Recently, however, I've been forced to return to it. Although I am admitted to practice law in Pennsylvania and D.C., I am not admitted in my new home state of California. As I have become more involved in my small mountain community, I have been approached on more than one occasion to help a friend or associate in some way that could conceivably be regarded as the "practice of law." My wife, who is a California lawyer, has also recently opened a solo practice in town, and it would be nice if I could assist her from time to time, as the need arises. The only thing to do, it seemed to me, was to take the California Bar exam and become a member here as well.

Stories about newspapers closing, broadcasters eliminating news departments, and journalists being laid off have become commonplace, but because there a few diehards like Mr. Hunter who want to continue to believe that stand-alone news operations can thrive in a highly competitive and fragmented media market, here's one more: The LA Times reported this week that ABC News plans to close all of its news bureaus (except in Washington) and to halve the number of its domestic correspondents.

Yes, indeed, Mr. Hunter, we all should be shaking in our shoes that the monolithic ABC News is a threat to diversity and will likely come to dominate everything we hear, see, and read if we're not careful. Citizen Kane? Citizen Kan't is a more appropriate description. It is not 1970 any longer, and there is no threat now or on the horizon that any single news operation or organization will be able to control the flow of information in America.

To the contrary, it is precisely the inability of any one organization to aggregate sufficient paying users to support a full-fledged journalistic operation that is killing the news business. There can be no assurance that eliminating the newspaper-broadcast cross-ownership ban would do anything to stem the bleeding, but isn't it worth a try? Why not allow an organization like ABC News to experiment with a different business model based on repurposing content across platforms? More fundamentally, is it not a core First Amendment concern when government rules are actively suffocating news organizations? Should not an organization like Free Press be outraged that the government will not, in fact, allow the Press to be Free? I know I won't hold my breath.

That is not to say that there is anything wrong with going outside of Washington to seek input from others who might actually have something important to say about particular issues. To the contrary, upon reflection, one probably could go beyond the Beltway and hold public hearings that would actually be useful in developing substantive policies. The focus would necessarily be on getting actual experts in engineering, economics, law, and business to educate regulators about the implications of given policy choices.

The problem is that the FCC typically has not run its public hearings in a way that is so focused on substance. Instead, the FCC hearings are set up as if they are holding a popular referendum on the policy in question. I have the highest regard for the American public, but the fact is that the issues the FCC has to deal with are highly technical, subject to arcane legal standards, and involve layers of services that are mostly invisible to the average user. Indeed, even for those of us who have worked in these areas for many years, the issues confronting the FCC often challenge our understanding of the services and technologies the in question. In short, these are not questions appropriate for popular referenda.

As I also said at the PLI conference, I am cautiously optimistic that this FCC will get away from policy-making based on ideological bias and back to a more serious and professional approach to its statutory duties. I can only hope that this change will be reflected in the way it conducts any future field hearings that it conducts.

I don't know if Ms. Lithwick is a football fan, but she ought to think about how the NFL would operate if my local news guy was right. If, on any given Sunday, the officials operated as adjuncts to one or the other of the teams on the field, chaos would ensue. No fan of the sport could have any confidence that superior skill on the field would necessarily translate into victories, teams would have an incentive to "invest" in officials, and players could have their careers negatively or positively affected as much or more by their personalities than their athletic ability. In short, the NFL (or any contest that we expect to be decided on the merits for that matter) could not function absent neutral rules applied impartially.

It is stunning that presumably educated people such as Ms. Lithwick can have this very basic concept to slip through their mental grasp. Our fundamental freedoms and the equal protection of the law depend upon 1) the establishment of rules that apply with equal force to all similarly situated people and 2) when disputes arise regarding their application, it is arbitrated by a disinterested party who in good faith aspires to decide the dispute on the merits rather than his or her own predilections. Indeed, the first principle (neutral rules) means nothing absent the second (a neutral judge of behavior pursuant to those rules).

It is for precisely these reasons that we demand that government officials (including judges and Justices) disclose any financial or other interests that they might have that would prejudice their conduct or decision-making, and that we ask those who may have a personal interest in a case or matter to recuse themselves. People are people, after all, but we hope that we can insulate their personal interests sufficient to allow them to "call balls and strikes" impartially.

The scariest aspect of Ms. Lithwick's essay is that she not only seems to reject that model, but that she does so in the belief that somehow it would help those less powerful (the proverbial "little guy") if judges took their cases more personally. The little guy's best hope is instead a level playing field. Those who control the levers of power, if allowed to operate consistent with their own biases and interests, will do nothing but cement that power. Ms. Lithwick's model is a recipe for ensuring that the little guy is forever on the outside looking in.

For over two thousand years the principles underlying our First Amendment protections for free speech and free thought have been the hallmark of just and free societies. Indeed, the advance of civilization is one marked by progress on a path away from state control of speech and thought toward private autonomy in the area of ideas and their communication. It comes as no surprise that the most repressive regimes and movements included among their tenets the suppression of seditious or heretical thought, from the Inquisition of the late Middle-Ages to the most anti-democratic governments of the 20th Century.

By contrast, for over two hundred years, our Constitution has provided the most rigorous bulwark the world has ever known protecting the free dissemination of ideas. It certainly is not always a comfortable fit; the safeguards sometimes protect speech or speech-conduct that is repulsive to many. But there can be little doubt after more than two centuries of our Constitutional experiment that liberty and justice are served by more, not less, freedom of speech.

For that reason, the FCC's recently announced inquiry into "the future of media and information needs of communities in a digital age" should make the stomachs of civil libertarians everywhere queasy. Of course the Public Notice of the inquiry is dressed up in all of the usual public interest language. The Commission purports to be interested in protecting good journalism, promoting a diversity of information sources, and expanding the opportunities for a vibrant debate of public issues. We have no reason to doubt the sincerity of those representations, or of the FCC's claim that it will consider First Amendment concerns first and foremost as the inquiry proceeds.

Can there be any doubt but that any category of speakers that are even indirectly regulated by the FCC will be mindful of this new inquiry and will curb the nature of their conduct and communications in light of it? What great potential for mischief the FCC has spawned merely by initiating this little inquiry! Regulation by "raised eyebrow" has become a well-established tool for a number of federal agencies, including the FCC, but with this inquiry the Commission has taken the concept to a level heretofore unknown - this inquiry is regulation by penetrating leer.

Oddly, there is an element of schizophrenia to the entire enterprise. The FCC for years has defended policies that without question have impaired the economic freedom of its licensees (and related others). Now, as those licensees struggle to survive in a rapidly expanding media environment, the FCC is using those struggles as a predicate and premise for its wide-ranging inquiry into the "future of media."

And one must ask, "what if the FCC concludes that the whole media culture is corrupt and failing"? What is it to do? Is it the appropriate role of government agencies to help structure a media market that works? Does the government really have any role in making sure "all Americans have access to vibrant, diverse sources of news and information that will enable them to enrich their lives, their communities and our democracy" (as the FCC so boldly declares in the opening paragraph of the inquiry)? When did that become a charge of the government in general and the FCC in particular? From whence did the FCC's power and authority to be the arbiter of whether or not the media and press are meeting the needs of our free society arise?

To posit the question is to reveal the answer - the FCC has no such power or authority, and never has it been charged with exercising any such. The inquiry is a based on an illusion. Unfortunately, merely by suggesting that it has the power to engage in this sweeping inquiry, the FCC has unconstitutionally snatched some level of control of the national debate from the hands of the people, where it belongs, and rested it in the hands of federal bureaucrats, where it most assuredly does not.

The paper is premised on the notion that the government has for many years and in many ways subsidized and/or regulated the news media, and it concludes that enhancing those efforts will forestall the decline of news and information media. The paper fails, however, to: 1) grapple with the question of whether those earlier efforts helped or hindered the media; 2) address the fundamental question of whether there is some systematic reason that news and information services cannot survive on their own merits; and 3) provide a satisfactory answer to the question of whether government entanglement with the media is consistent with a free society.

On a technical level the paper provides a short and somewhat selective history of postal subsidies and tax incentives that have one way or another benefited various forms of publication over the past two centuries. It also covers in cursory fashion federal regulations that have had an impact on purveyors of news and information. Again, the question it never asks or answers, however, is whether the government's meddling on the periphery of the news business was helpful or harmful -- it merely assumes the former. Superficially, this does not seem an unreasonable assumption. But as much as a crutch can help one stand, it can also slow one down in a race. I, at least, am not at all convinced that the government's "assistance" to the media has been a positive force over time. Indeed, some of the media's current problems may well result, at least in part, from past government policies that were intended to benefit the media or to otherwise improve the quality of news and information services provided to the American people.

Which leads to the paper's greatest failing - not exploring the implications of increased government entanglement with the "Fourth Estate." The authors implicitly assume that government can both subsidize and regulate the news media for benign ends using value/content free means. I am not so sanguine about the prospects for a media culture that is all but fully dependent upon government props.

To begin with, I have the perspective of having run, briefly, the Corporation for Public Broadcasting. CPB, among other things, is charged with insulating the public broadcasting system from improper government influence tied to federal funding. Whatever the theory, the reality is that it is all but impossible to provide an impenetrable wall between those who control the purse strings and those who depend upon the largess of the government for their survival. Indeed, during my time at CPB, there was a controversy surrounding the supposed efforts of the Chairman of the CPB board (all of whom are, of course, politically appointed) to influence programming in the system. That was not the first time the issue has come up and it will not be the last.

More fundamentally, I question the underlying assumption that the government has any role - at all - in enhancing or protecting the news media. The authors of the report take that role for granted, but it strikes me as fundamentally inconsistent with the First Amendment freedoms. The framers of our founding document were well aware of the dangers of government entanglement with the press. At the time of the country's founding, there were about three-dozen newspapers in all of the colonies. Those publications were, for the most part, highly commercial and extremely partisan. The founders did not, however, craft a basic law that would allow for regulation to increase "fairness" or enhance diversity of viewpoints, or to change the way the papers were packaged or sold. Instead they came up with the elegantly simple: "Congress shall make no law . . . abridging the freedom of speech, or of the press. . . ." As Justice Black famously said, "no law means no law." Congress and our elected officials may sincerely believe that a healthy media is essential to a democratic state, but the Constitution expressly carves the areas speech and press out of the sphere of appropriate government action. A truly free press must be truly free of the government's tentacles.

The Associated Press identifies Senator Dorgan as a "moderate." I have no idea the basis for that assessment but, to the contrary, and in my experience, he was one of the most reactionary members of the Senate on media issues. Like a few of the FCC Commissioners past and present, Byron Dorgan seems unable or unwilling to come to terms with the revolution that has occurred in the media markets as a result of digital technology.

While most of us worry about how serious media enterprises will survive in an age when audiences are badly fragmented, serious journalistic efforts cannot find paying customers, and high quality entertainment programming has effectively become a loss leader for anyone still investing in it, Senator Dorgan spent his time in the Senate trying to obstruct any and every attempt to modernize the FCC's outdated broadcast ownership rules. Indeed, in his efforts to keep the FCC's media rules mired in the 1970s, Senator Dorgan was not above empty rhetorical flourishes, and one in particular stands out in my memory.

Most notably at one Senate hearing, Senator Dorgan related the story of a train wreck that occurred near Minot, North Dakota, and the supposed failure of the local radio station (which was owned by Clear Channel, a national radio concern) to respond to calls from local public safety authorities. In Byron Dorgan's version of the event, Clear Channel didn't really care about Minot and its residents, and the station was not staffed at the time of the incident but was instead broadcasting using "voice tracking" (essentially, canned programming recorded elsewhere or at another time).

If one spends just a few minutes to get to the underlying facts, though, one would find that the incident didn't quite happen that way. In fact, as the then-CEO of Clear Channel explained in a letter to Senator Dorgan, the station did have full-time staff on duty at the time of the incident, but the local police were unable to get through to the station because they used an outdated emergency phone number rather than the automated emergency response system (which had been in place for several years). As a result, the police calls were forwarded to the station's switchboard, which was then, of course, being flooded by calls from residents reporting the accident or seeking information.

As for their supposed indifference to the community, other station personnel began reporting for work on their own accord as they learned of the wreck. In an effort to ascertain the extent of the accident and to discuss an appropriate emergency message for residents, station personnel made their own efforts to contact local public safety officials. Unfortunately, police and fire phone lines also were flooded with calls from residents, so the station was not able to get through. Finally, and after the fact, a station engineer discovered that the Minot police had changed the emergency broadcast frequency they used without notifying the station. Thus, if anything, the tale of the Minot train wreck is a tale of incompetent local public safety officials, not one of the dangers of so-called "Big Media."

But the Minot train wreck made a good story and, in Washington politics, that's all that matters sometimes. Let's hope we've heard the last of it now that Senator Dorgan has elected to retire.

The FTC, apparently unable to make a substantial antitrust complaint stick against Intel, has instead brought an administrative complaint against the company under Section 5 of the FTC Act. According to the FTC's Chairman, Jon Leibowitz, the standard required to sustain out a full-blown antitrust case are just a little too rigorous, so the Commission is taking something of a short cut. As the Post concluded, the approach is, to say the least, "potentially worrisome."

To be fair, Section 5 does, as a legal matter, give the Commission authority beyond that which is conferred by the antitrust laws. But as a practical matter, the Commission's past efforts to read its Section 5 authority expansively have been rejected by the courts as excessive. This seems just another such case.

Oddly enough, the conduct that so troubles the Commissioners involves discounts that Intel has given its customers in order to retain market share, i.e., Intel is charging too little, the FTC believes, for its microprocessor chips. Of course there is a prohibition on "predatory" pricing encompassed within the antitrust laws, but the showing required to make out such a case is quite substantial - deliberately so in order to ensure that only conduct that is harmful to consumers is proscribed. The FTC apparently is not content to live by that standard.

More troubling still is that the FTC is considering potential "remedies" that are, in the words of the Washington Post, "disconcertingly intrusive." Indeed, as the Post warned, the remedies being considered may actually lead to higher prices for computer chips and, accordingly, higher prices for consumer electronic equipment that employs such chips. As a consumer, forgive me for not feeling protected by the FTC's rash action.

Indeed, just last week there was yet another story about the "Old Gray Lady" celebrating the Christmas season by laying off another dozen or so newsroom staff. And contrary to the claims of a few who would like to blink reality, these cuts were not occasioned by the debt load of the New York Times, but by a historic decline in advertising revenues -- the newspaper's advertising revenue fell by 30 percent through the first nine months of the year, which followed a decline of 12 percent in advertising revenue in 2008.

Broadcasters, too, are feeling the pinch. Notably, Pepsi has announced that it will not buy advertising time during the biggest broadcasting event of the year -- the 2010 Super Bowl. The Super Bowl is, if you will pardon me, the "Super Bowl" of television advertising each year. A 30-second spot last year cost $3 million on average, and Pepsi alone bought nearly $15 million of time during the broadcast. This year the company will focus its marketing efforts on new media, including a large dose of online advertising.

Can those who would continue to saddle old media with outdated and anticompetitive regulatory restrictions continue to ignore the symptoms of illness when they are so starkly manifest? It is long past time to liberate traditional media businesses from the rusty old regulations that shackle them, and allow these important cultural, educational, and social enterprises to compete with their new foes on a level field. That would entail, first and foremost, affording them full First Amendment rights and eliminating archaic ownership restrictions. The "other shoe" is slipping -- we had better do something before it drops.

Congress has regulated broadcasting for eighty years. That regulation started, of course, simply to deal with interference between and among various stations. It has since expanded to include, just by way of example, a prudish regulation of content the government regards as indecent, rate ceilings for advertisements by the ruling class (i.e., political electioneering spots), and a failed attempt to dictate what is "fair" and "unfair" when it comes to the coverage of controversial issues.

But regulatory meddling along the lines just mentioned at least involves matters of some weight. A bill just passed by the House demonstrates that there are no practical limits to such meddling and that no matter is too inconsequential when it comes to state oversight of an industry. Congress now, we have learned, wants to regulate the volume of broadcast advertisements.

The bill is the brainchild of Congresswoman Anna Eshoo (D-CA), who apparently is offended that some televised advertisements are louder than the programs that precede them. Now the whole effort is silly, to say the least, and volumes could be written on just how nonsensical it is. How, for instance, does anyone know what the metaphysically correct volume for an advertisement is? Must the volume of an exploding bomb to be the same as that of a whisper? More fundamentally, is this really a national priority? What effect will this have on something that might actually be important in a rocky economy, such as job losses in an already struggling industry? One could go on seemingly indefinitely asking questions probing for some inkling of serious import in this bill, but that effort, itself, would be senseless.

There is a larger point, however, that is worth highlighting. The Eshoo bill points out just how nitpickingly insidious government regulation can become. That's why I am astounded that commentators and groups who purportedly care about free speech would be so willing to ask for government regulation of the Internet - the great modern engine of liberty and free speech.

Whatever its faults, the market responds pretty quickly when private enterprises behave in ways that a significant number of people find offensive or inappropriate. The same cannot be said for the State. If the government starts regulating the Internet, and it starts getting it "wrong" or overstepping (which Rep. Eshoo's bill suggests is all but inevitable), it will be near impossible to rein it in. The greatest threats to free speech are not from companies that provide services in response to public demand, but from the levers of state power manipulated by those who are sure they know better than the rest of us what content we should or should not be able to access, how we access it, and just how loud it should be.

Another chink in the armor of the supposed big bad media companies that (we are told) are stifling dissenting views and threatening our republican form of government. When are those who hold themselves out as "consumer advocates" going to stop trying to hamstring media companies and instead start worrying about how high-cost entertainment and news programming will be financed in the new media environment?

No time soon, it would appear. While television networks like CBS wrestle with real world economic challenges, the so-called consumer advocates are preoccupied with the same ridiculous bogeymen they've been haunted by for years - this time hiding under the bed made by the proposed combination of Comcast and NBC. I don't know whether Comcast can help revive NBC, but we had all better hope that somebody can.

The days of Ben Franklin running a hand press in the print shop basement are long gone. Running a credible news organization today - locally, nationally, or internationally - requires scope, extensive physical and human assets, and advanced information and communications technologies, all of which cost money. Like other businesses, newspaper companies have tried to amass the scope and scale necessary for success by borrowing money and investing in their businesses. But borrowing is never free; running a profitable business requires revenues sufficient not only to pay operating expenses, but also to cover the cost of capital. It may be news to our friends at Free Press, but newspaper companies around the country are struggling to meet their obligations and remain solvent.

A story last week highlights the difficulties that many papers are having. The Washington Post announced that it is closing all of its national news bureaus. In effect, the Post will cease to be a national news organization and become a local Washington, D.C. paper. Now perhaps that was a better strategy from the outset, and perhaps it should never have aspired to be anything more than that and borrowed in an effort to expand as it did. But it cannot be welcome news, I would think, to those who care about journalism, that one of the most venerable American newspapers is cutting staff and closing bureaus. To carry forward my earlier analogy - it is like an airline shedding planes and terminating service on some routes: it may be good for the airline and its investors, but it doesn't help the flying public.

The analogy is flawed, though, because, unlike the airline business, newspapers are affirmatively prohibited from organizing in ways that might allow them to remain profitable without shedding assets. Combinations that might make economic sense - the common ownership of a newspaper and a local broadcast station in the same market - are specifically proscribed by outdated FCC rules. The time is past to ease those restrictions; we can only hope it is not too late to save print journalism.

Now I didn't see the broadcast and I have no interest in opining on whether the show was, or was not, actionably indecent as a legal matter within the framework that has been constructed by the FCC over the past several decades. Frankly, the whole broadcast indecency regime is undiluted nonsense as far as I'm concerned and it should have been struck down as unconstitutional years ago.

The larger point that I want to touch upon is just how out of touch with reality PTC and its cohorts are. On this issue I do have some expertise, as I spend quite a bit of time working with teenagers at our local high school. I can assure the gentle reader that today's teenagers are exposed to considerably more graphic content than those of my generation were and - surprise of surprises - it's not by way of the family television set.

Indeed, to complain about content on television today is about as relevant to youth culture as complaining about obscenity in books. Why doesn't PTC go back to complaining about Ulysses and Candid, or Leaves of Grass and the Canterbury Tales for that matter? I'm sure there is much worse in Lady Chatterley's Lover than anything broadcast on the ABC Television Network. Putting aside the constitutional questions, wouldn't it seem rather silly and pointless today to ban these books purportedly to protect mores of our youth? The Naked and the Dead has some vulgar passages, but is anyone under the age of 18 reading it? I don't know that I've ever heard a kid say, "fug."

One is tempted to ask whether the PTC might not be able to find something important to do, but of course that misses the point. There probably is no surer way of raising money from the religious right than by wailing about the decline of decency and the erosion of moral standards - that same tired refrain that would-be censors have been echoing for centuries. What a racket.

I want to tell one of those stories today.

Boulder City, Nevada, is an enduring echo of FDR's New Deal. The small city just south of Las Vegas was entirely planned and built in 1932 by the Bureau of Reclamation to house thousands of workers recruited to build a power-producing dam on the Colorado River. The dam was later to be named after the Secretary of Commerce principally responsible for launching the project - Herbert Hoover.

Five years after the city was founded, in 1937, a daily newspaper was born in Boulder City - the Boulder City Daily News - and for 70 years it brought coverage of local news, sports, and events to the breakfast tables of a small city that became an oasis in the desert. Although the paper switched to weekly publication in 1949, the Boulder City News remained one of the strongest community newspapers in the country for many years.

In many ways, the Boulder City News was the prototypical small town, community paper. It was one of several media properties locally owned and operated by the Greenspun family of Southern Nevada. Under Greenspun ownership, the newspaper won numerous industry awards for excellence. Indeed, only two years ago, the Boulder City News took third place in the Newspaper of the Year competition for papers with circulations up to 10,000. The paper was acclaimed for its enterprise reporting, lively Arts & Style section, and strong editorial voice.

Sadly, at the end of October, Greenspun Media Group announced that the company was suspending publication of the Boulder City News and its sister paper in Henderson, Nevada. As the Las Vegas Sun noted in reporting the demise of the Boulder City News, the paper's "widely recognized editorial excellence was not enough to save [it] from the economic realities."

So where do we go from here? Who will now cover local news in Boulder City? Might one of the large Las Vegas papers publish a "Boulder City" insert for the area? But those papers, too, are suffering from decreased circulation and lost advertising revenues.

The production of news is not free, and it is not immediately clear where new sources of funding for high quality reportage will come from. Unfortunately, current restrictions on who may own broadcast properties limit the structural options available to media companies trying to adjust to the new economic realities. Critics of media freedom who advocate the retention of those restrictions in the name of "media diversity" might want to start asking whether, in the future, there will be any free media at all.

The regulators at the FCC have their claws deep in the flesh of broadcast licensees (and derivatively newspaper owners), and it is plain that they are scrambling for any excuse to keep them there. Meanwhile, both of these Industries, which have long been the platform for some of the best journalism ever produced, slowly bleed to death.

Just this week, by way of example, the local paper in Mesa, Arizona, announced that it will shutter its doors permanently at the end of this year. The "East Valley Tribune," which won a Pulitzer Prize only a few months back for its investigative journalism, is owned by Freedom Communications -- itself in bankruptcy. Freedom apparently tried to sell the Tribune, but received no serious offers. Cyclical downturn indeed.

Gilbert, Arizona, Vice Mayor Linda Abbott "hit the nail with her head," as one of my law professors used to say: "Any time there is a newspaper that is extinguished, that is something that is a sadness for all of us. It is imperative that you have the press as the guard for our citizenry, and with the closing of the Tribune, that's one less critical oversight on public policy."

Meanwhile, the principal daily paper in San Francisco announced that it will begin printing on high-quality glossy paper. The change is a dramatic attempt to somehow slow the evaporation of its readership. Remarkaly, the "Chron" (as it is known to those few left who still read it) witnessed a 26 percent decline in circulation in the April to September reporting period. Does that sound like a cyclical bump in the road to anyone?

I feel like I am beating the proverbial dead horse, but newspaper offices may well end up being the ghost towns left by our generation. Industry-wide, newspaper advertising sales declined by almost 30 percent in the first quarter of 2009. This follows similar, though less dramatic, drops in each of the last several years. Can we finally say it? The emperor has no clothes; the business model has collapsed. Sadly, broadcast newsrooms may not be far behind.

And what do our intrepid leaders in Washington do while Rome burns? To call it fiddling would be charitable - fiddling at least would not be affirmatively deleterious to these businesses. Instead, the powers that be in Washington have under consideration a seemingly endless list of new regulatory obligations and burdens with which they would like to saddle broadcast licensees. And when these Industries ask for some relief from ridiculous, outdated restrictions on how they may organize themselves and who may own these properties, the FCC twiddles its fingers. Perhaps it will only be when the wise men and women making communications policy in Washington are left standing amongst the ruins of once important journalistic media that they will appreciate their folly.