Viewpoint diversity and media ownership.

• Author: Baker, C. Edwin

1. INTRODUCTION II. RATIONALES FOR OWNERSHIP DISPERSAL A. Democratic Distribution or Dispersal B. Democratic Safeguards C. Media Quality or the Undesirable Bottom-Line Focus. III. EMPIRICAL STUDY OF VIEWPOINT DIVERSITY A. The Study B. Value of Viewpoint Diversity C. Reasons for Error I. INTRODUCTION

   The premise of Professors Daniel Ho and Kevin Quinn's "Viewpoint Diversity and Media Consolidation: An Empirical Study" is a repeated assertion. They believe that the claim that media consolidation reduces viewpoint diversity (the "convergence hypothesis") "forms the empirical bedrock" of federal regulation for restricting media consolidation (1) (presumably beyond what would be independently required by antitrust law). The FCC's ownership rules, they say, "[a]t heart.., rest on ... the 'convergence' assumption." (2) Given this premise, they apply innovative statistical techniques to a sample of five cases to show that mergers do not correlate with reductions of viewpoint diversity. (3) On this basis of having "challenge[d] long-held assumptions about viewpoint diversity," (4) they conclude that their findings justify cautious relaxation of existing ownership restrictions. (5) Specifically, Ho and Quinn use statistical techniques to categorize editorial positions on Supreme Court opinions as liberal or conservative. (6) They then analyze editorial positions about these Court decisions taken by papers before and after five mergers--for example, the merger of New York Times and the Boston Globe--and find no systematic reduction of viewpoint diversity.

   Their study is subject to a number of obvious methodological criticisms, some of which Part III.A addresses. The primary problem, however, is that they are simply wrong in their basic assumption that the "convergence" hypothesis provides the main policy basis for ownership restraints. Three other concerns, which I have presented elsewhere (7) and summarize in Part II, provide the primary grounds to oppose media mergers. Their empirical study, consequently, is entirely irrelevant to appropriate reasons to oppose media concentration. Proper attention paid to the three most relevant concerns shows that any reliance on Ho and Quinn's study in policy debates would simply be perniciousness. To drive this point home, Part III.B explains why the quantitative amount of viewpoint diversity, which they purport to measure, is not even to be valued in itself--though how diversity or similarity of viewpoints develops is a proper policy concern relevant to why source (but not viewpoint) diversity matters. Part III.C concludes by speculating about causes of Ho and Quinn's mistake of focusing on viewpoint diversity--comments intended as a cautionary tale about the use and abuse of positivist empirical analyses.

2. RATIONALES FOR OWNERSHIP DISPERSAL

   The three major reasons to oppose media concentration in general, and mergers in particular, can be labeled: (i) the democratic distribution value; (ii) the democratic safeguard value; and (iii) the media quality value, cashed out as an objection to a bottom-line focus. The first two reasons, I suspect, represented the primary--but usually unarticulated--concerns of the public when nearly two million people wrote to oppose the FCC's recent relaxation of concentration restraints, (8) while the third often finds expression, with various levels of articulation, among editors, journalists, artists and others in the media professions. I describe the logic of each in turn.

   1. Democratic Distribution or Dispersal

      A central premise of most normative theories of democracy is that democracy should constitute a wide, roughly egalitarian, sharing of political power. With a dire reference to the "unanimity of the graveyard," the Court asserts that here "[a]uthority ... is to be controlled by public opinion, not public opinion by authority." (9) This basic democratic premise leads to the formal equality embodied in the Court's "One Person, One Vote" requirement (10) Judicial resistance to a constitutional claim that political equality should be substantive and not merely formal does not reject the normative claim. Rather, the Court correctly recognizes that, because the proper form of substantive equality is democratically contestable, because substantive equality can never be fully realized, because moves in that direction necessarily involve institutionally complex trade-offs, and because some of the ways used to advance this value themselves create constitutional problems, (11) the claim should not have constitutional status. (12)

      The egalitarian premise that justifies the formal one person, one vote requirement also applies to voice within the public sphere. Voice, more than vote, creates public opinion and provides the possibility of deliberation. It is likewise clear that the media is the central institution of a democratic public sphere. These observations lead inexorably to the recommendation of a maximum dispersal of media power, (13) power represented ultimately by ownership. (14)

      Various caveats to this "equal voice" goal exist--and I note three crucial ones. First, not everyone has the same ability or, possibly more important, the same desire to engage in significant, regular public communication. Moreover, media would not be "mass" without specialization in "voice." We would simply have babble--everyone talking ineffectively. Thus, the democratic distribution value of maximum dispersal must not overwhelm the competing value of allowing effective speakers to amass large audiences. Still, the significance of allowing effective media speech does not, in any way, require that a single owner should own multiple media entities. Rather, it only recommends against legal limits on any individual entity's appealing to--and obtaining--an audience of great size. The practical goal should be to assure a dispersal of ownership that leaves everyone able to experience some media as her own--as speaking for her or to her concerns--and thus able to view herself and her views as fairly included in public discourse.

      Second, increasing ownership dispersal always works in the direction of equalizing the distribution of media power among groups. Nevertheless, reasonably advancing this aim often requires other policy measures. The market might result in all or, more likely, many of the inherently limited number of people who control media entities being people with similar values, experiences, and perspectives. Therefore, with demographic commonalities often serving as rough markers, government policy should aim to disperse ownership among those coming from different groups that are salient in public life. (15)

      Third, on "republican" or deliberative democracy premises, some media may usefully aim to embody society-wide discourses. (16) Thus, legal efforts to assure that different voices are represented within each of these broadly aimed media entities may be appropriate. (17) Still, despite the caveats, a central reason to favor media ownership dispersal is to broaden the distribution of voice within the democratic public sphere.

   2. Democratic Safeguards

      Possibly most obvious among the benefits of ownership dispersal are the various safeguards it creates for democracy. Four are noted here.

      First, dispersal helps avoid the danger of demagogic power--the "Berlusconi effect." (18) Although the primarily economic interests behind most media conglomerates often work against concentrated media power being leveraged into demagogic political power, the existence of this concentrated power within the public sphere creates a real danger of abuse. No democracy should accept that risk. Even if, in the past, the risk had never led to bad results (which would make the danger hard to measure by normal statistical techniques), good institutional design--like good structural design of nuclear power plants--should not unnecessarily risk calamitous results. In fact, at least since the first major German media conglomerate supported the rise of Hitler, (19) various countries and, often, communities in countries that have both important local media and politically significant local or state governments, have experienced demographic abuse of the concentrated power implicit in conglomerate media ownership.

      Second, dispersal simply results in more people with power to set directions and determine the energy that a media entity puts into being a watchdog, exposing both the incompetence and malfeasance of the powerful. (20) More people with this authority can translate into greater watchfulness from a broader range of perspectives which can offer different insights into potential problems. As the FCC explained in 1970,

      A proper objective is the maximum diversity of ownership.... We are of the view that 60 different licensees are more desirable than 50, and even that 51 are more desirable than 50.... If a city has 60 frequencies available but they are licensed to only 50 different licensees, the number of sources for ideas is not maximized. It might be the 51st licensee that would become the communication channel for a solution to a severe local social crisis. (21) Third, simply by increasing the number of people over whom a potential corrupter of the media must exercise power or influence, greater dispersal of ownership predictably reduces the risk of effective external corruption.

      Fourth, media concentration exacerbates the ubiquitous conflicts of interest problems that can undermine journalistic integrity. Basically, responsible media entities try to maintain "church and state separations"--where business interests do not compromise journalistic integrity. A concentrated ownership structure can greatly and, since dispersal of ownership is a possibility, unnecessarily increase incentives to breach this wall. Mergers add to these conflicts in two scenarios: where media entities combine (a) with other media companies, and (b) with multi-industry conglomerates. They create two...