There are few analogues to the claim that the Trump White House may be using the Department of Justice to punish CNN as it reviews AT&T’s proposed takeover of Time Warner—a claim that, to be clear, has been disputed. But if it turned out to be true, it wouldn’t be unprecedented, thanks to the Nixon and FDR administrations. They provided the two best examples of the White House leveraging antitrust principles in response to critical coverage.
First, in 1971, Nixon told a White House aide in a recorded Oval Office conversation that the best way to keep in line the three major networks—ABC, NBC, CBS—was to maintain the constant threat of antitrust actions: “If the threat of screwing them is going to help us more with their programming than [actually filing an action],” Nixon said, “then keep the threat.”
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The aide, Charles Colson, who routinely censured the networks for their Nixon coverage, said that “keeping this case in a pending status gives us one hell of a club on an economic issue that means a great deal to those three networks … something of a sword of Damocles.”
They were referring to an antitrust lawsuit that Attorney General John Mitchell had pushed to file against the networks, on the theory that they monopolistically owned prime-time programs. But as the recording makes clear, Nixon got Mitchell to sit on it because Nixon was, as he said in the tape, “trying to get something out of the networks.” That something? Deferential coverage. White House aides had been conducting regular surveys of network news content, calculating how much time was spent on pro- and anti-Nixon stories.
Eventually, in 1972, the DOJ filed antitrust actions against the networks. The New York Times editorialized about them:
A regulated medium of communications, subject to periodic license review, is particularly vulnerable to hints of governmental harassment. When those hints come as frequently as they have from this Administration, the danger that they will exert a chilling effect on freedom to comment and to criticize—especially in a national election year—is incontestable. That danger is magnified when the line between law enforcement and intimidation comes into question. If resentment against past shows of independence by the networks had not been so manifest and if vigor in applying the antitrust laws had not been so erratic, the cloud over the present suit would not be so ominous.
The suits were dismissed in 1974, in part because Watergate was beginning to overwhelm the administration. Notably, as the legal scholar Lucas Powe wrote in his seminal book American Broadcasting and the First Amendment, Nixon, who also orchestrated challenges to several stations’ licenses, understood well what made broadcasters legally vulnerable. That, along with what Powe called Nixon’s “militant drive” to get better coverage, “led to unprecedented efforts to force network television to tone down” their Nixon criticism. Of those efforts, Powe wrote:
They were enacted on a wide variety of fronts, but all shared an underlying theme: financial incentive. The government, if it is willing to be consistent and thorough, can have a major impact in determining whether certain operations are profitable and whether certain people will have the right to acquire a fortune through television.
Which brings us to FDR, who at a basic level understood those things, too. He weaponized the Federal Communications Commission and tried to use it as an antidote to what he perceived as unflattering coverage. FDR was angry after his court-packing plan failed in 1937, and he went on to face a stagnant economy and a mostly struggling legislative agenda around final phases of the New Deal—and, frustrated, he began to lash out at critics, including the press.
The story of the media business throughout the 20th century is one of consolidation, with companies using mergers to achieve horizontal integration and almost never running into antitrust
FDR appointed James Lawrence Fly, general counsel of the Tennessee Valley Authority, to run the FCC. He was energetic and tough, and he brought what media historian Michael Stamm, in his book Sound Business: Newspapers, Radio, and the Politics of New Media, described as “an activist New Deal perspective to the regulation of broadcasting,” with a “firm commitment to the … idea of decentralization” of media ownership structures.
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In 1940, that commitment converged with FDR’s resentment of his coverage in many American newspapers. Stamm put it this way: “Roosevelt, who owed a significant portion of his popularity to his success in speaking directly to the American people over the radio, decided to hit back at this declining newspaper support by attacking publishers over the issue of radio ownership.” So, after his second reelection, Roosevelt sent Fly a single-sentence memo: “Will you let me know when you propose to have a hearing on newspaper ownership of radio stations.”
Fly initiated such an investigation (he also finished one of chain broadcasting), “generating one of the most significant inquiries to date,” according to Stamm’s book, “into the basic structures of ownership in the American media.” Some of Fly’s concerns about consolidation were well founded, but they were tainted to some degree by FDR’s intentions. In any case, the press wasn’t pleased. When Fly held hearings on radio ownership, the trade publication Broadcasting said they were “obviously calculated to ‘get’ those publishers certain New Dealers don’t like.” Several media organizations sued to stop the investigations, and eventually, after nearly four years and multiple court appearances, the FCC backed off.
It’s possible the same thing will happen in the AT&T review—whatever is behind it. The DOJ could back off, or the two sides could go to court. (AT&T’s lawyers are preparing for litigation.) Again, the critical facts are unclear, making it hard to speculate. And all of this is a bit unusual because, as media historian Matthew Pressman, of Seton Hall University, told me, “Historically, the government has been very lax in how it has applied antitrust law to media orgs. The story of the media business throughout the 20th century is one of consolidation, with companies using mergers to achieve horizontal integration and almost never running into antitrust problems—especially if they had political connections.”
With that in mind, it will be interesting to see if Sinclair’s proposed merger with Tribune will draw a similar level of DOJ scrutiny as the AT&T deal. “Given that Sinclair is perceived as conservative, it seems less likely compared to CNN,” Clay Calvert, a media law professor at the University of Florida, told me. “The other interesting point is that both the DOJ and the FCC have antitrust powers. Why did the FCC seem to have few problems with the AT&T merger but not the DOJ? That’s an interesting contrast, especially since the FCC is now 3-2 Republicans.”
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Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.