The Creation of the Media: Political Origins of Modern Communication.

• Author: Weiser, Philip J.
• Position: Brief Article - Book Review

THE CREATION OF THE MEDIA: POLITICAL ORIGINS OF MODERN COMMUNICATION. By Paul Starr. New York: Basic Books. 2004. Pp. xii, 484. $27.50.

When the canon for the field of information law and policy is developed, Paul Starr's (1) The Creation of the Media will enjoy a hallowed place in it. Like Lawrence Lessig's masterful Code and Other Laws of Cyberspace, (2) Starr's tour de force explains how policymakers have made a series of "constitutive choices" about how to regulate different information technologies that helped to shape the basic architecture of the information age. In so doing, Starr displays the same literary and analytical skill he used in writing the Pulitzer Prize-winning The Social Transformation of American Medicine, the first-hand experience he gained as one of the founders of The American Prospect (a successful left-leaning policy magazine), and, presumably, the policy savvy gained from years as a Clinton White House aide. (3)

In short, Starr's The Creation of the Media explains how the different segments of the information industries--newspapers, the telegraph, the telephone network, and the radio industry--emerged into their modern form. In so doing, it weaves together a compelling narrative of how intellectual property policy (namely copyright and patent law), First Amendment law, antitrust law telecommunications regulation, privacy protection, and government spending policy all came together to form a coherent and distinctive information policy.

To underscore its point, the book draws several pointed contrasts with European countries and Canada, which made fundamentally different policy choices from the United States that, in turn, gave rise to very different market structures. Finally, because Starr's historical account ends in 1941, his book leaves open for interpretation how to apply the various insights it offers to modern policymakers.

Starr's work comes at a fortuitous time for American information policy, as Congress is poised to reexamine the basic policy choices it made in enacting the Telecommunications Act of 1996. (4) Like Lessig, Starr's fundamental argument is that policy choices matter because they help shape network architectures, industry structure, and the path of technological and economic development. All too often, however, today's zeitgeist downplays the importance of such policy choices, suggesting that either technological or economic factors are solely responsible for the evolution of the information industries. To challenge this view, Lessig's Code underscored that the Internet did not emerge as a natural, fully formed instrument of communication nor would it have developed as it did (or at all) without government oversight. (5) In The Creation of the Media, Starr provides the historical counterpart to Lessig's Code, underscoring that Lessig's contemporary arguments are well rooted in history and that there is a compelling case for addressing information policy as a coherent whole, rather than simply as a collection of doctrines that work in individual contexts. (6)

For today's policymakers, the fundamental information-policy challenge is to develop a coherent regulatory regime for the Internet age. As Starr's historical narrative reminds us, the evolution of the Internet will not merely be the result of technological determinism and market ordering. (7) To be sure, technological forces and private commerce will be critically important in shaping the Internet's development. But like many of the technologies Starr discusses (newspapers, the telegraph, and radio), the Internet was nurtured by government subsidies and it developed as it did--as an open platform for innovation--because of regulatory decisions made by the government, such as ensuring that the telephone lines that carried Internet traffic did not favor certain applications or uses over others. (8)

Even though Starr's narrative closes with the end of the formative era for radio broadcasting in 1941, his analysis highlights a series of important issues that are relevant to today's information-policy debates. Notably, Starr argues forcefully that the American tradition of information policy embraced ways of facilitating next-generation technologies by preventing entrenched incumbents (e.g., Western Union, which controlled the telegraph) from blocking the emergence of a new upstart (e.g., AT&T, which sponsored the rollout of the telephone). Moreover, Starr explains that the United States declined to follow the model of other governments that took control of the early revolutionary technologies, such as the telegraph and the telephone, often as part of a "PTT" (Post, Telephone, and Telegraph) agency. Finally, Starr highlights how early policy decisions laid the foundation for the modern structure of the radio and television industries as well as their regulation.

This Book Review proceeds in four Parts. Part I outlines the essential economic argument that Starr develops through his historical narrative. Part II suggests that Starr's focus on market-power concerns and the importance of an open architecture is a valuable starting point, but an imperfect guide to modern policymakers. Part III analyzes the complicated relationship between the public and private sectors' roles in the creation of the media, highlighting the significance of Starr's argument that the United States enjoys a tradition of public support for the media while, in contrast, it views skeptically the rationale for public ownership of the instruments of communication. In so doing, Part III explains that Starr fails to underscore the insights of public-choice theory, which highlights that private actors use governmental regulation as a tool for protecting their profits (or rents) and limiting competition. Finally, Part IV turns to the question of whether and how policymakers can learn from Starr's account to promote localism and diversity in media policy.

1. OF PLATFORMS AND NEXT-GENERATION TECHNOLOGIES

   Contrary to those who view the media as equivalent to the reporting of news or, perhaps, the news and entertainment industry (with the ever-blurring lines between them), Start embraces a very broad conception of the media, including the postal service, the telegraph, and telephone as fundamental instruments of the mass media. By conceptualizing the media in such broad terms, Start develops a comprehensive portrait of American information policy and draws important parallels among the different industry segments. In particular, each segment of the media industry that Start describes faced notable challenges related to the mass adoption of its "platform," both with regard to attracting users and application developers, and with regard to whether it would be undermined by an established incumbent. In general, Start concludes, the adoption rate and success of new communications technologies in the United States makes our communications system the envy of the world and part of the secret of our nation's success.

   1. A Truly American Revolution

      Starr's account of American information policy argues that it constituted a true revolution from the established order. In particular, Start suggests that the revolutionary spirit of 1776 embodied a democratic commitment to sharing information broadly throughout the American population (or at least among the enfranchised population of property-owning white men). Consequently, on Starr's view, the uproar in reaction to the Stamp Act in 1765 was no accidental point of disagreement between the colonies and the United Kingdom. Rather, Start depicts the American commitment to the flourishing of a free press, and the aversion to the special taxation thereof, as a fundamental break from the continental tradition.

      As Starr recounts with great eloquence, the United States took several steps to codify its commitment to a free press and a robust sharing of ideas. First, the United States established an extensive postal network that, on Starr's account, was a part of a constitutional strategy for democratic self-government. (9) And the extensiveness of the U.S. postal system quickly outstripped its European counterparts, with seventy-four post offices per 100,000 inhabitants by 1828 compared to seventeen offices in the United Kingdom and four in France (p. 88). Second, consistent with the First Amendment's commitment to a free press, Congress instituted a "common carriage" requirement for the postal system--providing for, in marked contrast to the European model, a categorical right of distribution and a prohibition against any form of censorship (pp. 88, 95). Third, the United States adopted a relaxed standard for defamation--centuries before the courts concluded that the First Amendment demanded one (10)--that allowed truth as a full defense to liability. Notably, this policy arose from the brilliant defense of publisher John Peter Zenger, in which his lawyer convinced the jury to nullify the official instructions and acquit Zenger on the ground that his published allegations that the royal New York governor had engaged in corruption were true (p. 59).

      Finally, in a remarkable policy that turned on its head the European precedent of taxing newspapers to depress demand for them, Congress provided for a very cheap rate for mailing newspapers (pp. 16, 88). The impact of this policy was quite dramatic. In 1832, for example, newspapers accounted for ninety-five percent of the weight carried by the postal service, but generated only fifteen percent of its revenue (p. 90). In terms of readership, the impact was equally impressive--there were fifty newspaper subscriptions per 100 U.S. households by the 1820s, netting a subscription rate two to three times as great as Great Britain's (p. 88).

      As Starr explains, the U. S. government's early policy choices (or "constitutive choices," as Starr terms them) related to the regulation and promotion of newspapers provided critical support for this platform technology. But...