• by July 16, 2004

CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT OF RELIGION, OR PROHIBITNG THE FREE EXERCISE THEREOF; OR ABRIDGING THE FREEDOM OF SPEECH, OR OF THE PRESS; OR THE RIGHT OF THE PEOPLE PEACEABLY TO ASSEMBLE, AND TO PETITION THE GOVERNMENT FOR A REDRESS OF GRIEVANCES - Our founding fathers may not have gotten it wholly right in their initial draft, but it didn't take them long to amend the situation, ensuring that some of the basic rights many of us take for granted today - things like religious freedom, an open and free press and, of course, freedom of speech - were all part of the deal. So it seems a little weird to us that their Congressional descendents are now discussing legislation that would revise, or at the very least, create an exception to one of those rights, free speech.

Of course, right from the start, America has been a revisionist society. It's in our nature to shift the way we think, how we dress, what we eat, who we elect, or even what TV shows we watch. So in an ironic way, you could argue that the unwritten last line of the First Amendment might truly be "or restrict our right to flip-flop whenever we choose." But the one thing no one's ever wanted our Congressional revisers revise, is our right to revise.

Look, we know it's always been a bit of a stretch for some people to extend the concept of the First Amendment to also include commercial free speech. It's an issue Madison Avenue grapples with all the time. But we're not the only ones that are feeling a little queasy about Congress' threat to create a law that would regulate how Nielsen estimates TV audiences. And it's not just because we're worried about how various special interest groups might lobby lawmakers to influence a process that by its very nature needs to be governed by a free market.

The argument made by some lawmakers on Thursday that Nielsen's TV ratings aren't simply research estimates but are part of the inalienable rights of minorities was a bit specious. Yes, we understand that the research ultimately takes on the form of currency when it becomes applied in the commercial marketplace, but that's the point. It's a free market. Not a regulated one. If the government really wants to address the issues surrounding minority representation in media, whether it's in front of, on or behind a TV screen, it can actually pass laws that would ensure that happening directly. Actually, it's done that from time to time. It created the Public Broadcasting System and oversees its funding model. And look at what a great success that's turned out to be.

Better yet, Congress could create a law mandating that all commercial and public broadcasters must air certain amount of programming relevant to minority groups. Heck, they could even create a law mandating that we all have to watch the stuff But then that would end up being a bit too much like the "Big Brother" Senator Barbara Boxer said she wants to avoid coming into the Nielsen ratings discussion.

Actually, the whole thing is surreal enough to be the subject of a George Orwell novel, but the storyline may have more to do with "Animal Farm" than "1984." It's about some pig-headed - or simply piggish - business interests that are using the issue of race and minority representation to influence a TV commerce process that should be neutral, unbiased and uninfluenced by lawmakers, or advocacy groups. It should be about the best ratings methods and striving to attain the best research samples, not about regulating things to create artificial biases that ostensibly would protect the cultural interests of specific minority groups. That would be tantamount to reverse discrimination. It would also violate the credo of the open market structure under which the TV advertising marketplace operates. A marketplace where there are plenty of checks and balances, and where marketers and their agencies are the final arbiter of the veracity of market research and how to use it. Or, how not to. And not just Nielsen's but any of the hundreds of media and marketing research studies that influence how they plan and buy hundreds of billions of dollars in media targeted at a wide class of people representing all sorts of racial, ethnic and cultural types, but which Madison Avenue gives a common name: consumers.

Asked by the Riff is she would advocate such Congressional legislation be applied to all of those forms of market research that could influence the media and markets relevant to minority groups, not just Nielsen's, Rep. Hilda Solis (D-CA), who participated in the hearings and in a press briefing that followed it, said, "At the time right now, we're just focused right now on this particular issue." But she did go on to point out that minorities also listen to radio. We also know that they are prone to read newspapers and magazines, log online, look at billboards and consume other types of media too.