The Role of Theory and Evidence in Media Regulation and Law: A Response to Baker and a Defense of Empirical Legal Studies

I. INTRODUCTION II. CLARIFYING THE MUDDLE A. Our Contribution B. Baker's Position III. WHERE WE AGREE IV. A VULNERABLE THEORY V. WHY VIEWPOINT DIVERSITY MATTERS A. The FCC and the Courts B. The Empirical Turn of the Law VI. THE DANGERS OF ANECDOTALISM A. Who Wants to Be A Millionaire? B. Conglomerate Support of Fascism C. The New York Times, Pharmaceuticals, the Washington Post, and Nixon D. The Rules of Inference VII. SYSTEMATIC MEASUREMENT A. The Importance of Empirical Evidence with Calamitous Risks B. The Enterprise of Measurement C. The Role of Editorials and News D. Information Versus Sample Size VIII. THE NORMATIVE AND THE PERSONAL IX. CONCLUSION: THE VIBRANT ROLE OF EMPIRICAL LEGAL STUDIES I. INTRODUCTION We are grateful for Professor C. Edwin Baker's lively response to our article (1) and for the opportunity to clarify the important issues he raises, chiefly about the relationship between theory and evidence in media regulation specifically and law generally. We appreciate in particular his praise of our article's "innovative statistical techniques," (2) given that our primary aim was to provide a new approach to empirically measure substantive viewpoint diversity. Our empirical measures and methods help to address long-standing questions about whether media consolidation leads to convergence in viewpoints (the "convergence hypothesis"). We are glad that Baker agrees that the article makes progress in the empirical understanding of the media and that it is "far superior methodologically to most empirical studies that [he] ha[s] seen." (3) At the same time, Baker "denies the policy relevance" (4) of our article. At heart, Baker asserts that empirical evidence about viewpoint diversity is "entirely irrelevant" (5) to media regulation. (6) In the place of empirical inquiry, we should conduct "value-based inquir[ies]" (7) (for example, in the form of the theory he espouses) and, he argues, "anecdotal tales of seriously objectionable past abuses by media moguls could be much more informative" (8) than statistical inquiry. As a result, Baker argues that the FCC should aim to maximize the number of media owners ("source diversity"), as opposed to "viewpoint diversity." (9) We write here to defend the role of empirical research in law, as well as the conclusions of our article. As we explain below, Baker's view suffers from deep ambiguity and internal inconsistency, ignores the empirical turn in communications law, and adopts the extreme position that normative theory should displace what he calls "law schools' recent romance with statistical empiricism [and] welfare economics," which Baker views as "malignant" to the "hermeneutic discipline[]" of law. (10) To clarify any confusion, Part I provides an overview of the contributions of our work and what we understand to be Baker's position. Part II discusses points of agreement with Baker. Although our aim is not to address Baker's unique normative theory, Part III briefly discusses some of its palpable vulnerabilities. Part IV demonstrates why viewpoint diversity matters from the perspective of the FCC and appellate case law, and discusses the irrefutable broader empirical turn in the law. We show that the categorical distinction, espoused by Baker, between "source diversity" and "viewpoint diversity" is nowhere recognized and is expressly rejected by current law. Part V shows the dangers of anecdotalism: Baker's own reliance on "anecdotal tales" (11) refutes the position that empirical evidence is "entirely irrelevant" (12) and systematically undermines his criticisms of our article. Part VI addresses issues of how to reliably measure viewpoint diversity and the specific methodological critiques Baker raises. Part VII deals with the misreading of our normative prescriptions and ad hominem claims. …