I spent a good part of the weekend avoiding this Los Angeles Times column by Tim Rutten headlined "Setting the price of a free press."
I have my blood pressure to think about. Here's the subhead: "If the 1st Amendment is to mean anything, Congress has to suspend antitrust rules for the newspaper industry so publishers can determine as a group how much to charge for online content."
It's been making the Twitter rounds in Future of Journalism nerdland because it's another piece in a major daily encouraging Congress to suspend antitrust laws so that newspapers can form a cartel and collude on pricing.
Usually the argument is that newspapers must be saved because they're important civic institutions and their reporters play a vital watchdog role in society. Rutten's innovation is to argue that without newspapers the First Amendment would be meaningless. He also separates from the pack by freely using the word "collude."
I'm going to borrow a format from the late, lamented Fire Joe Morgan because it's the closest I can come to forming a coherent argument while foaming at the mouth.
I don't want to be accused of stealing content so I'm only going to copy parts of Rutten's piece. I also don't want to be accused of quoting him out of context, so I'll wait here while you go read the whole thing. That link again: Here. By Tim Rutten in the L.A. Times. OK? Here we go.
[Rupert Murdoch] understands that what's required for serious -- which is to say expensive-to-produce -- journalism to survive is that all the quality English-language papers and news sites agree to charge for Web access and then mercilessly sue anyone who makes more than fair use of their work without paying a fee.
The business plan, then, is to "mercilessly sue" the people who are giving your customers, former customers and potential customers what they want. And, in this confusing new-media world, many of the people you will be mercilessly suing will be your customers, former customers and potential customers. Not only is that the plan, it's the only possible plan. It's required. Because it's worked so well for all those other industries that have done it.
American papers had combined revenues of $34.7 billion from the advertising in their print editions last year and just $3.1 billion in advertising from their online sites, despite the fact that, on average, 67.3 million people visited them each month.
My dad, who is not a journalist, pointed something out about sports reporting when I was a kid. He said that newspaper writers think that how things are going now is how things are always going to go. If the local nine has won six straight, you get stories filled with optimism and dissections of all the reasons the team is so great. Let them lose the next three and the papers will be filled with stories about the flaws of the team -- same exact bunch of guys -- and how steps must be taken before it's too late. Written by the same writers, of course.
Two-year-olds are the same way. Try explaining to a 2-year-old that you're taking something away, but you're going to give it back in a few minutes.
And Rutten suffers from the same problem. Because newspapers have higher revenues than their online sites, that will always be the case. It's not possible for online revenue to catch up to print revenue. And advertising revenue? It's the only important revenue source -- and therefore it always will be.
Notice also that Rutten only talks about revenue from newspaper sites, as though that were the whole Web. In fact, that's a subset of the Web that has been notable for its incompetence and the indifference and cluelessness of its owners.
Congress needs to move quickly to grant the newspaper industry at least a temporary exemption from antitrust and price-fixing laws so that publishers and proprietors can, in essence, collude for survival. The question that naturally arises is why the government should have any interest in supporting newspapers -- unhealthy or otherwise.
Funny you should mention that. I was gonna say.
In fact, U.S. authorities have used their regulatory powers to support a free press -- whose foundations were and remain newspapers -- since the Colonial era.
Next we get a history lesson about colonial deputy postmaster Ben Franklin setting cheap or free postal rates for newspapers, a policy that survived independence.
That was crucial to the free flow of information because it allowed the foreign and financial news that aggregated in the port cities to pass uninhibited to the printer/publishers of inland papers, while events in the hinterland were transmitted back to the major cities.
What Rutten's doing here is confusing newspapers with communication. In Ben Franklin's day -- and, in nothing new under the sun news, let's not forget the conflict of interest printer/publisher turned policy-maker Franklin had going -- that was largely true. So the cheap postal rates fostered the free flow of information. Today, newspapers are a fraction of communication.
Even Rutten doesn't try to claim explicitly that newspapers are the entirety of a free press. He uses mushy language to say that newspapers are the "foundations" of a free press, then argues as if he'd made the point that newspapers are the free press.
What Rutten is arguing for here would do exactly the opposite of what he says it would do, which is a neat rhetorical trick. It would hinder the free flow of information. If you want to hinder the free flow of information for business reasons, say so. Don't feed us a line of bull about how you're standing up for freedom.
More important, if Congress acts as it should, it will do so not on behalf of newspapers but for their readers.
Rutten! It's like you can't even hear me! What did I just say?
The press, after all, does not assert 1st Amendment protections on its own behalf but as the custodian of such protections on behalf of the American people.
Oh, on behalf of the people. So it's just a happy coincidence that Congress lifting antitrust laws for newspapers would pull newspapers' crispy butts out of the fire. It's not about that. It's about the people.
Have you met the people, Tim? I hear they're lovely once you get to know them. They're the ones who have been saying for years, with their actions, "If you charge us for online news, we will abandon you. We do not support newspapers or anyone else charging for online news except for news that's highly specialized. We have signaled this consensus by not paying for general news in huge numbers. What we're saying here, Tim, is: You are not seeking government protections on our behalf. We are against what you are trying to do. Also, we like dogs. Not really relevant here, but we, the people, just freakin' love dogs."
The framers wisely judged that a healthy democratic government required people informed by a free press, acting according to the dictates of their own consciences, speaking their minds without inhibition in the free associations of their choosing.
And you agree, unless they don't choose your product.
If the unlooked-for consequences of technical innovation somehow threatened religious freedom -- which is to say, liberty of conscience -- or inhibited free speech or intimidated people from assembling, there's no doubt Congress would act expeditiously.
Right! Like, for example, if someone tried to inhibit the free flow of information to protect their own business interests, Congress ought to leap into the fray, if necessary, to make sure it doesn't happen.
So it now should on behalf of a free press.
So far, it is. By not listening to you and other newspaper guys posing as free-speech advocates by demanding the right to shut up other publishers.
Newspaper proprietors with as serious an interest in their readers' interest as their own bottom lines ought to follow Murdoch's unlikely lead into a consortium of pay-to-view news websites or adopt one of the other proposed models as quickly as practical.
Newspaper proprietors with a serious interest in their readers' interest as well as their own bottom lines ought to listen to their readers -- that is, their customers, former customers and potential customers -- instead of threatening to "mercilessly sue" them, or anyone who gives them what they want.
Fixed that for you, Tim.
Unless our lawmakers empower the newspaper industry to act on its readers' behalf, it's only a matter of time until there are too few serious sources of quality -- or "premium" -- journalism to guarantee the reality of the free press on which all the 1st Amendment's indispensable liberties depend.
This is true only if you operate under two assumptions, both false. The first is that only newspapers can provide quality, or "premium" journalism. The second is that the way things are today is the way they will always be.
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Reading assignment for next time: "High-quality journalism isn't 'free'" by Benjamin J. Marrison of the Columbus Dispatch.