Media Concentration: Giving Up on Democracy

Abstract

The permissibility of media concentration, limited only by antitrust principles, has been increasingly accepted over the last twenty years in both policy circles and lower court constitutional and administrative law decisions. This article describes and critiques this development. First, the lower court pro-corporate constitutional innovations require the lower court to ignore the views expressed by both the majority and the primary dissent in Turner Broadcasting v. FCC. This occurred even though Turner Broadcasting itself involved an innovation more supportive of corporate resistance to legal structural regulation of the media than all prior Supreme Court case law. Second, the article shows that arguments rejecting concentration (in most cases) as a problem - for example, because the concentrated media will give audiences what they want or because owners, whoever they are, will have little long term ability to deviate from market dictates - have been based on demonstrably bad economic reasoning. Moreover, these conclusions have reflected policy makers' recent and increasing inability to understand non-economic, especially democratic, concerns with the media concentration. Finally, the article describes the affirmative, often democratic arguments, for favoring limitation on media concentration beyond those offered by antitrust law and for other structural interventions targeting the distribution of media ownership and control.