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Non-market Power and Journalism

Journalism is enabled and restricted in different ways by civic, non-market power, especially imparted by the state. On the enabling side, the constitutions of both countries explicitly demand press freedom. As Hallin and

Mancini argued, however, the first amendment of the US constitution is treated “in a more absolutist way” (Hallin and Mancini 2004:229), contrary to Germany, where freedom of speech and the press are balanced against other public concerns: privacy, hate speech, political pluralism, public order (ibid.:163).

Besides these limitations, principles of press freedom extend to other important laws: Specific rights for journalists, for instance, shield laws (to protect sources, including the right to refuse to give evidence), as well as laws that apply to any person or entity that benefit journalism, for example, disclosure laws. There is no federal law but most states—including New York (Digital Media Law Project 2012)—have implemented shield laws with varying strength in the United States. In Germany, general shield laws can be deduced in part from constitutional provision of press freedom, which has been affirmed in a Federal Constitutional Court ruling (Bundesverfassungsgericht 2003). Regulations are spread in other legal areas, for instance, a Zeugnisverweigerungsrecht (right to refuse to give evidence) in criminal law (§53 StPO). The United States first enacted disclosure laws in 1966, titled Freedom of Information Act (FOIA, 5 U.S. Code §552), and added important amendments with the Privacy Act of 1974 (5 U.S. Code §552a). Germany has an equivalent only since 2005, called Informationsfreiheitsgesetz (BGBl. I S. 2722), which merely pertains to federal authorities and thus lacks in reach. Many German states have passed similar laws, but Bavaria is not one of them.

One way in which journalism is regulated in Germany is through a right-of-reply, which is legislated on the state level. The press law of Bavaria (Art. 10 BayPrG), for instance, demands the possibility of factual counterstatements in media outlets. Since the repeal of the fairness doctrine in broadcasting in 1987, which granted a right to reply to political endorsements and potentially damaging news stories for individuals (Schultz and Vile 2005:778), there is no such law in the United States.

Beyond positive law, however, the effective level of press freedom is ultimately decided in practice as the World Press Freedom Index suggests (Reporters Without Borders 2015). The United States has not performed well in 2015, ranking 49th out of 180 countries and below several African nations. Germany ranked 12th. Press freedom may be restricted by selfcensorship (which is included in the regular survey conducted by Reporters Without Borders), submissiveness to the state, according to current affairs and geopolitical circumstances. Media scholars, for instance, found that

US news media assumed a more state-supportive role and engaged in “patriotic journalism” after 9/11 (Zelizer and Allan 2003).

Hallin and Mancini view press councils as phenomena of Democratic Corporatist states and their political culture in which news media are primarily viewed as social institutions rather than businesses (Hallin and Mancini 2004:163-164). Organizationally, the German Presserat is governed and was founded by newspaper publishers and journalists and thus a body of occupational self-regulation (see the following section).

Direct press subsidies are non-existent in both countries. Germany is an exception relative to other Democratic Corporatist media systems (Hallin and Mancini 2004:161). As in other European countries, however, there is an indirect press subsidy in Germany in the form of a sales tax cap (Puppis 2010; WAN 2010). The German state has a more interventionist role in electronic media as it defines the legal framework of public service broadcasting, including its funding structure. One trend in the United States is that other civic actors, namely foundations and philanthropists, have been funding, acquiring, or founding media operations. Prominent examples are the 2013 acquisition of the Washington Post by Amazon founder Jeff Bezos for $250 million (Farhi 2013) and the establishment of the online journalism site The Intercept by eBay founder Pierre Omidyar in 2014. Foundations that are known to fund existing or new journalistic ventures are the Knight, McArthur, Ford Foundations, and Pew Charitable Trust.

The strength of the German public service media sector is primarily a function of funding and reach. They are to a large part funded by license fees, amounting to about 86 percent of total revenues compared to 40 percent in the United States (Benson and Powers 2011). In the 14 countries Benson and Powers compared, the United States ranked lowest in public funding ($3.75 per capita of the total population per year) and Germany highest ($131.27) in 2008. The market share of public service television in Germany was 42.9 percent in 2009 (Puppis 2010:281). In contrast, Public Broadcasting Service (PBS) is not only underfunded but also has an average audience reach of less than 5 percent (Benson 2013:43).

While the German state only determines frame conditions of public service media, political parties and other civil society actors shape these organizations internally by appointing members of broadcasting councils. Because public service media are governed on the federal state level in Germany, the political party balance of each state manifests itself in broadcasting councils. Besides the fact that public service media are obliged to cover political parties equally, it is safe to assume significant influence of the conservative party Christlich- Soziale Union (CSU) in Bavaria on the Bayerischer Rundfunk (BR).

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