The American free press is facing a perilous moment. Thanks to a confluence of economic, cultural, technological, and political forces, our prior understanding of how the news media operates has been abruptly upended. Suddenly, it seems, the relationship between democracy and press freedom has been realigned, raising new questions about what it means to safeguard and support the press function in the United States.
Throughout the 20th century, judges and scholars routinely praised journalists for fulfilling key societal functions, including acting as public surrogates, monitoring the government and the powerful, providing crucial expertise and context on complex issues, and serving as trusted sources of reliable information on matters of public significance. In our modern sociopolitical and media landscapes, however, this dynamic is quickly changing. Traditional news outlets are disappearing before our eyes, leaving an information vacuum that other communicators—social media influencers, corporate agents, and purveyors of political propaganda—are rushing to fill. This drastically changing media ecosystem is forcing press freedom scholars to reexamine first principles, such as what press functions a democracy needs, why these press functions matter, who is performing them, and, especially, what legal and policy protections are necessary to safeguard them.
Any discussion of these questions must grapple with a practical reality: The commercial model that sustained the news industry a generation ago has collapsed. Internet platforms have siphoned off the legacy media’s readers, advertisers, and profits. Local and regional newsrooms are shuttering. Meanwhile, how Americans consume their news has changed dramatically. Increasingly, it is computer algorithms—not news editors—that dictate which stories make their ways to readers’ eyes. In many communities, residents simply now have no one performing a shared, traditional press function or arguing for the community-wide transparency that the traditional press once worked to achieve.
At the same time, those who are still performing the press function are facing an unparalleled onslaught of attacks, often led by political actors. By branding the press as “fake news” and “enemies of the people,” former President Donald Trump unleashed an unprecedented effort to discredit journalists and their work, exacerbating an already deep partisan divide on views of press trustworthiness. Trump’s rhetoric also celebrated the use of force against reporters, and threats and violent attacks against journalists have skyrocketed. Newsgatherers in the U.S. today are being harassed, threatened, arrested, and even killed. Perhaps unsurprisingly, the country's international press-freedom ranking has plummeted.
Judges likewise have changed their approach to the news media by shifting away from the press-praising characterizations of the past. Some judges, citing what they perceive as the decline of professional journalism, are expressing support for scaling back legal protections relied upon by those who gather and publish the news and showing reluctance to give journalists the deference they once enjoyed.
For these reasons and more, there is growing scholarly alarm that the First Amendment’s fundamental promise of press freedom is in danger. The problems are dynamic and multi-faceted, and the solutions are unclear. It took the U.S. Supreme Court a century to build the First Amendment jurisprudence that press freedom once rested upon. But that caselaw relies on assumptions about the press, the public, and the government that may no longer be true. Even as the Roberts Court holds itself out as a protector of broad expressive rights, there is growing evidence that the press function is being left behind.
At this critical juncture, our project at the Knight First Amendment Institute aims to explore the future of the American press function and how to protect it. At base, it asks: In a changing media and political landscape, how do we identify the core democracy-enhancing press functions and craft legal doctrine that preserves and protects them?
Our discussions will be both practical and theoretical. We will hear from journalists, lawyers, innovators, technologists, historians, political scientists, and scholars representing diverse backgrounds, experiences, and regions of the country. The project will sponsor three major academic efforts. The first two initiatives are a cross-disciplinary scholarly working group and a New Voices in Press Freedom call for papers, which will both build toward a major symposium at Columbia University and online on May 2-3, 2024. The third initiative is a Press Freedom Scholars Series, which invites authors to contribute online commentaries over the course of the academic year. Together, all three strands will produce more than two dozen articles, essays, and commentaries on the project’s theme, which will then be compiled into an edited volume from Cambridge University Press.
Here are some of the major questions we have on deck:
The benefits and disadvantages of doctrinal press-function exceptionalism
The project will explore the pros and cons of targeted statutory and constitutional protection of the press functions. Legislatures and courts have tussled in the past with the question of whether speakers and publishers performing a press function need to have legal protections beyond those available to all speakers. As local journalism fades and reporters increasingly come under attack, are there stronger reasons to consider granting journalists privileges that other speakers do not possess? As the news ecosystem changes, how can we guarantee access for some parties to perform government oversight (e.g., the right for public-serving newsgatherers to remain on a scene despite dispersal orders at protests or after curfews during pandemics, or the right to access jails or border detention facilities otherwise closed to the public)? What losses to accountability and transparency come from doctrinal homogeneity without any press exceptionalism, and what risks come from carving out special treatment? Some have shied away from the question because of the difficulty of defining “the press,” but can a new focus on press functions provide clarity?
Identifying performers of the press function
Related conversations will grapple with identifying which functions qualify as press functions and how they can best be identified. How, if at all, can we shape doctrine and legal policies that grant rights to those acting as proxies for the public without privileging the powerful over the weak? How can we specially protect performers of the press function without ratcheting the levers of authoritarianism by granting power to the government to decide who is privileged? If this line-drawing occurs, what are the best tools for distinguishing performers of the press function from performers of other functions? What protections might be constitutional necessities for fulfilling the wider purpose of the First Amendment guarantee of freedom of the press, and how can we guarantee that this protection exists in the future, even if media models change?
The role of a free and protected press in a healthy democracy
The project will also urge first-principles investigations of what specific press functions a democracy needs in order to sustain itself. What are the interrelationships between the fragility of the local news ecosystem and the fragility of American democracy? Is it important to have shared processes for finding truth and common shapers of public conversations? Must a healthy democracy have trans-partisan neutral gatekeepers, or does history suggest that a partisan press can combat government secrecy and corruption, provide transparency, and guide healthy, fact-based public discourse? How do the concerns about waning trust in the press parallel concerns about the distrust of other democratic and knowledge institutions and the risks facing those institutions? Given the deep divisions on questions of press trustworthiness, how can we foster newsgathering that is vital to civic health, and what is the proper role of constitutionalism, law, and policy in this space? Are the rights exercised by performers of the press function best viewed as press rights or should they be seen as exercises of the wider collective rights of the citizenry? How do principles of listeners' rights and debates over trusted information-gathering surrogates illuminate the ways that law and policy should protect press actors? How can press-function protections best be crafted to serve the needs of real information consumers and citizens in a democracy?
Press-function protection and the Supreme Court’s evolving First Amendment frameworks
As a practical matter, how do these conversations situate themselves within broader First Amendment doctrine at a time when the U.S. Supreme Court has been First Amendment-expansive but not press-positive? Has press protection fallen outside the wider First Amendment capaciousness of the Roberts Court, and how might it be conceptualized to tap into that Court’s otherwise aggressively libertarian expressive-freedom agenda? Doctrinally, how do structural changes in the power dynamics between the press and the government alter the assumptions on which the Court’s old media-law cases rest, and does the waning ability of the press to engage in self-protection require more aggressive protection for the press function? Twentieth-century First Amendment doctrine presupposes the existence of a legacy media that has power—in the form of audience reach, financial resources, political clout, and governmental reliance on the press for public messaging. If these facts have changed, should cases declining to read the Constitution to positively protect the press function be reconsidered?
Registration is open for the symposium, to be held at Columbia University and online on May 2-3, 2024. RSVP to learn more.
RonNell Andersen Jones is a Knight Institute senior visiting research fellow for 2023-2024.
Sonja R. West is a Knight Institute senior visiting research fellow for 2023-2024.