As they strove to strike the proper balance between freedom and regulation, the members of the Commission contemplated and rejected an assortment of policy options. Many were relatively mild, but some were far-reaching. Had the details of the deliberations been known (the Commission barred reporters from its meetings), the press's response to the Commission's ultimate report would have been even more irate.

One of the most radical proposals came from Beardsley Ruml, Macy's Chairman and former University of Chicago social scientist. Ruml proposed a federal agency, modeled on the Federal Communications Commission (FCC), to regulate newspapers. Newspapers would not be obliged to submit to its jurisdiction, but only those that did so could retain limited-liability corporate structure. Newspapers that refused to heed the agency's guidelines would lose the legal advantages of incorporation. "Do not use coercion first," Ruml said, according to a summary of a discussion, "but give certain advantages in return for compliance." Though several Commission members responded favorably, the idea was soon abandoned--perhaps because Commission members recognized it as, in essence, a licensing scheme for the press.59

Harold Lasswell raised another suggestion that would have alarmed newspaper publishers: content regulation of any newspaper that dominated its community, with little or no effective competition. "Instead of breaking up the paper ... give it over to public utility regulation," he said. "One example of the possible forum would be to make it responsible for carrying a page that would be centrally edited by a government commission."60

"Oh, no!" responded Chafee. Like Ruml's FCC for newspapers, this idea was soon abandoned.61

Part of the Commission's concern about newspaper monopolies was that owners were excluding certain viewpoints. The press, Archibald MacLeish said, must "create that atmosphere of moderation and courtesy in which advocates of contrary views and interests are most likely to listen as well as talk to each other." In his view, this meant that each citizen must be able "to say his say in print if he so desired." He wanted the law to treat newspapers as common carriers.62

Other Commission members disagreed. "If you make something a common carrier," Hutchins said, "you denature it." "We don't have a right to print," said Chafee, "any more than a high school blonde has a right to appear in the movies." In the end, the Commission recommended the common carrier only as an analogue, not as a legal principle.63

The group also discussed ways to augment competition by aiding start-up newspapers. Some people in Rochester, New York, were interested in launching a weekly newspaper, Niebuhr reported, "but they haven't been able to get anybody who would want to take the financial risk that is required to buck Frank Gannett," owner of a chain of papers in upstate New York. Staff member Llewellyn White suggested that the government guarantee a new newspaper's loan when a certain percentage of a city's population indicated support. George Shuster thought that the postal rate ought to vary according to the publication's circulation.64

Chafee disagreed. "If the plan is to subsidize little papers, let's propose that the government take $25,000 or $50,000 or $100,000 of the taxpayers' money and give it to anybody who wants to start a newspaper," he said. "That is what this amounts to." The final report merely suggested that "tax laws and postal rates ... be restudied with a view to discovering whether they ... discriminate against new, small businesses."65

In addition, the Commission deliberated about whether to recommend laws against knowingly published falsehoods. Even Chafee agreed that the problem was serious. "It was unquestionably demonstrated to us," he later wrote, "that the output of the press includes an appallingly large quantity of irresponsible utterances and even deliberate lying."66

One proposal came from staff member White. He wrote in a grandiose memo:

In my opinion the Commission could make no greater contribution than to recommend to Congress that legislation be speedily adopted making willful and knowing dissemination of untruth a crime against society, punishable by law.

Dynamite? So too, I rather imagine, was Jefferson's Act to Establish Religious Freedom. Is the Commission afraid to write history?67

In place of White's criminal prosecutions, MacLeish recommended civil suits, brought by the attorney general. That approach, he suggested, would "avoid some of the dangers to the freedom of the press." The cases would be tried before juries, and newspapers found to have lied would have to pay fines. Hutchins responded that with punishment by fine, "it really is a criminal libel prosecution."68

Chafee raised concerns about the judiciary's role. "The doubts we all feel about the convictions of Dreyfus, Tom Mooney, or Sacco and Vanzetti warn us that the possibility of judicial errors cannot be eliminated," he said. He also observed that "courts are very busy places," with no time to take on additional tasks. The final report expressly rejected legislative solutions to the problem of knowingly published falsehoods.69

Chafee also opposed a proposal to require newspapers to publish corrections. An honest publisher ought to be eager to correct a mistake, even a trifling one, he said. But what if the publisher persisted in believing the original article was accurate? "It may very well be a serious invasion of liberty of the press to compel a newspaper to publish as true what the editor believes to be false," he wrote. A right-of-reply statute, in contrast, "seems free from constitutional objections."70

Commission member John Dickinson thought that even a right-of-reply law would impose a chilling effect on the news media. He said, referring to the pugnacious columnist Westbrook Pegler:

Suppose you have a fellow like this Pegler, whose statements certainly wouldn't be underwritten by everybody, yet possibly where you have extreme statements made by someone on one side it may be a healthy thing to have somebody extreme on the other side, like Pegler. But, if you had a fellow like that contributing to a newspaper, creating situations where the newspaper would have to print columns of denials of his assertions, the result would keep Pegler out of the newspapers altogether.

Replied Niebuhr: "Let's have it!"

"I am not so sure," said Dickinson. "I think it might tend to produce a very milk-and-water type of journalism, keeping away from the controversial issues."71

In the end, the Commission did recommend retractions or a right-of-reply, but solely as an alternative to money damages in libel suits.72

As they thought more and more about the limits to governmental power over the press, Commission members found themselves drawn to an idea that Charles Merriam had first raised: a private entity to assess the press. Summarizing the views of a subcommittee that he chaired, Hocking told the Commission, "We ought to keep the government out of it.... Self-righting processes are not sufficient and therefore a private agency of some kind should be set up." Hocking envisioned a national press-watching organization as well as many local ones.73

Niebuhr, too, favored a private entity. "Governmental action against a newspaper would be subject to grave suspicion that it is politically motivated," he said. In addition, enacting new laws to regulate the press would be exceedingly difficult: "the papers would gang up on you." He believed that the Commission's best hope was to "put a tremendous burden upon the conscience of those who control the press."74

Lasswell also backed the idea. A private agency "has the advantage that people can take it or leave it--no police back the statements of authority," he noted.75

Hutchins was supportive, too. Newspapers could not be trusted to regulate themselves, he said, and no outside organization existed to encourage high-quality journalism. "Does there not have to be a continuing commission of some sort, a commission on the order of this one, to do the double task of educating the public on what it ought to demand and educating members of the press [on] what they ought to supply?"76

Niebuhr saw no point in recommending the creation of an untried and costly entity "unless you know that somebody will be willing to act as a sparkplug." He wondered whether some Commission members would be willing to raise money to start the organization.77

"In answer to your question," Hutchins responded, "I think that some of us in the Commission could approach possible sources for funds and do it very soon."78

Staff Director Robert Leigh drafted a 10-page proposal. The Commission, he wrote, recommended the creation of a citizens' organization, "carefully constituted so as to be as independent as possible of government, the industries, and pressure groups, which will seek in every way to promote the freedom, the public responsibility and the quality of mass communications."79

The organization would undertake a number of tasks: "make investigations of a quasi-juridical nature ... into significant instances of intentional falsifying," "help the mass media define workable standards for performance," investigate the "exclusion of minority groups from reasonable access to mass communication channels," study "defective handling of particular issues or areas of discussion," examine how foreign media portray American life, "give public recognition to excellent performance," issue reports on government proposals affecting the media, and encourage the creation of scholarly institutions devoted to studying the press.80

The organization would have an 11-member board of "professional experts," Leigh said at a meeting. They would be nominated by the public and selected initially by members of the Hutchins Commission. Employees and officers of media institutions would be ineligible to serve.81

They would, however, be eligible to donate money. Leigh estimated that the entity would require $500,000 per year. He proposed that media institutions commit to granting funds annually for 10 years "to insure a reasonable period of independent activity, with reasonable guarantee of continued vitality."82

Ultimately, though, Commission members decided not to proceed with the proposal. It would be better "to drop a seed to be taken up independently," Hocking said, rather than risk having people accuse the Commission of trying to perpetuate itself. "If the seed falls on fertile ground it will sprout," Chafee said. "If it doesn't, it won't sprout anyway." Merriam, Niebuhr, and Ruml spoke of the possibility of reconvening to form the organization after the report's issuance, "assuming," Merriam said, "the Report is favorably received, and the editorial community, for example, insists and suggests that this ought to be done." That, however, was not to happen.83