I recently helped my colleagues Adam Thierer and Berin Szoka on a short essay rebutting the misguided notion that the government should grant postal subsidies to "old media" enterprises to help them survive. One of the arguments, of course, is that the state should perhaps not be propping up an old way of doing things (i.e., printing news on dead trees and spending physical and environmental resources shipping it around the country), when new and better ways are emerging. In the course of working on that paper, it occurred to me that maybe the time has come to scrap the entire U.S. Postal Service, but the thought was too far removed from the focus of the essay, and I let the idea go.

Recently, however, I've been forced to return to it. Although I am admitted to practice law in Pennsylvania and D.C., I am not admitted in my new home state of California. As I have become more involved in my small mountain community, I have been approached on more than one occasion to help a friend or associate in some way that could conceivably be regarded as the "practice of law." My wife, who is a California lawyer, has also recently opened a solo practice in town, and it would be nice if I could assist her from time to time, as the need arises. The only thing to do, it seemed to me, was to take the California Bar exam and become a member here as well.

A recent story in the National Law Journal (3/2/2010) about the FCC's on-going broadcast ownership proceedings includes this gem from Free Press Research Director S. Derek Turner, "The [cross-ownership] ban remains vitally important. Lifting it would mean consolidation and cutting reporters - less local news and less diversity of opinion." Perhaps Mr. Hunter has not noticed, but maintaining the ban on the common ownership of newspapers and broadcast stations has not exactly been a boon for journalists.

Stories about newspapers closing, broadcasters eliminating news departments, and journalists being laid off have become commonplace, but because there a few diehards like Mr. Hunter who want to continue to believe that stand-alone news operations can thrive in a highly competitive and fragmented media market, here's one more: The LA Times reported this week that ABC News plans to close all of its news bureaus (except in Washington) and to halve the number of its domestic correspondents.

Yes, indeed, Mr. Hunter, we all should be shaking in our shoes that the monolithic ABC News is a threat to diversity and will likely come to dominate everything we hear, see, and read if we're not careful. Citizen Kane? Citizen Kan't is a more appropriate description. It is not 1970 any longer, and there is no threat now or on the horizon that any single news operation or organization will be able to control the flow of information in America.

To the contrary, it is precisely the inability of any one organization to aggregate sufficient paying users to support a full-fledged journalistic operation that is killing the news business. There can be no assurance that eliminating the newspaper-broadcast cross-ownership ban would do anything to stem the bleeding, but isn't it worth a try? Why not allow an organization like ABC News to experiment with a different business model based on repurposing content across platforms? More fundamentally, is it not a core First Amendment concern when government rules are actively suffocating news organizations? Should not an organization like Free Press be outraged that the government will not, in fact, allow the Press to be Free? I know I won't hold my breath.

At a PLI workshop on cable regulation yesterday, I made the comment that I was discouraged that the new "data-driven" FCC has, if anything, expanded the use of public hearings in its rulemaking process. Expert agencies, I pointed out, should be about substance and not show - if we really want to turn the important questions that the FCC has to deal with into political questions, we should at least have them decided by Congress directly - a body that does have to answer to the voters - rather than by a group of unelected bureaucrats.

That is not to say that there is anything wrong with going outside of Washington to seek input from others who might actually have something important to say about particular issues. To the contrary, upon reflection, one probably could go beyond the Beltway and hold public hearings that would actually be useful in developing substantive policies. The focus would necessarily be on getting actual experts in engineering, economics, law, and business to educate regulators about the implications of given policy choices.

The problem is that the FCC typically has not run its public hearings in a way that is so focused on substance. Instead, the FCC hearings are set up as if they are holding a popular referendum on the policy in question. I have the highest regard for the American public, but the fact is that the issues the FCC has to deal with are highly technical, subject to arcane legal standards, and involve layers of services that are mostly invisible to the average user. Indeed, even for those of us who have worked in these areas for many years, the issues confronting the FCC often challenge our understanding of the services and technologies the in question. In short, these are not questions appropriate for popular referenda.

As I also said at the PLI conference, I am cautiously optimistic that this FCC will get away from policy-making based on ideological bias and back to a more serious and professional approach to its statutory duties. I can only hope that this change will be reflected in the way it conducts any future field hearings that it conducts.

There is an essay in the February 8th edition of Newsweek by Dahlia Lithwick in which she lauds a Justice on South Africa's Constitutional Court for taking an openly personal approach to the judicial function, and castigates our own Supreme Court Justices for aspiring to "be machines" that just "call balls and strikes." ("The View From the Bench: Why Judges Should Get Personal") I stumbled upon this article just after hearing a local news reporter interview a Super Bowl official from my area who had recently returned. In the interview, the reporter wondered how NFL officials can possibly remain impartial -- "they must," the reporter opined, "have favorite teams after all."

I don't know if Ms. Lithwick is a football fan, but she ought to think about how the NFL would operate if my local news guy was right. If, on any given Sunday, the officials operated as adjuncts to one or the other of the teams on the field, chaos would ensue. No fan of the sport could have any confidence that superior skill on the field would necessarily translate into victories, teams would have an incentive to "invest" in officials, and players could have their careers negatively or positively affected as much or more by their personalities than their athletic ability. In short, the NFL (or any contest that we expect to be decided on the merits for that matter) could not function absent neutral rules applied impartially.

It is stunning that presumably educated people such as Ms. Lithwick can have this very basic concept to slip through their mental grasp. Our fundamental freedoms and the equal protection of the law depend upon 1) the establishment of rules that apply with equal force to all similarly situated people and 2) when disputes arise regarding their application, it is arbitrated by a disinterested party who in good faith aspires to decide the dispute on the merits rather than his or her own predilections. Indeed, the first principle (neutral rules) means nothing absent the second (a neutral judge of behavior pursuant to those rules).

It is for precisely these reasons that we demand that government officials (including judges and Justices) disclose any financial or other interests that they might have that would prejudice their conduct or decision-making, and that we ask those who may have a personal interest in a case or matter to recuse themselves. People are people, after all, but we hope that we can insulate their personal interests sufficient to allow them to "call balls and strikes" impartially.

The scariest aspect of Ms. Lithwick's essay is that she not only seems to reject that model, but that she does so in the belief that somehow it would help those less powerful (the proverbial "little guy") if judges took their cases more personally. The little guy's best hope is instead a level playing field. Those who control the levers of power, if allowed to operate consistent with their own biases and interests, will do nothing but cement that power. Ms. Lithwick's model is a recipe for ensuring that the little guy is forever on the outside looking in.

This is true liberty, when free-born men,
Having to advise the public, may speak free,
Which he who can and will, deserves high praise;
Who neither can nor will, may hold his peace;
What can be juster in a State than this?

For over two thousand years the principles underlying our First Amendment protections for free speech and free thought have been the hallmark of just and free societies. Indeed, the advance of civilization is one marked by progress on a path away from state control of speech and thought toward private autonomy in the area of ideas and their communication. It comes as no surprise that the most repressive regimes and movements included among their tenets the suppression of seditious or heretical thought, from the Inquisition of the late Middle-Ages to the most anti-democratic governments of the 20th Century.

By contrast, for over two hundred years, our Constitution has provided the most rigorous bulwark the world has ever known protecting the free dissemination of ideas. It certainly is not always a comfortable fit; the safeguards sometimes protect speech or speech-conduct that is repulsive to many. But there can be little doubt after more than two centuries of our Constitutional experiment that liberty and justice are served by more, not less, freedom of speech.

For that reason, the FCC's recently announced inquiry into "the future of media and information needs of communities in a digital age" should make the stomachs of civil libertarians everywhere queasy. Of course the Public Notice of the inquiry is dressed up in all of the usual public interest language. The Commission purports to be interested in protecting good journalism, promoting a diversity of information sources, and expanding the opportunities for a vibrant debate of public issues. We have no reason to doubt the sincerity of those representations, or of the FCC's claim that it will consider First Amendment concerns first and foremost as the inquiry proceeds.

The Annenberg School at the University of Southern California has released a paper by Geoffrey Cowan and David Westphal suggesting yet again that the government should more heavily micromanage, and fund, the news media. I am reluctant to belabor the particulars of the proposal (which must necessarily include increased regulation, direct and indirect funding for journalists and news organizations, and a variety of bureaucratic mechanisms to administer the government's oversight of media), but little of it is new and all of it is scary.

The paper is premised on the notion that the government has for many years and in many ways subsidized and/or regulated the news media, and it concludes that enhancing those efforts will forestall the decline of news and information media. The paper fails, however, to: 1) grapple with the question of whether those earlier efforts helped or hindered the media; 2) address the fundamental question of whether there is some systematic reason that news and information services cannot survive on their own merits; and 3) provide a satisfactory answer to the question of whether government entanglement with the media is consistent with a free society.

On a technical level the paper provides a short and somewhat selective history of postal subsidies and tax incentives that have one way or another benefited various forms of publication over the past two centuries. It also covers in cursory fashion federal regulations that have had an impact on purveyors of news and information. Again, the question it never asks or answers, however, is whether the government's meddling on the periphery of the news business was helpful or harmful -- it merely assumes the former. Superficially, this does not seem an unreasonable assumption. But as much as a crutch can help one stand, it can also slow one down in a race. I, at least, am not at all convinced that the government's "assistance" to the media has been a positive force over time. Indeed, some of the media's current problems may well result, at least in part, from past government policies that were intended to benefit the media or to otherwise improve the quality of news and information services provided to the American people.

North Dakota Senator Byron Dorgan has announced that he will not seek re-election to in 2010. To be candid, I will not be one of those sorry to see him retire.

The Associated Press identifies Senator Dorgan as a "moderate." I have no idea the basis for that assessment but, to the contrary, and in my experience, he was one of the most reactionary members of the Senate on media issues. Like a few of the FCC Commissioners past and present, Byron Dorgan seems unable or unwilling to come to terms with the revolution that has occurred in the media markets as a result of digital technology.

While most of us worry about how serious media enterprises will survive in an age when audiences are badly fragmented, serious journalistic efforts cannot find paying customers, and high quality entertainment programming has effectively become a loss leader for anyone still investing in it, Senator Dorgan spent his time in the Senate trying to obstruct any and every attempt to modernize the FCC's outdated broadcast ownership rules. Indeed, in his efforts to keep the FCC's media rules mired in the 1970s, Senator Dorgan was not above empty rhetorical flourishes, and one in particular stands out in my memory.

Most notably at one Senate hearing, Senator Dorgan related the story of a train wreck that occurred near Minot, North Dakota, and the supposed failure of the local radio station (which was owned by Clear Channel, a national radio concern) to respond to calls from local public safety authorities. In Byron Dorgan's version of the event, Clear Channel didn't really care about Minot and its residents, and the station was not staffed at the time of the incident but was instead broadcasting using "voice tracking" (essentially, canned programming recorded elsewhere or at another time).

If one spends just a few minutes to get to the underlying facts, though, one would find that the incident didn't quite happen that way. In fact, as the then-CEO of Clear Channel explained in a letter to Senator Dorgan, the station did have full-time staff on duty at the time of the incident, but the local police were unable to get through to the station because they used an outdated emergency phone number rather than the automated emergency response system (which had been in place for several years). As a result, the police calls were forwarded to the station's switchboard, which was then, of course, being flooded by calls from residents reporting the accident or seeking information.

As for their supposed indifference to the community, other station personnel began reporting for work on their own accord as they learned of the wreck. In an effort to ascertain the extent of the accident and to discuss an appropriate emergency message for residents, station personnel made their own efforts to contact local public safety officials. Unfortunately, police and fire phone lines also were flooded with calls from residents, so the station was not able to get through. Finally, and after the fact, a station engineer discovered that the Minot police had changed the emergency broadcast frequency they used without notifying the station. Thus, if anything, the tale of the Minot train wreck is a tale of incompetent local public safety officials, not one of the dangers of so-called "Big Media."

But the Minot train wreck made a good story and, in Washington politics, that's all that matters sometimes. Let's hope we've heard the last of it now that Senator Dorgan has elected to retire.

The Washington Post is not known for its antitrust skepticism, so it is to be commended for its even-handed editorial last week regarding a recent FTC action against Intel, one of America's great technology concerns ("Keeping Competition, and Intel's Prices, in Check," Dec. 27, 2009).

The FTC, apparently unable to make a substantial antitrust complaint stick against Intel, has instead brought an administrative complaint against the company under Section 5 of the FTC Act. According to the FTC's Chairman, Jon Leibowitz, the standard required to sustain out a full-blown antitrust case are just a little too rigorous, so the Commission is taking something of a short cut. As the Post concluded, the approach is, to say the least, "potentially worrisome."

To be fair, Section 5 does, as a legal matter, give the Commission authority beyond that which is conferred by the antitrust laws. But as a practical matter, the Commission's past efforts to read its Section 5 authority expansively have been rejected by the courts as excessive. This seems just another such case.

Oddly enough, the conduct that so troubles the Commissioners involves discounts that Intel has given its customers in order to retain market share, i.e., Intel is charging too little, the FTC believes, for its microprocessor chips. Of course there is a prohibition on "predatory" pricing encompassed within the antitrust laws, but the showing required to make out such a case is quite substantial - deliberately so in order to ensure that only conduct that is harmful to consumers is proscribed. The FTC apparently is not content to live by that standard.

More troubling still is that the FTC is considering potential "remedies" that are, in the words of the Washington Post, "disconcertingly intrusive." Indeed, as the Post warned, the remedies being considered may actually lead to higher prices for computer chips and, accordingly, higher prices for consumer electronic equipment that employs such chips. As a consumer, forgive me for not feeling protected by the FTC's rash action.

The proverbial "other shoe" is slipping. Many of us have been warning for years that the traditional advertising model for "old media" simply will not sustain it against the tide of new competition. We've already seen the damage done in the newspaper industry, as paper after paper has cut staff or ceased operations.

Indeed, just last week there was yet another story about the "Old Gray Lady" celebrating the Christmas season by laying off another dozen or so newsroom staff. And contrary to the claims of a few who would like to blink reality, these cuts were not occasioned by the debt load of the New York Times, but by a historic decline in advertising revenues -- the newspaper's advertising revenue fell by 30 percent through the first nine months of the year, which followed a decline of 12 percent in advertising revenue in 2008.

Broadcasters, too, are feeling the pinch. Notably, Pepsi has announced that it will not buy advertising time during the biggest broadcasting event of the year -- the 2010 Super Bowl. The Super Bowl is, if you will pardon me, the "Super Bowl" of television advertising each year. A 30-second spot last year cost $3 million on average, and Pepsi alone bought nearly $15 million of time during the broadcast. This year the company will focus its marketing efforts on new media, including a large dose of online advertising.

Can those who would continue to saddle old media with outdated and anticompetitive regulatory restrictions continue to ignore the symptoms of illness when they are so starkly manifest? It is long past time to liberate traditional media businesses from the rusty old regulations that shackle them, and allow these important cultural, educational, and social enterprises to compete with their new foes on a level field. That would entail, first and foremost, affording them full First Amendment rights and eliminating archaic ownership restrictions. The "other shoe" is slipping -- we had better do something before it drops.

Several of us have cautioned against inviting the government to regulate broadband services because of the dangers of regulatory creep. Once the government has its regulatory claws in the flesh of a service, neither cost, common sense, nor custom will restrain it.

Congress has regulated broadcasting for eighty years. That regulation started, of course, simply to deal with interference between and among various stations. It has since expanded to include, just by way of example, a prudish regulation of content the government regards as indecent, rate ceilings for advertisements by the ruling class (i.e., political electioneering spots), and a failed attempt to dictate what is "fair" and "unfair" when it comes to the coverage of controversial issues.

But regulatory meddling along the lines just mentioned at least involves matters of some weight. A bill just passed by the House demonstrates that there are no practical limits to such meddling and that no matter is too inconsequential when it comes to state oversight of an industry. Congress now, we have learned, wants to regulate the volume of broadcast advertisements.

The bill is the brainchild of Congresswoman Anna Eshoo (D-CA), who apparently is offended that some televised advertisements are louder than the programs that precede them. Now the whole effort is silly, to say the least, and volumes could be written on just how nonsensical it is. How, for instance, does anyone know what the metaphysically correct volume for an advertisement is? Must the volume of an exploding bomb to be the same as that of a whisper? More fundamentally, is this really a national priority? What effect will this have on something that might actually be important in a rocky economy, such as job losses in an already struggling industry? One could go on seemingly indefinitely asking questions probing for some inkling of serious import in this bill, but that effort, itself, would be senseless.

There is a larger point, however, that is worth highlighting. The Eshoo bill points out just how nitpickingly insidious government regulation can become. That's why I am astounded that commentators and groups who purportedly care about free speech would be so willing to ask for government regulation of the Internet - the great modern engine of liberty and free speech.

Whatever its faults, the market responds pretty quickly when private enterprises behave in ways that a significant number of people find offensive or inappropriate. The same cannot be said for the State. If the government starts regulating the Internet, and it starts getting it "wrong" or overstepping (which Rep. Eshoo's bill suggests is all but inevitable), it will be near impossible to rein it in. The greatest threats to free speech are not from companies that provide services in response to public demand, but from the levers of state power manipulated by those who are sure they know better than the rest of us what content we should or should not be able to access, how we access it, and just how loud it should be.