American Media Policy For Citizens and Speech:
The H.E.R.M.E.S. Act and Related Legislation

The American media environment is broader than it ever has been. There are more channels on television, internet growth skyrockets on a monthly (even daily) basis, newspapers still serve vital roles in most American localities, and radio is vibrant on the AM, FM, and now satellite dials. It is a wide spectrum of choice that is primarily entertainment and for-profit All of this is an outgrowth of the First Amendment to the Constitution and, more importantly, Supreme Court decisions that have interpreted free speech and free press rights more in terms of a property right than of a right for a democratic citizenry to be adequately informed. This narrow and restrictive interpretation has created an ownership phenomenon within the media industry that has fundamentally decimated competition of ideas and the ability of news to serve the public interest while conversely creating vast media empires. Most notably, little of this landscape is free media; money drives access. As the gap between rich and poor grows, this is of great concern to democratic theorists and tangible social justice.

There is a definite place for the for-profit media that we know as entertainment. But as McChesney and other have demonstrated, the rise of the media conglomerate has subordinated the public interest relative to the First Amendment’s goals in favor of profits and competitive advantage. The news media, ideally a fourth estate of government providing check and balance and connection to the people vanishes in this environmental and structural reality.

So, what about the news media? If what we call the free press is merely a concomitant of for-profit entertainment media, is democracy helped? Are citizens better off for it? Most public opinion polls and anecdotally informal polls of this media class demonstrate that the news media is failing us; that democracy is not being enhanced, public debate not being broadened, and that an informed citizenry is not being created or even given the chance to emerge. In order to create a news media that will serve the public’s interest and the goals of democratic civilization it is important to know what the role of the news media ought to be in our republic and what its current configuration is. In identifying how it functions, it will become clear why the current state of affairs fails democracy and the public’s right to know.

In simplest terms, a healthy news media should serve the interests of creating a healthy, informed, intellectually robust and diverse democratic citizenry. Anything short of that goal is a waste of the First Amendment, its full purpose, and of the media technology we now have at our disposal. More specifically, a healthy news media should derive its cornerstone operating principles from the liberal understandings of free expression. As Thomas Emerson outlined in the “Function of Free Expression in a Democratic Society” the news media (relative to the conept of free expression) should be a method of attaining the truth and of self-fulfillment, of participation in decision-making, and to achieve a balance between stability and change. In the current media environment some truth may be discovered, but participation in decision-making does not seem to be enhanced, nor is there a balance between change and the status-quo. The current iteration of the news media fail three (possibly even the fourth) function of free expression which is so fundamental to the functioning of a democratic state.

In practical terms, a healthy news media would be decentralized and broad enough to serve the competing functions of watchdog over government as well as powerful interests of the private sector, of a neutral transmitter of objective facts, as a marketplace of ideas, and of public sphere journalism designed to activate public participation in political activity. These contradictory and competing functions of the news media would enable the goals of free expression to be realized in the ideal democratic state. Sadly, the current state of the media fail nearly all these criteria. Centralization and similarity are the hallmarks of the current news media, not the exception.

Much study has been made of the news media in recent years. Many theories have been proposed to explain media behavior and outcomes. These theories all prove the point that the media does not serve the public interest as defined in this paper.

The ‘indexing phenomenon’ of Lance Bennett underscores the nearly unidirectional nature of news coverage. The emphasis on official sources of the news creates a reporting that is lazy and slanted toward power-elites with little exploration of ciritical issues from perspectives other than those in government or power politics. He goes on to identify professionalism standards that create scripts in the news reporting which generate their own story-related biases. This professionalism is further examined by Robert McChesney, who shows convincingly that the routines and practices of reporters as taught in journalism schools often leads to the indexing effect and creates a news homogeneity. This is because jouranlists across different news organizations tend to have a shared sense of what is news and tend to be very reluctant to make the news themselves. McChesney also argues that the economic management and structure of the news itself is reponsible for a poor news media. This point will be returned to below.

The last scholarly example that underscores the previous examples is ‘event-driven news’ as explored by Regina Lawrence. This phenomenon explains how certain unexpected events like the filming of the Rodney King beating or disasters such as hurricane Katrina can upset the normal news practices of journalists and provide opportunities to examine new ideas or even for the public itself to create news frames. This event-driven news provides evidence for the ‘cascading news model’ of Robert Entman, who elaborates on the indexing model of Bennett. Here he argues that news frames are infrequently generated from the public and sent up to the officials who typicallly set news agendas. The event-driven news model – specifically its low frequency – underscores the disconnect between the public and the officials who govern in their name.
These studied phenomena of the news media are all instructive. While they are interesting and help us understand how the news media operate and how the product we know as news is created, they do not help us understand how this broken system got this way, nor provide a solution to the problem of the media. For that, we must turn to Michael Walzer and the Supreme Court.

In Spheres of Justice political scientist Michael Walzer reflects on the nature of democratic society. Citizenship is like a membership card to a club. That membership provides you with certain benefits, like protection from invaders (national defense), property rights, rule of law, health and welfare, equal opportunity, and so forth. He elaborates that in order for these fundamentals to be realized (just like the political goals of free expression outlined above) that each intrinsic aspect of democratic society must be left to reign within its own sphere. The sphere of justice is the constitutional framework and the one that controls all others. Within the sphere of justice are individual spheres like a free press, medicine, education, and, naturally, private property and money. Within the sphere of justice and in order to preserve it, one sphere should not control another, else the fundamentals of democratic justice and society begin to break down. For Walzer, money has been permitted to control spheres like medicine to the detriment of all.

Walzer is right and the sphere of money not only controls more than it ought to in a democratic society, it controls the free press – our news media. If the news media is the nervous system of democracy, then the sphere of money has become a cancer of the nervous system. How,then do we restore the balance? How does money take its proper place and a free press become the servant of the public interest?

We must begin by providing guidance to the courts. The approach of the courts generally and the Supreme Court specifically has been to read the First Amendment in light of property rights and of the prohibition of any laws restricting those rights. But the phrase “Congress shall make no law…” must be interpreted to include the key word “abridging”. Congress must indeed be given latitude by the courts to create laws that do not restrict freedom of the press and of expression. Instead Congress should be unincumbered to enact laws that incentivize the creation of more media outlets, codify safeguards for the public interest over property ownership, create greater competition (both public-private and private-private), and set limits on ownership and consolidation. Some effects that Congress should hope to see in passing such laws will be to increase the scope of voices heard in the news media, the breadth of coverage, and opportunties for the public to be a participant and shaper of the news media environment.

Such guidance to the courts should be given in the creation of a major piece of media legislation. Just as the Greek gods could not operate without Hermes acting as intermediary and interpreter for the others, a vibrant media cannot exist without legal definitions to outline the environment and legislation to make the environment a reality. In the spirit of the vital function of Hermes to the gods, this act would be named in his honor. In an unspoken way this title frames the public as the gods and the media its servant. Its ensured survival will be the result of a constitutional amendment.

The H.E.R.M.E.S. Act (Human Enlightenment and Resurgent Media Environment Statute) will address the central problem of the news media: corporate ownership. The first section of the act will define concretely the defintion of the public interest and the purpose of free expression (already defined above). These will help set the parameters by which the Congress, the courts, and private ownership of news media can operate. These definitions will help illustrate the need for government to be an incentivizing hand in the promotion of democratic communication and information goals. Congress will write into the act a clear statement of legislative intent: the First Amenment to the Constitution will be interpreted to mean that “Congress shall me no law…abridging” but shall make as many laws incentivizing free press, open press, and free expression as it deems appropriate and helpful to the realization of the public interest fucntion of a news media.
The second function of the act will be to establish ownership limits on various media. Breakups of the major media corporations will be primary, followed by the establishment that there can be no coporation with control of the American media market in excess of nine percent. Any company that grows to exceed this percentage will be forceably broken up.

Additionally, companies will be prohibited from owning more than two kinds of media in any given market location (the definition of a media location will be part of the FCC policy making fundction). FCC commissioners will be appointed by the President as before, but in accepting their appointment they will be prohibited for a period of fifteen years from working for or engaging in media business activities. Furthermore, any FCC official that is found to have received cash, gifts-in-kind, or other incentives from media companies will be subject to a fine of $300,000 and a minimum prison sentence of 10 years, if convicted.

The third function of the act will be to create publicly-owned, politically independent, non-commercial news media. Three publicly owned national broadcast stations will be established each with a different purpose. The first will function to report on general news of public importance and seek to fulfill the neutral transmitter role. The second will be tasked to function as an investigative news specialist (think of: a ‘Frontline’ network 24-7). The third would be a retooled PBS whose news functions would move to the other two networks. This third station would service the general educational and scientific interests of the public. In addition, this act would create two news magazines whose functions mirrored the functions of the first two television channels.
To keep political influence to a minimum, the Corporation for Public Broadcasting will be remade into the Corporation for Public Media and its board will be appointed by the President for five year terms to alternate between presidential election cycles with a 2/3 super-majority required by the Senate for confirmation. The intent of this act will be part of its charter and the members of the corporation will be required to swear an oath to uphold the principles of the HERMES Act.

Fourth, the act would provide tax incentives for news media outlet creation. Any individual or group of individuals wishing to create a newspaper, television, internet, or radio news program in a local market will be provided with tax abatements for a five-year term if the FCC grants a license. FCC licensing for broadcast spectrum will be made easier for organizations that can clearly demonstrate that they will or have historically served the public interest and of democracy. In addition broadcast spectrum will be defined more clearly as entertainment media and news media. Those holding news media licensure will be prohibited from holding entertainment media licenses concurrently. Existing news license holders not deemed to be serving this function will have their licenses revoked. The standards for this revokation will be defined by the FCC commissioners.

Fifth, the federal government would deem internet access provision a commons like water, air, and broadcast spectrum. It would create a national network of internet switching servers and free wi-fi internet broadcast connections in all cities with populations greater than 10,000. Coordination with local and state government would enable national roll out and installation within ten years. Greater access would mean greater opportunities for information exchange and democratic debate. Privatizing this resource would mean that only the haves could know and the have-nots would become disadvantaged citizens.
Sixth, the act would set aside bandwidth for at least four public access channels per broadcast market in the U.S. This would ensure that the public could have a forum in which to voice itself in as maximizing a way as possible.

The HERMES Act would certainly create a much broader and wider number of competing voices. It could be argued that this would simply create an environment with so much going on that it would be difficult to hear amidst the competing voices. Athough there is likely to be some validity to this statement, the goal here is to reorient the nervous system of society from its pleasure centers to its brain, if you will. Currently it is quite difficult to find a comprehensive view of the world in our news media. Efforts must be taken to become informed in a wide sense. Wouldn’t it be a great event in the history of this republic if it were as easy to find good, quality news and food for the mind as it was to find entertainment?
Liberal capitalists have argued that competition is good for invention, good for debate, and provides the only real incentive for positive change. This paper argues in agreement with that historically proven assertion. However, the current media environment finds itself consolidating with greater degrees of monopolistic practices. The huge media companies that have infected the news media so vital to democracy are centralized like a Soviet state enterprise. They are driven for profit not the public interest. This bill helps reinvigorate competition by redrawing the playing field, incentivizing the creation of new channels of public expression, and preventing such monolithic media ownership from contaminating the news media with profit motives.

The final move to ensure that the private money sphere does not contaminate the free press or any other legitimately critical sphere of democratic society would be the passage of the Public Finance Election Amendment. This amendment would establish public financing for all political campaigns for federal office holders and would prohibit the donation of money or services of any kind from individuals, interest groups, and corporations. In doing so, we would not only rescue our political system from oligarchy and corruption but ensure a vibrant media. The sphere of money would be taken out of the media and out of our government.
The logical connection between public financing of federal races and the press is simple. Politicians that are financed by the taxpayer alone are beholden to the taxpayer alone. The cozy relationship men like Noam Chomsky outlines between corporations, politicians, and the media would no longer have grease to help it function when the money of political campaigns is taken away. The synergy of corporate influence on the legislative process and the media is broken for our collective betterment.

Once political funds are reconnected to voters, real voices and real ideas will enter mainstream politics again. We will have the opportunity to prevent meddling in FCC policy by corporations. We will open the door to a new and more invigorated news media landscape. A landscape shaped by the HERMES Act. A landscape with news media serving citizens, watching politicians, and connecting them both.
American democracy, in the words of the founders, was the great experiment. It is an unfinished piece of work. We are the generation obligated to carry on the creation of ‘a more perfect union.’ The nervous system of the republic, our news media, is contaminated by the influences of profit-driven media corporations who structure the news and the professional standards of newsmaking to their ends, not those of the public interest. The HERMES Act will get us most of the way there. Even if it will need modification, its goals and the legal definition of the public interest will help future generations focus on the goal of creating a news media system that works in furthering the health of this democracy. Its fundamental contribution may simply be to redefine the media in terms not profit related and to give future Congresses the incentive to act on behalf of the citizen and the public when creating First Amendment policy. Publicly funding elected offices at the federal level will help ensure that dream cannot be snatched away again by the sphere of money which seeks to consume all that it can get within its grasp. We can make the private sphere of money our tool for betterment, just as we can make the sphere of the news media independent, healthy, and competitive once again.

The future of republican government depends on ensuring the health of the media and its service to the public. The HERMES Act may be the answer. Not to act, however, is a recipe that only serves to erode the foundations of self-government. The founders tried to get it right with a simply worded First Amendment. We can create a media environment that strengthens democracy. The problem is identified. The solution is in our hands. Now we must strike with the speed of Hermes to create a democracy the founders, our secular gods, would be proud of.