums on numbers of commercials, and minimums on
quantities of news, public affairs, public service announcements, and other non-entertainment programming. So
described, station “owners” had little more discretion than a McDonald’s franchisee. See the early decisions of the
Radio Commission, and FCC regulations, Title 47 of the U.S. Code of Federal Regulations (first published in 1936),
in any edition from the 1940s and 1950s.
35
E.g., “The Commission, if public convenience, interest, or necessity will be served thereby, subject to the
limitations of this chapter, shall grant to any applicant therefor a station license provided for by this chapter. “ 47
U.S.C. §307(a).
36
We still do not totally understand it today, since it can only be explained with the use of two, conflicting,
scientific theories.
The full text is: “American thought and American politics will be largely at the mercy of those who
operate these stations. For publicity is the most powerful weapon that can be wielded in a Republic, and when such a
weapon is placed in the hands of one, or a single selfish group is permitted to either tacitly or otherwise acquire
ownership and dominate these broadcasting stations throughout the country, then woe be to those who dare to differ
with them. It will be impossible to compete with them in reaching the ears of the American people.” 67 Cong. Rec.
5558 (1926). Today it does not require prescience – only a sense of the history and evidence that Jennifer Holt and
others of you here have provided – to know that Congressman Johnson was right. Initially broadcast licenses were
only for 18 months, a term that had expanded to three years by the time I was there. There were severe restraints on
multiple media ownership. Then the Radio Commission, subsequently the Federal Communications Commission,
began the gradual process by which Luther Johnson’s nightmare ultimately became reality. Single selfish groups did
“dominate these broadcasting stations.” What was once gradual, became a tsunami flood tide following the
ideologically-driven “deregulation” of the 1980s and ‘90s.
37
See, Nicholas Johnson, “The Media Barons and the Public Interest: An FCC Commissioner’s Warning,” in
Your Second Priority, Ch. 7, “Media Ownership and Concentration of Power,” p. 102; originally published in
38
Santa Barbara – 140220 - Page 13 of 25
The merger of diverse media companies created additional concerns.39
[click]
And they are constantly reconfiguring themselves, like Comcast and Time Warner Cable40 –
something reminiscent of Stephen Colbert’s bit about the breakup of AT&T.
[PPT – ATT & Media Industry Evolution]
[This video is embedded in the Power Point slides at this point in the presentation.]
Today there are changes in the cast of characters, corporations, industries, technology, and
sources of threats to our democracy and the values underlying the First Amendment. Today we
are dealing with the likes of Amazon, Apple, Facebook, Google, Netflix; Verizon and Comcast.
Congressman Luther Johnson warned us 90 years ago of the challenges we confront today: the
actual and potential threats to our freedom to upload and download at a reasonable price,
opportunity for tomorrow’s entrepreneurs, more meaningful democratic participation in selfgoverning, a better educated population to perform jobs paying more than Scrooge-level
minimum wages.
[PPT – Where Are We?]
[PPT – Third Panel]
Atlantic Monthly, June 1968, p. 43. This conglomerate, whose CEO, Harold Geneen, oversaw some 400 boards of
directors, included subsidiaries providing everything from bakery goods to rental cars and insurance. Aside from its
ability and inclination to function as a nation-state, my concern was that such a conglomerate might be tempted to
view ABC as its public relations and advertising arm, promoting the interests of its many subsidiaries.
39
Those of us opposing the Time-Warner merger in 1989 asked one of the executives why they wanted to
merge. He replied, in effect, “Because someday there will be five firms that control all of the media on Planet Earth,
and we intend to be one of them.”
“Time Warner,” Wikipedia.org, http://en.wikipedia.org/wiki/Time_Warner . And a week ago today we
learned of Comcast’s proposed acquisition of Time Warner Cable. David Gelles, "Time Warner Cable and Comcast
Strike $45.2 Billion Deal," Dealbook/New York Times, Feb. 13, 2014,
http://dealbook.nytimes.com/2014/02/13/time-warner-cable-and-comcast-strike-45-2-billion-deal/. See generally,
“Times Topics: Comcast Corporation,”
http://topics.nytimes.com/top/news/business/companies/comcast_corporation/index.html. “Comcast Corporation is
the largest mass media and communications company in the world by revenue.It is the largest cable company and
home Internet service provider in the United States, and the nation's third largest home telephone service provider.
Comcast provides cable television, broadband Internet, telephone service and in some areas home security
(including burglar alarms, surveillance cameras, fire alarm systems and home automation) to both residential and
commercial customers in 40 states and the District of Columbia. Since January 2011, having acquired the majority
of the international media company NBCUniversal it is also a producer of film and television contents, operates
cable channels, national channels (NBC and Telemundo), the major film studio Universal Pictures, and Universal
Parks & Resorts. Comcast also has significant holdings in several cable networks (including E! Entertainment
Television, the Golf Channel, and NBCSN), distribution (ThePlatform), and related businesses." "Comcast,"
Wikipedia.org, http://en.wikipedia.org/wiki/Comcast.
40
Santa Barbara – 140220 - Page 14 of 25
The Third Panel
Fortunately, we have yet a third panel which has been told to bring all of this together and give
us the answers.
From the academy we have Bill Kirkpatrick from Denison; Philip Napoli, Rutgers; Jaclyn Selby,
USC; and Thomas Streeter, Vermont. They are joined by Jacob Sullum from Reason magazine,
and Stephen Yagielowicz from XBIZ.41
[click]
I do not envy them their charge. They are to give us the answers to:
–
–
–
–
Should ISPs be the content police?
How can we get more media coverage of our issues?
What alternative media models are there?
How can we bring them about?
[click]
If that crew can’t come up with the answers, no one can. And I’m not going to presume to
interfere with their deliberations before we even know what we will have given them to work
with by the time their panel comes around.
[PPT – Where Are We?]
The Obstacles in Our Path
[PPT – The Obstacles in Our Path I]
When I was trying to build coalitions of media reformers during the 1970s, my universal pitch to
everyone from public interest groups and unions to foundations and private donors was,
“Whatever is your first priority, media reform has to be your second priority. Without it you’re
going nowhere; with it you at least have a chance.” That phrase, Your Second Priority, later
became a book title for a sampling of my writing since How to Talk Back to Your Television Set.
Fuller comments, cut from the text for lack of time, were: “Bill Kirkpatrick from Denison University.
Philip Napoli, Director of the Donald McGannon Communication Research Center at Fordham. Ah, Don
McGannon, the Pope Francis of the broadcasters, a broadcaster I could really admire and consider a friend. Jaclyn
Selby from USC’s Annenberg School, where some other 1970s friends of mine became involved, including the
former dean, Geoffrey Cowan, my former legal assistant, Tracy Westen, and of course Norman Lear. Our third
panel also includes Thomas Streeter, from the University of Vermont. You may be relieved by now to discover that,
while I admire his work, I have absolutely no ties to the state of Vermont. Jacob Sullum is my kind of guy, stirring
up all kinds of controversial issues in ways that force people to think. And who better at a “Dirty, Sexy Policy
Conference,” than Stephen Yagielowicz from XBIZ?”
41
Santa Barbara – 140220 - Page 15 of 25
Since what was then called media reform is our first priority, I needn’t sell you on the idea it
should be your second priority.
But I have another second priority for us.
It is the need to democratize our government and politics, and the crucial role of campaign
finance reform. Because I believe you and I not only have the opportunity, but the obligation, to
take the best of our ideas out of the dusty pages of long forgotten obscure scholarly journals and
put them to work.
Josh Silver42 stands as an example for us. You may know and respect him as I do. Josh was one
of us, the co-founder and CEO of FreePress,43 with its National Conference for Media Reform.44
He has now added a second priority, the one I am urging you take up. He is now devoting his
creative energies to Represent Us,45 described as “a movement to end corruption.”46
What follows are some basics about this second priority and what you will be up against.
[click]
Four possible elements of resistance include: the Supreme Court’s approval of private
censorship, the sub-government phenomenon, campaign contributions, and the donors’ return on
those investments.
[click]
Are you familiar with A.J. Liebling’s observation that, quote, “freedom of the press is
guaranteed only to those who own one”? The Supreme Court has turned it into constitutional
law.47
Media owners may, as a matter of grace, publish our letters to the editor, or broadcast our calledin comments during talk radio. But we have no legally enforceable right even to buy space in a
“Josh Silver (nonprofit director),” Wikipedia.org,
http://en.wikipedia.org/wiki/Josh_Silver_%28nonprofit_director%29
42
43
FreePress, http://www.freepress.net/.
44
National Conference for Media Reform, http://www.freepress.net/resource/99076/issue-brief-nationalconference-media-reform
45
Represent Us (“We the people are building a movement to end corruption”), https://represent.us/.
46
United Re:Public, http://unitedrepublic.org/.
47
A. J. Liebling, "Do you belong in journalism?", The New Yorker, May 14, 1960, cited in,
http://en.wikiquote.org/wiki/Freedom_of_the_press; and see http://en.wikiquote.org/wiki/A._J._Liebling with
sketch.
Santa Barbara – 140220 - Page 16 of 25
paper, or time on radio. Freedom of speech, says the Court, includes the owners’ freedom to
censor.
The only exceptions were the public access channels I fought for in the Commission’s cable
rules – and fought for because of this universal legal censorship of the mass media. It is the same
reason why, today, our fight for net neutrality is so imperative.
[click]
There are, of course, those who think abolishing net neutrality is a terrific idea.48
[PPT – Video: Colbert, “End of Net Neutrality”]
Second, there is the sub-government phenomenon.
It was not enough to have been a political science major, a law school graduate, and a professor
of administrative law. The belief from childhood remained: there are three branches of
government – legislative, executive and judicial.
Imagine my shock to discover that those three branches are almost devoid of power. So where is
the power? In a place I call the sub-governments.
What are sub-governments?
Sub-governments are those old covered wagons you see around Washington, arranged in circles.
Each group of wagons contains the interests that, together, protect the profit-maximizing
interests of their occupants. Virtually every American industry has its own collection of wagons.
[PPT – The Sub-Government Phenomenon]
But we will limit ourselves to the broadcasting industry’s wagons during the 1960s and ‘70s.
So who’s in these wagons?
[PPT – Who’s In These Wagons?]
One wagon contains an industry’s dominant firms, called an oligopoly. Many U.S. industries are
oligopolies. For broadcasting this was, then, ABC, CBS and NBC – who were, for the most part,
quite comfortable sharing a wagon.
[click]
Stephen Colbert, “The Colbert Report,” “End of Net Neutrality,” Jan. 23, 2014,
http://www.colbertnation.com/the-colbert-report-videos/432448/january-23-2014/end-of-net-neutrality.
48
Santa Barbara – 140220 - Page 17 of 25
The next wagon houses the industry’s trade association; for broadcasting, the National
Association of Broadcasters.49 The purpose of trade associations is to use smaller firms’ lobbying
reach into congressional districts to serve the economic interests of the oligopoly.50
[click]
There is a wagon for the regulatory agency or commission, originally created to protect the
public interest. As such agencies soon discover, there is far greater security and fellowship within
the protective circle of wagons than outside. For our purposes, the agency is the Federal
Communications Commission.51
[click]
The lawyers who represent the oligopolists and lesser owners, and practice before the FCC, have
their own bar association and wagon. They call it the Federal Communications Bar
Association.52 In the back of their wagon, maintaining the lawyers’ academic credentials, are
volumes of their very own law review, the Federal Communications Law Journal.53
[click]
There are lobbyists who specialize in representing media companies. They, too, have a wagon.
[click]
The House and Senate delegate most of their power to committees and sub-committees. The
House and Senate Communications Subcommittee members had a wagon for themselves and
senior members of their staff.54
49
http://www.nab.org/.
50
One trade association technique is to frighten the smaller members into thinking they are under attack.
They can then be encouraged to contribute money to fighting funds, and provide grassroots lobbying from every
congressional district – something oligopolists often cannot do on their own.
51
http://fcc.gov .
http://www.fcba.org . The FCBA, as it is called, was formed in 1936 [“Description of the FCBA,” Federal
Communications Bar Association, http://www.fcba.org/about/description-of-the-fcba/ ] – a mere two years after the
Communications Act of 1934 was enacted. 47 U.S.C §§151 et seq.
52
http://www.repository.law.indiana.edu/fclj/ (“The FCLJ is the official journal for the Federal
Communications Bar Association . . ..”).
53
54
Now House Communications and Technology Subcommittee,
https://energycommerce.house.gov/subcommittees/communications-and-technology; Senate Communications,
Technology, and the Internet Subcommittee,
http://www.commerce.senate.gov/public/index.cfm?p=CommunicationsTechnologyandtheInternet. The other
members of the House and Senate – the “legislative branch” our children learn about in school – pretty much leave
oversight, legislative, and budgetary responsibility for the broadcasting sub-government to these folks.
Santa Barbara – 140220 - Page 18 of 25
[click]
There is a wagon for the trade press, something about as close to media and journalism as most
sub-governments ever get.55 The broadcasting industry’s publication was then called,
unimaginatively, Broadcasting Magazine.56
[click]
But it is their symbiotic synergy that reinforces the sub-government’s power. When no one is
looking, they come out of their wagons at night and party. They eat together. They play together.
They hold an annual golf tournament. Sub-governments have their own eating club – in this case,
the Broadcasters Club. You can’t tell who’s paid for a reception by who’s there. It’s always the
same people. They serve the same shrimp. It is so incestuous. They literally intermarry.
They switch jobs, moving from one wagon to another. Young law graduates may start with the
FCC, move to a communications subcommittee staff, and then a Federal Communications Bar
Association law firm. Then they can lunch with former colleagues at the FCC on behalf of
paying clients.
Trade publication reporters may move to the FCC’s press office, or become a congressperson’s
speechwriter.
Given the sub-government’s power over the White House and Congress, presidents tend to select
commissioners from within the industry – such as the current FCC Chair, Tom Wheeler.57 And
when their terms expire, or the price is right, former commissioners can stay in the subgovernment – join, or even create, Federal Communications Bar Association law firms, become
executives or lobbyists for communications companies or their trade associations.58 Although, to
be fair, many former commissioners occasionally do contribute to non-profit and public-spirited
projects.59
55
The lack of interest in sub-governments by audience and general advertisers alike, plus the complexity of
the issues, means that there’s very little coverage. And since virtually all of the advertising that supports the trade
press comes from within the sub-government, every sub-government’s member is well served – including trade
press owners and writers. My memory is that, frustrated with the New York Times lack of coverage of the FCC, I
once wrote the Times’ publisher, Arthur Ochs Sulzberger, to point out that no Times’ reporters were then regularly
assigned to cover any of the agencies within the federal triangle in downtown Washington that then regulated onethird of the U.S. economy. As I recall, some temporary assignments followed, but did not last.
56
It has, by today, evolved enough to call itself Broadcasting & Cable, http://www.broadcastingcable.com/ .
See, Nicholas Johnson, “Somewhere Between Bizarre and Outrageous,” May 2, 2013,
http://fromdc2iowa.blogspot.com/2013/05/somewhere-between-bizarre-and-outrageous.html .
57
58
Rachelle Chong, "What Former FCC Chairmen Do After Their Gig is Up," TechWire, March 29, 2013,
http://techwire.net/chong-what-former-fcc-chairmen-do-after-their-gig-is-up/.
59
Ibid.; and, e.g., John Eggerton, "Former FCC Officials Seek Redskin Name Change," Broadcasting &
Cable, April 5, 2013, http://www.broadcastingcable.com/news/washington/former-fcc-officials-seek-redskin-name-
Santa Barbara – 140220 - Page 19 of 25
Moreover, there are civil servants at the FCC who are bright, ethical, hard working, and
idealistic. Unfortunately, even they sometimes find themselves becoming card-carrying members
of their sub-government; some slowly and unconsciously; others knowingly, and cynically
mapping their path to more lucrative future employment.
Those able to maintain their idealism and independence sometimes find their only meaningful
option is to resign or go public. Edward Snowden’s assessment may have been wrong, but wrong
or right he appears to be one of those who believe it is futile to pursue whistle blowing through
channels.
Ah, but wait; it gets worse.
[PPT – The Money & Return on Investment]
Because, third, there is this dirty little matter of money.
How much money? The average amount of money it takes to get elected or re-elected to
Congress is nearly $2 million. A Senate seat costs over six times as much. And those are just
averages. It took over $42 million to put Elizabeth Warren in the Senate.60
Do the simple math. Every day, 365 days every year, House members need to raise about $2500
a day, and Senators about $5000 a day. 61
change/61262 (the group included former commissioners FCC Chair Reed Hundt, Commissioner Jonathan
Adelstein, and myself).
60
Jon Terbush, "What It Costs to Win a Congressional Election," The Week, March 11, 2013,
http://theweek.com/article/index/241194/what-it-costs-to-win-a-congressional-election ("To become a United States
senator, you . . . need, on average, $10.5 million. . . . Sen. Elizabeth Warren (D-Mass.) raised $42.5 million . . ..
House races were far cheaper than Senate contests, with victorious candidates raising an average of about $1.7
million.").
61
A House member has two years, or 730 days, to raise this money. A Senator has six years, or 2190 days.
Figuring 24/7 fundraising, seven days a week, 52 weeks and 365 days a year, that means a House candidate
must raise $2329 per day, every day, for two years. For a Senator, it’s $4795 per day, every day, for six years.
And those are averages. Half the candidates must raise more. At $42.5 million, Senator Warren’s quota will
be nearly $20,000 a day ($19,406).
Think about what this would mean for you personally – starting today.
Most of us have enough friends and family members that we can raise our first day’s quota – two to five
thousand dollars. Some of us can do it for a week; maybe a handful can keep it up for a month. But for 730, or 2190,
days in a row? I don’t think so.
Members of Congress, who want to spend weekends in their home districts, belong to what they call the
“Tuesday through Thursday Club” – leaving for home on Friday, and returning to Washington sometime Monday.
That’s not much time for legislative business.
Santa Barbara – 140220 - Page 20 of 25
[click]
And from whom must they beg?
America’s wealthiest one percent? Not even close. They’re phoning from a list of the top onetwentieth of one percent – 150,000 individuals – a list you could put in an Excel spreadsheet on
your laptop.62
Obviously, this system has many critics. Some consider it legalized bribery. In fairness, few of
the participants are enthusiastic about it either. After all, it is not so much that lobbyists and
special interests are voluntarily offering this money to public officials. It is the officials who
demand it of them, in much the same way that outright bribes or protection money is demanded,
and paid, in other contexts. Corporate and trade association executives resent these demands.
Elected officials feel demeaned by having to make them. It is a form of prostitution, albeit
among the fully clothed – at least most of the time.
[click]
So why does it continue? Because what’s called “pay to play” works for everyone who can
afford to pay and wants to play. The public officials keep their jobs and perks, and their
benefactors are richly rewarded. Both parties get what they want.
The only ones for whom it doesn’t work are you and me, and others in the 99%.
[click]
Fourth and finally, what do the donors get?
The answer first came to me during President Nixon's Administration. The milk producers
wanted a higher support price. The Department of Agriculture could find no justification. The
producers gave Nixon $200,000. Shortly thereafter, we all started paying $400 million more for
our milk.63
And it’s even less time when you figure that, for many members, a third to a half of the time they are in
Washington they are engaged as telemarketers, or brokers in a boiler room on Wall Street. They are working out of
their parties’ call centers, begging for money.
62
“Members spend anywhere between 30 percent and 70 percent of their time raising money to fund their
campaigns. But they raise that money from a tiny fraction of the 1 percent. No more than 150,000 Americans give
even the maximum amount allowed to any one candidate. These are the contributors that members are most focused
on, which means our Congress is dependent upon about .05 percent of America – one twentieth of one percent – to
fund their campaigns.” Lawrence Lessig, “Creating a Congress of the Rich and For the Rich,” US News, Oct. 8,
2013, http://www.usnews.com/debate-club/should-the-supreme-court-uphold-personal-limits-on-campaigncontributions/congress-should-be-dependent-upon-people-not-money .
63
Nicholas Johnson, "Campaigns: You Pay $4 or $4000," Des Moines Sunday Register, July 21, 1996, p.
C2, http://www.uiowa.edu/~cyberlaw/rcntpubl/campaign.html; and see, "Bush's Ruling Class," Common Cause
Magazine, April/May/June 1992, pp. 8, 10.
Santa Barbara – 140220 - Page 21 of 25
The math isn't too difficult: $400 million divided by $200 thousand means the milk producers
got a 2000-to-one return on that campaign contribution! That’s better than a Wall Street hedge
fund.
Further research revealed the formula holds for most industries. A 1000-to-one return is a good
rule of thumb – give a million dollars, get back a billion dollars.
The returns take a variety of forms: subsidies, price supports, tax breaks, tariffs, bargain rates for
public lands, favorable antitrust litigation settlements, and defense or other government
contracts.
Sometimes the payback involves the avoidance of a negative, such as a CEO who isn’t sent to
prison, an abandoned antitrust action, or the defeat of tougher anti-pollution standards.
[click]
Of course, there are other consequences as well.
How else can you explain why we are the only industrialized nation without universal singlepayer healthcare – paying more for our healthcare while getting less? Why are we the only nation
still using credit cards with magnetic stripes – subjecting 100 million Americans to identity
theft?
[click]
Let’s put a face on these “other consequences.” What does non-regulation – purchased with
generous campaign contributions – look like?
Here’s just one example.
A storage facility for the West Fertilizer Company, near Waco, Texas, exploded last April 17th.
Fifteen people died, 160 were injured. Texas law allows hazardous fertilizer storage facilities to
operate without any liability insurance. OSHA’s last inspection of the facilities? 1985!64
[PPT - Non-Regulation’s Mushroom Cloud]
[PPT - Non-Regulation’s Fire]
[PPT - Non-Regulation’s Externalities]
“West Fertilizer Company explosion,” Wikipedia.org,
http://en.wikipedia.org/wiki/West_Fertilizer_Company_explosion . And see, Akadjian, "25 Images of Markets
'Regulating Themselves," Daily Kos, Feb. 3, 2014, http://www.dailykos.com/story/2014/02/03/1271430/-25Images-of-Markets-Regulating-Themselves .
64
Santa Barbara – 140220 - Page 22 of 25
[PPT – A Victim After]
[PPT - Another Victim at the Scene]
[PPT - Non-Regulation’s Coffins]
[PPT - Non-Regulation’s Grief]
Why is it that when foreign terrorists cause this kind of destruction and human misery American
officials are willing to spend $2 trillion on wars of choice, and yet say and do little or nothing
when it’s caused by American corporations?
Why can’t Americans find out the dangers from the 100,000 untested chemicals our corporations
are using – two of which recently polluted the water supply in West Virginia?65 Why has our
electric power grid suffered terrorist attacks, risking that we will be left to freeze in the dark? 66
“Critics say the problems are widespread in a state where the coal and chemical industries, which drive
much of West Virginia’s economy and are powerful forces in the state’s politics, have long pushed back against
tight federal health, safety and environmental controls. ‘West Virginia has a pattern of resisting federal oversight
and what they consider E.P.A. interference, and that really puts workers and the population at risk,’ said Jennifer
Sass, a senior scientist at the Natural Resources Defense Council . . ..” Coral Davenport and Ashley Southhall,
"Critics Say Spill Highlights Lax West Virginia Regulation," New York Times, Jan. 13, 2014, p. A8,
http://www.nytimes.com/2014/01/13/us/critics-say-chemical-spill-highlights-lax-west-virginia-regulations.html.
And as recently as last week we learned that tons of toxic coal-ash slurry were polluting North Carolina's Dan River.
"From 50,000 to 82,000 tons of coal-ash slurry flowed into the Dan [River] after the collapse of a [Duke Energy]
corrugated metal drainpipe . . .. Coal ash, a murky gray sludge that is the residue from burning powdered coal to
generate electricity, contains high levels of toxic elements, including lead, mercury, selenium and arsenic. . . .
[E]nvironmental and citizens’ groups . . . [said] the leak was the result of decades of lax oversight." Michael Wines
and Timothy Williams, "Huge Leak of Coal Ash Slows at North Carolina," New York Times, Feb. 7, 2014, p. A11,
http://www.nytimes.com/2014/02/07/us/huge-leak-of-coal-ash-slows-at-north-carolina-power-plant.html.
65
This is much more complex and deadly than what is sometimes summarily described as “industry capture.”
Three years ago, the United States witnessed two deadly consequences of “agency capture” in one month.
There were 29 dead miners in a coalmine with numerous prior safety violations. The U.S. Mine Safety and Health
Administration had failed to shut it down. “[T]he first comprehensive state report on the 2010 coal mine disaster
[found that] Massey used its leverage 'to attempt to control West Virginia’s political system,' and through it,
oversight agencies. . . . Politicians were afraid of the company . . . because the chief executive at the time, Don
Blankenship, 'was willing to spend vast amounts of money to influence elections,' the report said. It also faulted
regulators for stopping short of applying the strictest censure of Massey . . .." Sabrina Tavernise, "Report Faults
Mine Owner for Explosion That Killed 29," New York Times, May 20, 2011, p. A11,
http://www.nytimes.com/2011/05/20/us/20mine.html.
Shortly thereafter 11 offshore drilling workers died in the course of the worst environmental pollution
disaster in the nation’s history. Had the Minerals Management Service been doing its job, instead of literally getting
in bed with the industry, had it been more independent of the oil industry in general and BP in particular, those
workers would be alive today. "Government officials in charge of collecting billions of dollars’ worth of royalties
from oil and gas companies accepted gifts, steered contracts to favored clients and engaged in drug use and illicit
sex with employees of the energy firms, federal investigators reported yesterday." Derek Kravitz and Mary Pat
Flaherty, "Report Says Oil Agency Ran Amok; Interior Dept. Inquiry Finds Sex, Corruption," Washington Post,
September 11, 2008, http://www.washingtonpost.com/wp-dyn/content/article/2008/09/10/AR2008091001829.html .
Santa Barbara – 140220 - Page 23 of 25
“Why?” we ask. “Why?”
Because drinkable water, safe workplaces, and electric power grid security cost money – money
that will never, during a single 90-day quarter, increase a company’s profit or stock price. Cost
avoidance is as good as profit, and with a 1000-to-one return, campaign contributions are
cheaper. And since we privatize profit and socialize losses, much of any losses will be handed
off to taxpayers, consumers, injured and dead workers, and the innocents who bear the suffering
from our profitable, but polluted, environment.
[PPT – What This Conference Must Address]
What this conference must address are the potential consequences of corrupt, unregulated, phony
capitalism for the institutions and issues that we care about – an open Internet, and a mass media
that serves the needs of a democratic society.
What are the equivalent consequences for us of the forces that produce polluted water in West
Virginia and North Carolina, attacks on the power grid in San Jose, massive explosions in Texas,
and hundreds of earthquakes in Oklahoma?
[click]
Federal and state legislators still shake down the campaign contributors. Major donors get
unbelievable returns on their investments. The sub-governments survive and rule.
Expenditures on the 2012 elections were something like $6 billion.67
One of the reformers’ favorite proposals is “public financing of campaigns,” through a voluntary
check off on our tax returns, or other means.
See, e.g., “The Oxymoron of "Corporate Responsibility; Corporate Risk Assessment and Inevitable Disaster,” July
16, 2010, http://fromdc2iowa.blogspot.com/2010/07/oxymoron-of-corporate-responsibility.html; "Big Oil: Calling
Shots, Corrupting Government; Hey, Hey, Ho, Ho, Salazar Has Got to Go!" May 26, 2010,
http://fromdc2iowa.blogspot.com/2010/05/big-oil-calling-shots-corrupting.html.
66
"Shortly before 1:30 a.m. on April 16, 2013, one or more people methodically cut communication cables
near a Pacific Gas & Electric substation in San Jose, sprayed more than 100 rifle bullets and knocked out 17 of the
station’s 23 transformers before fleeing and avoiding capture. . . . [former chair, Federal Energy Regulatory
Commission, Jon B.] Wellinghoff said, 'To my knowledge, there hasn’t been a comprehensive plan developed' to
defend them [the electric power grid's substations]." Norimitsu Onishi and Matthew L. Wald, "Months Later, Sniper
Attack at Power Hub Still a Mystery," New York Times, Feb. 6, 2014, p. A12,
http://www.nytimes.com/2014/02/06/us/months-later-sniper-attack-at-power-hub-still-a-mystery.html .
67
“2012 Election Spending Will Reach $6 Billion, Center for Responsive Politics Predicts,” Open Secrets,
Oct. 31, 2012, http://www.opensecrets.org/news/2012/10/2012-election-spending-will-reach-6.html
.
Santa Barbara – 140220 - Page 24 of 25
What they fail to recognize is that we already have “public financing of campaigns.” If 300
million Americans could pay that $6 billion directly it would be roughly $20 a person. By
providing campaign contributors the 1000-to-one return on their contributions we end up paying
1000 times that much, $6 trillion, or $20,000 a person.
We not only pay it in the form of higher taxes, but in higher prices for consumer goods and
services – automobiles and gasoline, pharmaceuticals and health care, insurance and bank rates,
cell phone and cable bills.
It’s up to us. Would you rather pay $20 for our elections or $20,000? It’s your choice.
[PPT – Public Financing of Campaigns]
My hope as a commissioner in the 1960s and ‘70s was that the universities, foundations and
think tanks I visited, and implored to do the necessary research and writing, and the journalists I
briefed on the issues and possible answers, would ultimately motivate the public to put enough
pressure on their elected and appointed officials to produce action.
That hope remains this evening. And you hold the key.
That 1967 Saturday Review article with which I began these remarks, concluded with words
equally applicable now: what is required is
"a brand of imagination that does not flourish in bureaucratic offices, where weekly
deadlines leave little time for reflection. The challenge is to make technical advance serve
human ends, to define those ends, and mold the techniques accordingly. For this
demanding charge, government, for all its expertise, cannot serve the public interest
without intelligent public participation."68
To borrow a familiar campaign line, “We are the people we have been looking for.” We are the
ones, you and I, to whom America must look for the leadership in that “intelligent public
participation.”
[PPT – Conclusion: What Is Required Is . . .]
Thank you.
68
Nicholas Johnson, "CATV: Promise and Peril," Saturday Review, Nov. 11, 1967, pp. 87, 98,
http://www.nicholasjohnson.org/writing/MagsArts/SRev1967.pdf' . As it happens, our host, Professor Jennifer Holt,
came to a similar insight in the final sentences of her conclusion to Empires of Entertainment: “The challenge for
cultural critics and policy scholars is to link ownership limits and spectrum allocation to the quality of public
information, national collective cultural expression, and the strength of a functioning democracy. It is our duty as
citizens, consumers, and educators to cultivate awareness about the dynamics of regulatory practice, political
discourse, and the nexus of technological and institutional convergence that will shape the future of entertainment
empires and the vitality of our media. It is my hope that, at the very least, artists, poets, lawyers, economists, media
scholars, and an educated, engaged public will all be involved in that endeavor.”
Santa Barbara – 140220 - Page 25 of 25
[PPT – Nick’s Coordinates]
[PPT – No content; placeholder]
[PPT – Extra option: Howard Beal from Network]
NJ; Test Pattern for Living; Paddy Chayefsky; “Network,” Peter Finch, playing Howard Beal,
channeling Nicholas Johnson