The United States Department of Justice is investigating five of America’s largest television news organizations after they temporarily agreed to stop providing pooled coverage of President Donald Trump.
The Justice Department suspects commercial collusion.
Really?
I have a question. Several, actually.
Exactly what commercial advantage did ABC, CBS, CNN, NBC and Fox News gain by declining to provide potentially valuable news footage? Did they make more money? Attract more viewers? Increase advertising rates? Drive competitors out of business?
Or did they do something considerably more troubling to this administration: Stand together and tell the president that he cannot decide which journalists are permitted to report the news?
According to an October 10 investigation by New York Times reporters David McCabe, Michael M. Grynbaum, Benjamin Mullin, Lauren Hirsch and Glenn Thrush, the Justice Department is examining whether the networks violated federal antitrust laws when they briefly suspended their shared coverage of the president.
The dispute began when Trump barred journalists from CNN, Politico and MS NOW from White House grounds, complaining about what he considered deliberately negative reporting.
A federal judge temporarily restored their access. But the administration continued preventing CNN from participating in certain television pool assignments aboard Air Force One.
The other networks responded by temporarily suspending their pooled coverage in solidarity with CNN.
That meant some presidential events, including an appearance with Chinese President Xi Jinping, went without the usual television pool footage.
Trump was unhappy. He complained publicly that the networks refused to cover what he described as one of the biggest and most beautiful events in years.
Now the Justice Department wants to know whether the networks broke the law.
Perhaps someone should explain the difference between journalism and publicity.
Journalism exists to inform the public, scrutinize power, investigate wrongdoing and hold government accountable. Publicity exists to promote the interests of whoever wants attention.
The president is entitled to communicate with the American people. He is not entitled to dictate which journalists cover him, how they cover him or whether television networks broadcast his appearances.
And he certainly isn’t entitled to favorable coverage as the price of admission to the White House.
Yet that is precisely the danger when an administration begins deciding which news organizations deserve access based on whether their reporting pleases the president.
The First Amendment does not exist to protect journalists who flatter politicians. It exists, in substantial part, to protect the freedom to question them.
There is another distinction worth considering.
Antitrust laws protect competition and consumers by preventing companies from conspiring to raise prices, restrict markets, eliminate competitors or otherwise harm the public through anticompetitive conduct.
News organizations are not exempt from those laws simply because they practice journalism.
But what, exactly, was the anticompetitive objective here?
The five networks weren’t conspiring to raise advertising rates. They weren’t dividing television audiences among themselves. They weren’t trying to drive CNN out of business.
Quite the opposite.
They were defending CNN’s ability to compete with them.
Think about that.
Five commercial competitors—organizations that fight every day for viewers, advertising revenue, exclusive interviews and journalistic prestige—temporarily set aside their rivalries to defend another news organization’s access.
That is an unusual definition of a conspiracy to suppress competition.
William E. Kovacic, a former chairman of the Federal Trade Commission, told The New York Times that establishing a predominantly commercial motive would be critical to the government’s case. He expressed considerable doubt that prosecutors could make such an argument successfully.
Of course, commercial profit is not the only consideration in antitrust law. Coordinated restrictions on a service can raise legitimate legal questions even when the participating companies don’t immediately benefit financially.
And there is a fair criticism of the networks’ decision.
The public has an interest in seeing important presidential events, particularly meetings involving foreign leaders. Americans should not lose access to news because television executives and the White House are fighting.
But Americans did not lose access to administration news because network television cameras were absent. Other non-network news organizations were present.
Yes, the networks owe the public an explanation of why suspending coverage was necessary and whether they could have defended CNN without limiting the availability of important footage.
But the White House owes the public an explanation, too.
Why was CNN excluded in the first place? Why should a president’s displeasure with negative reporting determine which journalists receive access? And why should competing networks be expected to cooperate with an arrangement that discriminates against one of their competitors?
Those questions lead to a much larger concern.
The government restricted journalists’ access. When news organizations objected, the government responded by investigating them. That sequence creates an appearance of retaliation that is difficult to ignore.
That doesn’t establish that the Justice Department is acting unlawfully. Investigators have the authority to examine possible violations of antitrust law.
But the authority to investigate is not a license to intimidate.
And the power of government should never become a weapon for punishing constitutionally protected disagreement.
This is not simply a dispute between Donald Trump and five enormously wealthy media corporations. It is about whether the executive branch can use the machinery of government to influence the independent decisions of journalists.
There is something else troubling about this controversy.
For years, politicians have complained that the news media are too competitive, too sensational, too focused on ratings and profits rather than public service.
There is some truth to that criticism.
Yet here we have an example of competing news organizations apparently setting aside their commercial interests to defend a principle larger than any one network.
And the government wants to investigate them for it.
What message does that send?
That journalists should stand together in defense of press freedom, provided their solidarity doesn’t inconvenience the president?
That news organizations may exercise editorial independence, provided their decisions don’t deprive the White House of television exposure?
Or that the First Amendment protects the press only when the president approves of how it is exercised?
None of those propositions belongs in a free society.
I have spent enough time around journalism to know that news organizations are hardly models of selfless virtue. They make mistakes. They chase ratings. They sometimes confuse celebrity with credibility and attention with importance.
They deserve criticism when they fail the public.
But they also deserve protection from government efforts to dictate their editorial decisions.
And that protection should extend to every legitimate news organization, whether its reporting pleases the president or infuriates him.
The real issue isn’t whether Donald Trump received enough television coverage.
Goodness knows, the president has no shortage of opportunities to get his message before the American people.
The issue is whether the government can restrict press access and then invoke antitrust law against news organizations that collectively object.
If the Justice Department has evidence of genuine commercial collusion, it should present that evidence and explain how competition or consumers were harmed.
If it does not, Americans are entitled to ask whether the investigation serves the public interest or merely the president’s personal interests.
Those are two very different things.
The president does not own the news. The Justice Department does not own the First Amendment. And journalists do not work for the White House.
They work for the public.