Governments Love a Media Cartel—As Long as They're in Control

In 1969, one of the country's most controversial speakers delivered a fiery attack on the mass media. "For millions of Americans," he declared, the three TV networks "are the sole source of national and world news." Thanks to "a monopoly sanctioned and licensed by government," a "small group of men, numbering perhaps no more than a dozen anchormen, commentators, and executive producers, settle upon the 20 minutes or so of film and commentary that's to reach the public." This represented "a concentration of power over American public opinion unknown in history." And the people who wielded that power were concentrated in two cities—New York and Washington—where they "draw their political and social views from the same sources. Worse, they talk constantly to one another, thereby providing artificial reinforcement to their shared viewpoints."

It sounds like a radical critique of the power elite. But the speaker wasn't Noam Chomsky or Stokely Carmichael. He was Vice President Spiro Agnew, reading a script largely composed by a young writer named Pat Buchanan. And Agnew wasn't trying to end that government-licensed monopoly power. He was trying to bend it to his own ends.

Agnew had opened his speech with a rather different complaint: He didn't like the way the networks had covered a recent presidential address. Not content merely to air Richard Nixon's remarks on Vietnam, they had followed his words with commentary by a panel of news analysts, some of whom had been pretty critical. The vice president acknowledged that "every American has a right to disagree with the president of the United States and to express publicly that disagreement," and then he offered a "but": "But the president of the United States has a right to communicate directly with the people who elected him, and the people of this country have the right to make up their own minds and form their own opinions about a presidential address without having the president's words and thoughts characterized through the prejudices of hostile critics before they can even be digested." Apparently, the problem with concentrating TV power in the hands of a small group of men is that they might not refrain from airing additional views after handing the president the microphone.

"Advocates for the networks have claimed a First Amendment right to the same unlimited freedoms held by the great newspapers of America," Agnew added. "But the situations are not identical. Where The New York Times reaches 800,000 people, NBC reaches 20 times that number on its evening news. Nor can the tremendous impact of seeing television film and hearing commentary be compared with reading the printed page." Besides, "we are not going to cut off our television sets and listen to the phonograph just because the airways belong to the networks. They don't. They belong to the people."

In that context, Agnew's comment that the networks' power was "licensed by government" sounded less like a social critique and more like an implicit threat. The goal wasn't to break up the opinion cartel; the goal was to make it play ball. The speech signaled the White House's willingness to use the regulatory apparatus as a pressure point, and the network bosses received the message. CBS soon suspended its practice of airing analysis after presidential addresses.

More than half a century has passed since then, and the media landscape looks very different now than it did in 1969. But it's not hard to hear echoes of the old days when critics accuse social media sites of acting as arms of the state. For several years, they point out, officials have been pressuring platforms to suppress different sorts of speech, most recently when the administration urged Facebook and company to clamp down on posts that stray too far from the COVID consensus. And the biggest tech companies, like the TV networks, benefit from all sorts of government interventions, some of them overt subsidies, some of them tucked away in obscure corners of laws like the Digital Millennium Copyright Act or the Computer Fraud and Abuse Act. State and corporate power have been entwined for generations, and that didn't stop when they started assembling transistors in Silicon Valley.

Now, there's room to debate how much these things are true. A defender of the industry might point to various non-governmental reasons that prompt platforms to moderate their users' speech, or might argue that these companies would dominate the tech sector even without those interventions. But I don't want to get bogged down in those debates here. There clearly is at least some truth to the critique, and it's worth asking how to deal with the issue—especially when some have been suggesting federal intervention as a remedy.

To them, I point to the lessons of Agnew. Beware politicians who borrow just enough from your radical critique of the corporate state to bend a power structure to their own ends.

At the height of the three-network era, there was a clear-cut, direct, and undeniable relationship between the government's rules and the types of speech that were allowed. If you wanted to broadcast a radio or video signal to the public, you needed a license from the Federal Communications Commission (FCC), and the number of licenses was artificially capped. This was a nice sweetheart deal for the incumbent broadcasters, who faced far less competition than the technology of the day would have allowed. It also gave a lot of leverage to the government, which could force broadcasters to include or exclude various sorts of programming if they wanted to keep those licenses. Some of these demands were explicitly written into the law, but officials could also apply pressure in informal ways. When done in public, this was called "regulation by raised eyebrow."

Sometimes there's little doubt that a network programming decision was made with the government's preferences in mind. Hence CBS's compliance when Agnew complained about those post-speech panels—or, even more abjectly, the time the White House pressured NBC into airing a half-hour prime-time special about Nixon's daughter's wedding. Other times the record is ambiguous. In 1969, CBS canceled The Smothers Brothers Comedy Hour over some of the tamest political satire you can imagine. A lot of factors were at play there, and it is possible that this would have happened even without the looming presence of the FCC. But even then, it was undeniably the FCC's fault that there were only three networks where a national show like The Smothers Brothers could air, with cable largely locked out.

When the networks cleared away such speech because they were worried about regulatory hassles, were they acting as arms of the state? More or less, yes. Close enough for quasi-government work. But what was the best policy response to that?

One approach would be to try to mandate that the networks be politically neutral—the analog-age counterpart to some of the suggestions floating around in the digital era. (In 2019, for example, Sen. Josh Hawley introduced the "Ending Support for Internet Censorship Act," which the Missouri Republican said would "bring transparency and accountability to [platforms'] editorial processes and prove that they don't discriminate.") We don't have to guess what this would have looked like in practice, because a policy like this existed at the time. It was called the Fairness Doctrine, and its effect was to make censorship more common, not less.

The Fairness Doctrine gave the FCC the power to punish broadcasters for being insufficiently balanced, and officials regularly used it to hassle TV and radio broadcasters who criticized them. It was one of the Kennedy and Johnson administrations' chief weapons for pushing right-wing radio critics off the air. The abuse didn't stop when the other party took the White House: Republicans regularly filed Fairness Doctrine challenges against broadcasters whose reporting angered the Nixon White House. (Agnew surely approved: His speech included a quote from Red Lion, the Supreme Court decision that declared the doctrine constitutional.) State and local officials used the regulation as a club too. Even when no one was actually invoking the rule, risk-averse broadcasters worried about the ways it could be used against them. And so, while there were occasions when the Fairness Doctrine let people get a dissident perspective onto the airwaves, the overall effect was to make stations wary about airing controversial political opinions of any kind.

Those results should not be surprising. The opinion cartel existed for two big reasons: the number of licensed broadcasters was artificially restricted, and it was too easy for the government to put pressure on its licensees. The Fairness Doctrine did nothing to solve the first problem, and it made the second one worse: Now officials had yet another pressure point at their disposal.

So what's the better option, if trying to mandate neutrality doesn't work? Well, if the problems are (1) government pressure and (2) corporations being shielded from competition, it's best to remove those pressure points and foster more competition. We know that private self-censorship is less powerful when those public pressure points are missing, because we can compare how such systems played out in different regulatory environments. In the 1950s, after the Senate held hearings on comic books' supposed role in fostering juvenile delinquency, the industry adopted a content code; but the federal government didn't have much legal leverage over the publishers, given the First Amendment, so in the '60s indie companies could simply ignore the Comics Code and its strictures. The Motion Picture Production Code was more powerful than that, because it was imposed at a time when the Supreme Court said the First Amendment did not protect movies, thus putting more teeth in the threat of federal regulation; the Court reversed itself on movie censorship in 1952, and the Code started to lose its grip at about the same time. And analog-era television, which labored under the tightest government controls, also imposed the most stringent self-censorship systems. But after some of those regulations were eased in the '80s, the networks' standards-and-practices departments were pared back as well.

As for how to foster more competition, that's a subject best left for another article. I'll just note that it's better to adjust the basic rules of the road—say, whether independent developers have the legal right to make tools that interact with a platform without that platform's permission—rather than to take an approach that might undermine your first goal of eliminating pressure points. Anything that can be selectively enforced runs the risk of reinforcing rather than undermining the system. After all, Nixon was also adept at taking laws that were supposed to promote competition and transforming them into weapons. In one conversation captured on the Watergate tapes, aide Chuck Colson told the president that a pending antitrust suit was "one hell of a club on an economic issue that means a great deal to those three networks…something of a sword of Damocles." Nixon replied: "We don't give a goddamn about the economic gain. Our game here is solely political."

Call it Agnew's Law. Some people who complain about concentrated power don't give a goddamn about actually ending it. They just want to change who that power serves.