Media Regulation in the United States
The United States retains a diverse media landscape and strong legal protections for freedom of expression. Nonetheless, a combination of developments has placed journalists under new pressures in recent years, and these persisted during 2014. The most serious problems stem from tensions between press freedom and U.S. national security and counterterrorism efforts. They include government surveillance of journalists, government attempts to compel reporters to reveal the sources of leaked information, and Obama administration policies that severely limit interactions between journalists and officials.
Legal Environment
The United States has one of the world’s strongest systems of legal protection for media independence. The First Amendment of the U.S. constitution provides the core guarantee of press freedom and freedom of speech. While those rights have come under pressure at various times in the country’s history, the independent court system has repeatedly issued rulings that uphold and expand the right of journalists to be free of state control. The courts have also given the press broad protection from libel and defamation suits that involve commentary on public figures, though libel formally remains a criminal offense in a number of states.
In a case that could have important implications for online journalism, Barrett Brown, a journalist and activist, pleaded guilty in April 2014 to charges related to his posting of a link in a chat room; the link led to a file that was publicly available on the internet, but that contained stolen data (obtained via hacking) from Stratfor Global, an intelligence contractor. Brown was not involved in obtaining the data. The Committee to Protect Journalists (CPJ) and other media watchdogs expressed concern over the case, as it could result in the criminalization of linking to documents that were already made public by others in online articles, a common journalistic practice. Brown was awaiting sentencing at year’s end.
Some 40 states have shield laws that give journalists either absolute or limited protection from orders to reveal confidential sources or other information gathered in the course of their work. The federal government, however, offers no such protection, and efforts to adopt a federal shield law have been unsuccessful to date. The latest congressional attempt to enact shield legislation expired in 2014 after the Senate failed to bring the bill to a vote.
Over the past decade, federal prosecutors have provoked a series of controversies by attempting to compel testimony from journalists in high-profile cases, including some centered on government workers charged with leaking information to the media or lobbyists. While some of the cases were initiated by the Justice Department under President George W. Bush, the administration of President Barack Obama has proven even more zealous in pursuing government secrecy cases and issuing demands for information from reporters. Indeed, the Obama administration has brought more criminal cases against alleged leakers than were brought by all previous administrations combined.
In 2013, the Justice Department revealed that it had secretly subpoenaed and seized records for more than 20 telephone lines used by reporters at the Associated Press (AP). The Justice Department also acknowledged that it had secretly subpoenaed and seized the e-mail and telephone records of James Rosen, a Fox News correspondent. Both actions were taken as part of national security leak investigations. After a firestorm of criticism, the department issued new guidelines that significantly narrowed conditions under which the government could gain access to records of journalists’ communications with sources.
In a positive development related to the new guidelines, the Justice Department in late 2014 largely abandoned a lengthy campaign to force James Risen, a New York Times reporter and author of several books on national security themes, to testify about information he may have received from Jeffrey Sterling, a former Central Intelligence Agency (CIA) employee, in the course of researching a book about American efforts to disrupt Iran’s nuclear program. Risen was set to appear in court in early 2015, but it was agreed that he would not be compelled to identify sources or any information they supplied.
The right to access official information, with some exceptions, is protected under the 1966 Freedom of Information Act (FOIA). In one of its first acts after taking office, the Obama administration announced a more expansive interpretation of the law than had prevailed under President Bush. In 2009, the attorney general declared that records should be released to the public unless doing so would violate another law or cause foreseeable harm to protected interests, including personal privacy and national security. Despite this and other pro-disclosure rhetoric, the administration has drawn criticism for its record on transparency. Complaints have focused on the government’s refusal to release many documents concerning national security and counterterrorism issues, and its heavy redaction of documents that are made available. According to an AP analysis, the administration censored or denied a record 39 percent of all FOIA requests in fiscal year 2014. Legislation to reform FOIA practices advanced in Congress during 2014, but failed to win final passage by year’s end, meaning it would have to be reintroduced by the new Congress in 2015.
Official regulation of media content in the United States is minimal, and there are no industrywide self-regulatory bodies for either print or broadcast media, although some individual outlets have an ombudsperson. By law, radio and television airwaves are considered public property and are leased to private stations, which determine content. The Federal Communications Commission (FCC) is charged with administering licenses and reviewing content to ensure that it complies with federal limits on indecent or offensive material in terrestrial broadcasts. While the judiciary has declined to issue a broad ruling on the FCC’s authority to regulate indecency on the airwaves, recent decisions have chipped away at the agency’s power.
Although the government does not restrict political or social engagement over the internet, there are laws banning or regulating promulgation of child-abuse images, exposure of minors to indecent content, dissemination of confidential information, online gambling, and the use of copyrighted material.
In 2013, former National Security Agency (NSA) contractor Edward Snowden’s revelations of extensive surveillance by the signals-intelligence agency generated widespread criticism of American policy, from both domestic and foreign sources. Civil libertarians and press freedom advocates pointed to the potential effect of the data collection on the rights of Americans, and free speech organizations asserted that the surveillance revelations were causing writers to practice self-censorship. In late 2014, Republicans in the Senate blocked legislation that among other things would have restricted the NSA’s ability to engage in bulk collection of metadata from Americans’ phone calls and other communication records. However, the law authorizing the activity was set to expire in mid-2015, meaning the issue would likely be revisited by the new Congress.
Political Environment
While self-censorship among journalists remains rare in the United States and official censorship is virtually nonexistent, an increasing number of news outlets are aggressively partisan in their coverage of political affairs. The press itself is frequently a source of contention, with conservatives and liberals alike accusing the media of bias. The appearance of enhanced polarization is driven, to some degree, by the influence of all-news cable television channels and blogs, many of which display an obvious editorial slant. The popularity of talk-radio shows, whose hosts are primarily conservative, has also played an important role in media polarization. Nonetheless, most U.S. newspapers make a serious effort to keep a wall of separation between news reporting, commentary, and editorials. The long-term trend toward fewer family-owned newspapers and more newspapers under corporate control has contributed to a less partisan, if blander, editorial tone. Most terrestrial broadcasters and major news agencies similarly avoid partisan reporting.
The Obama administration has come under fire for effectively limiting journalistic access to federal officials, as well as official events. The president held fewer press conferences in his first term than did his predecessors, although the rate of these conferences increased in 2014. He also favors interviews with friendly media to present his perspective to the public. Journalists have complained of an environment in which officials are less likely to discuss policy issues with reporters than during previous administrations, noting that “minders” representing the administration often sit in during meetings involving reporters and federal officials.
Since the terrorist attacks of 2001, journalists have had mixed success in gaining access to proceedings and facilities related to counterterrorism, including the military detention facility at Guantanamo Bay, Cuba, where over 100 detainees continue to be held. The military and the courts have typically granted accommodations that represent improvements on the initial restrictions, but that still make full and effective coverage a challenge for reporters.
While foreign journalists are generally able to physically cover news stories with few impediments, from time to time there are cases of foreign journalists being denied entry to the United States, usually on the basis of vague national security rationales. In September 2014, Jordanian-born poet Amjad Nasser, who is also an editor at the London-based newspaper Al-Quds al-Arabi, was barred from a flight to New York, where he was to speak at a literary event. Separately, the authorities in some jurisdictions have denied press credentials to those representing nontraditional media.
In recent years there have been few physical attacks on journalists in reprisal for their work, and none were reported in 2014. However, journalists covering demonstrations or other breaking news events are occasionally denied access or even detained briefly by police. In 2014, reporters encountered an unusual number of abuses during protests in Ferguson, Missouri, over the death of Michael Brown, an unarmed, 18-year-old black resident who was shot and killed by local police in August. The PEN American Center noted at least 52 alleged violations of press freedom surrounding the demonstrations, including 21 journalists arrested, 13 threatened verbally or with weapons, and 7 incidents in which journalists were assaulted or hit with crowd-control devices such as tear gas and rubber bullets. The group’s analysis concluded that on numerous occasions, the police deliberately attempted to obstruct news coverage. Local law enforcement also reportedly asked the Federal Aviation Administration (FAA) to impose a no-fly zone over Ferguson in order to hamper media coverage; the request was granted for 11 days in August. There were few claims of interference with journalists during subsequent demonstrations in New York, the scene of another controversial death of an unarmed black suspect at the hands of police, or in other cities where similar protests took place during the latter part of the year.
Economic Environment
Media in the United States are overwhelmingly under private ownership. Nevertheless, National Public Radio (NPR) and television’s Public Broadcasting Service (PBS)—editorially independent networks that are funded by a combination of government allocations and private contributions—enjoy substantial audiences. Meanwhile, cable television providers in some markets carry a variety of foreign news sources, including Al-Jazeera America, the British Broadcasting Corporation (BBC), Spanish-language services, and state-controlled television channels from Russia and China.
Traditional media, including print and broadcast outlets, have suffered financially from the increasing popularity of the internet as a news source. The newspaper industry in particular is undergoing a period of decline and readjustment. There were an estimated 1,300 daily newspapers, geared primarily toward local readerships, in circulation in 2014—a record low. The Newspaper Association of America reported in 2014 that overall newspaper revenue had declined by 2.6 percent in 2013 compared with the previous year, and an October 2014 analysis from the Brookings Institution found that total advertising revenue for newspapers had fallen by nearly two-thirds since 2000.
Even the largest and most prestigious papers have faced falling print circulations and advertising revenues and been forced to cut staff. The New York Times announced in September 2014 that it was cutting 100 newsroom jobs and several more administrative positions, representing a 7.5 percent decline in its newsroom staff. The Wall Street Journal and USA Today also eliminated dozens of newsroom positions each in 2014. To compensate for reduced staff, many outlets are increasingly turning to freelance journalists. However, a survey conducted by Harvard University in 2013 concluded that employed journalists are more likely to be granted press credentials than are freelance journalists. Most newspapers have rebalanced their operations to emphasize website and multimedia content. A few have dropped print editions entirely, while others publish only a few times a week. Financial weakness has affected outlets’ news coverage as a whole, but particularly their ability to conduct investigative reporting and cover foreign news, which require considerable resources. It has also led to increased pressure from advertisers and the growing use of “sponsored content.”
A number of prominent city and state newspapers have folded in recent years, weakening the media’s ability to provide scrutiny of local affairs, ferret out corruption, and ensure accountability in government. A July 2014 study from the Pew Research Center revealed that there had been a 35 percent decline in the number of reporters assigned to statehouses across the United States since 2003. Less than a third of local newspapers and just over 14 percent of local television stations assign any reporters to cover the statehouse. Nonprofit online outlets, financed by grants and donations and staffed by veteran local reporters, have emerged in response, though most struggle to attract funding and establish readerships on par with former print publications.
Similarly, to combat the broader decline in investigative journalism, philanthropic foundations have sponsored projects that focus on in-depth coverage of education, criminal justice, and corruption issues. For example, ProPublica was established in 2007 as a nonprofit, independent news agency dedicated to investigative journalism; it is financed by a variety of foundations. In 2013, Pierre Omidyar, billionaire founder of the online auction site eBay, created First Look Media, composed of a nonprofit media and investigative journalism site as well as a profit-seeking “media concern” whose proceeds will support independent journalism. While such initiatives have helped to fill the vacuum created by the deterioration of newspapers, questions have been raised about the long-term sustainability of enterprises that depend on large private donations. These projects have also featured clashes between career journalists and the managers selected by wealthy donors who have little experience in the news industry.
Both local television stations and major cable news channels remain profitable, despite a recent slump in viewership for the latter. And overall, television continues to enjoy dominance as a medium of news consumption. However, most Americans get their news from a variety of devices and platforms. Approximately 87 percent of Americans used the internet in 2014, and the number and influence of news-focused websites and blogs have grown rapidly over the past decade. Social-media platforms such as Twitter and Facebook have also gained prominence as a means of breaking news and mobilizing public opinion on political and policy issues. Sites like BuzzFeed and Mashable have taken steps to improve their journalistic credentials, while Vice News, a relatively new online venture, has quickly established itself as a source for international news.
Media ownership concentration is an ongoing concern in the United States. Pew reported a spike in local television station sales in 2013, including the purchase of 63 stations by Sinclair, already the country’s largest owner of local stations. At the end of 2013, Sinclair owned 167 stations across 77 markets. Mergers and acquisitions of local stations continued in 2014, though the number of outlets changing hands declined to 171, from nearly 300 in 2013. While they are prohibited by FCC rules from owning more than one top-four local station in any one market, many media companies have flouted these restrictions through “joint service agreements,” which allow them to operate stations that are owned on paper by others. The FCC in March 2014 enacted a new rule to curb the practice, holding that responsibility for selling 15 percent or more of a station’s advertising time amounts to an ownership stake. | 
