The idealized “press,” which generated effusive praise from the Supreme Court during the Golden Age of media law in the late 20th century, was a mature, economically robust, and politically powerful industry. As an industry, the press in that era fulfilled a number of key functions, such as setting the agenda of public issues, swaying the conduct of political campaigns and elections, informing the public of current events, and curating a common understanding of newsworthy developments. The news media had a comfortable relationship of give and take with government but also acted as the Fourth Estate by uncovering, publishing, and amplifying information about government malfeasance and political disinformation. Against this backdrop, courts praised newspapers for their multiple functions as public proxies, audience educators, and watchdogs tasked with keeping government abuse in check. In turn, surveys indicated that the public had faith in the press.

But over the last several decades, a confluence of economic, technological, and socio-political change has upended both the news industry and the public’s view of it. While it is unrealistic to hope for a return to the old days of the press, the functions the press has historically played remain essential to democracy. Indeed, one can imagine the press playing an even more robust role today in combating the disinformation disseminated by a variety of sources. Yet the news industry today is no longer economically powerful: Newspapers are in peril, television and cable viewership are in decline, news deserts dot the landscape, and jaw-dropping numbers of journalistic staff cuts have drained expertise from newsrooms. Social media have cannibalized content and replaced scarcity of frequencies with scarcity of attention, the news industry has far less political power, cell phones have allowed everyone to claim citizen journalist status, both the right and left have complaints about the asserted bias of press organs, and a common understanding of public issues is a pipe dream in a highly polarized political landscape.

Under these circumstances, the fate of the press’s functions is an existential question both for the news media as we know it and for contemporary American democracy. Managing the complexity of this kind of information environment calls for independent and principled engagement with issues of public concern by those who hew to journalistic values, such as truth, verification, completeness, investigation, and context. It also calls for appropriate legal protections.

In this essay, I seek to explore the evolving mosaic of threats facing the American press and consider what, if any, legal “rights” wielders of the press function need in response. I begin by identifying a set of key threats facing the press—from economic, legal, technological, and audience-based developments. I then propose some initial responses to these threats along five dimensions—funding conditions, a mixed legal strategy, AI policy, industry restructuring, and trust enhancement. I also call for a commitment to press self-examination from the vantage point of fundamental journalistic values in a democracy.

I. Evolving Threats to Press Functions

Challenges to press functions today can be grouped in four categories— institutional/journalistic, legal, technological, and audience-based. In combination, they undermine journalistic norms and routines, erode the perceived legitimacy of the press, and hamper its democracy-promoting work.

Economic instability and its institutional/journalistic consequences

The combination of declining advertising revenue and increased profit-maximizing public company ownership has led to a financial crisis for the news sector. Many Americans now rely on social media for their news, rather than on local or national news outlets. The social media sector has not shouldered the cost of lost traffic to news sites or adequately compensated the press for use of its content. The economic decline of the news industry has led to compromised journalistic norms, a disaster for journalistic personnel, and, with few exceptions, a practical abandonment of the press’s watchdog role.

Traditional editorial judgments have been unduly compromised by the desire to retain audiences, including via story selection designed to produce clicks. Pressures on journalists have increased reliance on social media to generate stories. Insufficiently mindful of the questionable information environment, reporters have participated in normalizing bias and information skews bred online by reporting on, and thereby amplifying, unreliable material originating online. Established news outlets have served as megaphones for conspiracy theories. The rise in the use of native advertising in the news section has joined newsworthiness decisions driven by audience analytics to blur the traditionally sacrosanct line between advertising and the news. The failure of press institutions to resist commercial pressures as they chase partisan audiences has also resulted in bleed-through between opinion and news programming—as evidenced by Fox News’ role in amplifying the “stolen” election trope regarding the 2020 presidential election. More generally, claims of political and ideological partisanship by media outlets have been made by both conservatives and progressives for some time. An NPR editor’s claim of liberal bias in NPR programming has brought the matter to the forefront of public discussion again recently.

Financial problems have also led to the closure of many local and regional news outlets. News deserts and the failure to cover local news, politics and the state house have had significant negative effects—both for underserved local communities and in checking local and regional corruption. The financial strictures have also led publishers to outsource reporting functions to non-employee journalists, with all the instability for the workers and additional oversight responsibilities that hiring freelancers entails. And with fewer professionally trained news staff, the risk that shoddy reporting practices will affect the quality of the final produce rises. Meanwhile, news organizations have been forced increasingly to rely on packaged news and information provided by public relations companies and entities whose partisanship is disguised (sometime referred to as “pink slime” journalism ), which further undermines the independence of the press function.

The chilling effects of increasing legal ambivalence and uncertainty

Evolving legal hurdles for the press are both substantive and procedural, including questions about the judicial recognition of constitutional privileges for the press. For example, media law scholars have highlighted the risk to press function from recent attacks on the press-protective Sullivan doctrine. On the Supreme Court itself, Justices Gorsuch and Thomas have called for reconsideration of the doctrine.

In lower courts, some judges appear less disposed than previously to dismiss actual malice-grounded defamation cases despite the heightened pleading requirements of Twombly and Iqbal. In turn, juries have granted multimillion dollar damage awards which include massive punitive components. Settlements are also more likely in such circumstances, at least in part because of concerns about revelations in discovery. The possibility of fee-shifting can also be expected to have a chilling effect. Moreover, procedural hurdles under state law, such as supersedeas bonds, have also made it difficult for news organizations to attempt to challenge extensive damages assessed against them.

State legislatures have entered the arena as well. Although some have enacted laws to protect the press—such as New York’s amendment to its anti-SLAPP law to adopt actual malice as a state requirement —others, such as Florida, have been considering legislation under which publishing a story only supported by an anonymous source would be considered reckless disregard of falsity, regardless of context.

There also appears to be a new willingness to prosecute, enforce, or litigate claims against the press over its coverage. The recent rise of a powerful plaintiff’s defamation bar has already had a notable impact. Many of the pro-press rulings by courts—including the Supreme Court—in the 1960s-1980s were litigated by a sophisticated media defense bar on behalf of well-heeled newspapers. Now the press and the media defense bar are hard pressed to afford rights-expanding litigation. By contrast, Peter Thiel’s funding of Hulk Hogan’s privacy lawsuit against Gawker led to a $140 million mega-verdict that resulted in the magazine’s bankruptcy. The Gawker case also indicates the use of doctrines other than defamation law to impose liability on the press for publication.

In addition to publication, there are also evolving hurdles to the press’s newsgathering functions. For example, on the criminal side, there has been an increase since the Obama Administration in the number of instances in which the government has threatened reporters with liability under the Espionage Act for refusing to reveal their sources. Concerns with freedom of the press and worries about the criminalization of the normal practices of national security reporters have recently led many to object to the DOJ’s continued request for Julian Assange’s extradition to the United States to face trial on Espionage Act charges. The Computer Fraud and Abuse Act (CFAA) has recently been used to justify the indictment of journalist Tim Burke. The government’s ability to get access to a reporter’s notes and information via subpoenas to third party platforms (such as email or social media services) has been a practical problem. Outside the criminal context, access to information has also been cut significantly—and certainly since the COVID-19 pandemic. In addition, newsgathering is indirectly impeded by the popularity of non-disclosure agreements (NDAs) signed by sources.

To be sure, the press can still count on significant legal protection—particularly for publication—under current constitutional, statutory, and common law. But the trends described here suggest an increasingly skeptical attitude by courts, legislatures, and government actors toward the press in the legal sphere. This mixed legal picture presents its own complex type of threats to the press, including the particular incentive effects of uncertainty and the need for a variety of responsive legal and policy strategies.

The dual effects of technological change, including generative AI

Many functional problems for the press—from newsgathering to story generation and topic selection—are bound up with technology. For example, due to the availability of spyware like Pegasus, surveillance cameras in streets and on commercial buildings, Ring cameras on people’s houses, and the ubiquitous cell phone camera, Woodward and Bernstein’s meeting with Deep Throat could never remain secret today. Technological advances have also brought danger to the journalistic enterprise and press workers, including through online harassment particularly of reporters of color, women reporters, and non-Christian reporters.

The evolving technological challenges for the press function are likely to metastasize in the age of generative AI. Many newsrooms are already using generative AI to accomplish a variety of tasks. The current rhetoric about generative AI is largely binary and hyperbolic. One the one end of spectrum, optimistic media observers identify potentially powerful benefits that generative AI could bring to journalism, particularly in saving time and effort in routinizing a variety of tasks and helping small newsrooms. Other observers, however, have a more dystopian vision of generative AI’s effects on journalism—including concerns about the possibility of training bias and the unequal distribution of access to the tools of generative AI around the world.

One major concern is the prospect of the “daily me” on steroids. The CEO of OpenAI opined to Axios that large language models would provide hyper-personalized content. If the American public continues to be politically polarized, then won’t this degree of hyper-personalization lead to an even more fractured polity? In a related vein, some worry that the efficiency-based logic of AI tools could potentially transform the nature of news in ways inconsistent with traditional journalism. The answer may depend on AI design and the sophistication of news organization generative AI use policies and negotiation tactics in their dealings with AI companies.

Another concern for news purveyors is the likelihood of increased claims of copyright infringement, defamation, invasion of privacy, breach of rights of publicity and other such allegations. Much attention must be paid to the mix of AI production and human review in order to reduce potential liability.

Finally, the increased use of AI in newsrooms carries obvious concerns about the impact on public trust in journalism—which, as I describe below, is reportedly at a troubling low already.

The politicization of the press and loss of faith

An undergirding problematic development is the politicization of the press and the public’s loss of faith in the media. Both anecdotal evidence and public surveys have shown a marked decline in institutional trust, including of the press, in the past decade in America. Former President Donald Trump’s unending attacks on the mainstream press as purveyors of “fake news” and “enemies of the American people” doubtless served as a factor in reinforcing that sense of public distrust. One of the most harmful effects of such delegitimizing tactics is the politicization of the press, which results in generalized and partisan doubt about everything produced by a particular outlet rather than simply skepticism about any specific news story. If the audience does not believe what the press reports, what is gained even with journalistic or legal reform? As noted above, these effects seem likely to become even more dismal if, as is likely, the use of generative AI optimizes the dissemination of false information via increasingly convincing deepfakes.

II. The Multiplicity of Responses Needed

These various challenges to the functions of the press cannot be solved by interventions in any one area alone. The particular sorts of threats identified should influence the particular responses, and this should be an iterative and evolutionary process.

Funding to reverse consequences of economic decline

Everyone agrees that the question of funding is existential for today’s hollowed-out press, although there is variation in the recommendations for achieving stable funding. While enhanced funding for journalism is critical, I argue that evaluating funding recommendations should require testing vis-à-vis public trust and comparative evaluations of viability.

Attention to funding does not mean that we should blindly shore up the existing institutional press simply because it has traditionally performed press functions. The history of the American press reveals a variety of different funding strands—an approach that could, in principle, provide helpful checks and balances. We should not discount the commercial press as some have suggested. There is much to be gained for public discourse from systematic exploration of events and institutions by well-trained reporters hewing to shared professional standards—and such journalists inhabit commercial as well as non-profit spaces. While many have expressed concern about philanthropic funding of the press by billionaires, a more granular look at alternative possible philanthropic scenarios raises different issues (and perhaps less ideological ones). And while public funding is attractive in principle and likely necessary, a pragmatic approach must focus on the specific design of the initiatives, including as to realism and legal viability. This is particularly true when the explicit political partisanship of today seems to lead people to accept politically motivated censorship so long as it is consistent with their political views. Media scholarship should further engage in close comparative evaluation of funding proposals—particularly from the pragmatic point of view of practicability today.

Furthermore, it is important to recognize that journalism funding questions and issues of public trust should be deeply tied. Unlike the media landscape of the late 20th century, even a well-funded news ecosystem today will consist of a diversity of outlets, voices and ideological vantage points—some explicitly partisan and some not. We cannot assume that declining public trust in the press will be reversed simply by better and more stable funding of the entire sector. The public’s trust in the bona fides and accuracy of the press will require more—including, perhaps, more transparency about funding and point of view. Perhaps more and better watchdog journalism or even different forms of journalism, such as community journalism, could improve public perception of the press’s work. Considering the issue of public trust in evaluating press funding can optimize the inquiry for public interest reporting.

Countering legal ambivalence

Almost 60 percent of American journalists, regardless of the political leanings of their outlet’s audiences, report being very or extremely concerned about possible restrictions on press freedoms. Regarding the legal challenges facing the press function, press advocates call for new affirmative rights to assist journalists in doing their work as watchdogs. For the past decade, they have been unsuccessful in persuading Congress to pass federal newsgathering protections in the form of a federal shield law. Now, however, the House has passed, and there is bipartisan support in the Senate for, the PRESS Act—a very broad set of protections against journalists having to identify their sources and governments having easy access to journalistic records from third party providers. Such support seems to indicate a governmental recognition of the benefits of broad newsgathering access for those who engage in the press function.

Even a broadly protective shield law does not eliminate the need for additional assistance for newsgathering efforts, however. More work needs to be done to obtain legal support to boost the now-fragile press’s watchdog functions—including, for example, to combat state law anti-press initiatives; to seek clarifications of the Espionage Act and other press-affecting statutes such as the CFAA; and to enhance waning documentary access under the FOIA and state sunshine rules.

Still, the attempt to enact new press protections should not distract from the need to conduct a defensive campaign addressing the erosion of existing rights and agreed-upon practices regarding publication. For example, close attention must be paid to resisting the call to reverse The New York Times Co. v. Sullivan; addressing changes to existing appeal bond statutes and other procedural hurdles for press defendants; reinforcing state-level protections; and arguing against the strategic and chilling deployment of non-media legal doctrines to the press.

One of the difficulties for this reclamation project is the recent reframing of defamation law as a weapon to combat disinformation. Press advocates, however, will need to remind the courts (including the Supreme Court) that individual defamation suits are not particularly effective tools to suppress political disinformation in most cases and that most journalism today is not in fact “fake news” or disinformation as charged. Likewise, they should warn the courts against generalizing on the basis of the most high-profile examples of journalistic failure. It will be necessary to attack developing anti-press presumptions by demonstrating the value of free-press first principles to democratic challenges today.

All this will involve litigation as well as lobbying, activism and scholarly work. One of the more hopeful developments in effective resistance to the “fake news” trope is the increase in the number of media law clinics in American law schools. A revival of pro bono work by the First Amendment defense bar through outside funding would also further reinforce the project of protecting the existing protections for press functions in legal doctrine and policy.

Because today’s legal approach to press functions reflects both press protections and retrenching trends, this Essay recommends a mixed legal strategy focusing on both new press-protective legislation to boost accountability journalism and a set of reframed arguments to support traditional protections under federal, state and common law. Although legal uncertainty may invite activism by the plaintiff’s bar at the same moment that a fragile and risk-averse press has incentives to overinterpret doctrinal ambivalence as prohibition, uncertainty also leaves room for revision, and the press’s modern legal status is not yet fixed. A two-pronged legal strategy arguing for new newsgathering protections while showing the benefits of existing press rights and their history might bear some fruit before rollbacks of press rights become set in stone.

Technological impacts and the special case of generative AI

Now is the moment for news organizations to address issues of design and boundaries for use of generative AI tools in newsrooms without succumbing to the binary—utopian and dystopian—hype about AI. News organizations should adopt AI standards after a realistic and granular analysis of where the benefits of AI tools for press functions will outweigh the risks and costs. Who is invited to the table in standard-setting is critical as well.

Another fundamental issue concerns building journalistic values into AI tools to be used by the press. Observers suspect that it would not be cost-effective for most news media to build their own, journalism-focused generative AI tools. As many have already done, press organizations could rely on off-the-rack products created by commercial AI companies. Query then how to ensure the centrality of journalistic values.

Moreover, relying on tech company products exposes news organizations to the dangers of lock-in—such as changes in pricing, availability, design decisions, access, and utility. Without specifically negotiated contract terms, these decisions would all be made by the technology companies and platforms. Realistically, then, the decisions of tech companies will impact journalistic work both methodologically and substantively.

Another issue to be addressed in negotiations between news organizations that rely on commercial AI products and their AI companies should be the question of access to their information regarding how their products and services work, including training data and error rates for gen AI applications.

Journalists who worry about the ways in which non-transparent editorial decisions by an oligopoly of powerful first movers in the generative AI space could constrain reportorial functions and editorial discretion might consider collaboration with universities and other non-profit partners engaged in the development of alternatives to commercial AI company products. Government funding and access to resources for such research and partnerships could help advance such collaborations.

Rethinking industry structure and the distribution of the press’s multiple functions

Under today’s precarious circumstances, it is also worth considering the extent to which structural, organizational, and process-focused changes could advance press functions today. The current picture of the news industry should make us question whether traditional notions of outlet generalism, news organization competition, institutional-structure type, and homogeneity of journalistic standards continue to be either realistic or beneficial for the public.

For example, at a time of decreasing economic resources for journalism, it would be unreasonable to expect that each news outlet or self-defined TikTok journalist could serve all these functions particularly well. Not every news organization can seek to undertake all the press functions that courts have heretofore celebrated. Nor, perhaps, should they. Perhaps press conditions now require us to explore questions about the order of primacy of possible functions and which entities are best positioned to perform them. Perhaps audiences do not need blanket coverage of the same events by every outlet. Perhaps funding and attention should focus on areas in which news failures have already demonstrated public harm. Perhaps different outlets should offer the public different forms of journalism.

Competition norms too are worth challenging, both as to reporting and as to developing journalism-native generative AI models. There have already been examples of important reporting via collaboration rather than the traditional attitude of commercial press competition. A shift from a competitive to a collaborative mindset could well enable greater impact for the resulting journalistic output. Collaborations with journalism schools and student reporters could also help.

Enhancing public trust

Ultimately, the robustness of the press function depends on public trust—so ensuring its viability involves sustained inquiry into reversing public distrust of the press. This requires extensive empirical and interdisciplinary study—including by political scientists, social psychologists, media scholars, and cognitive scientists—of the bases for press distrust and of how people change their minds. While existing studies have already documented confirmation bias with respect to particular issues as to which there is no consensus, what about the possibility of enhancing trust in less controverted and politicized contexts? Trust does not have to be an all-or-nothing matter.

Moreover, since empirical research thus far indicates that distrust in the press has been asymmetrical between Democrats and Republicans, with conservatives having significantly more distrust in the mainstream press, further granular exploration of the particular barriers to trust on the conservative side could be helpful in increasing the effectiveness of trust-promoting interventions. Additional work on the spread and debunking of conspiracy theories is also called for in the research mix.

Journalists and news organizations themselves are far from free of blame. Self-examination and diagnostic attention to their own practices and methods are necessary. The press could study and advance effective types of fact checking. Just as there was value—at least aspirationally—to the demarcation between “hard news” and “opinion” or “op-ed pages” in the traditional newspaper, the failures of Fox News teach us that today’s news purveyors should work to distinguish opinion to the extent possible. As for partisan complaints of press bias, failure to disclose the reporter’s slant, the nature of the newsgathering and reporting process, the information on which an article’s conclusions rest could reasonably undermine audience trust and be addressed consistent with professional norms. Journalists could build reputations vis-à-vis expertise, ideological vantage point, reliability, and type of journalistic focus. In light of the likelihood of increased disinformation via increasingly believable deepfakes, journalists should focus on combating “manipulation of large-scale public opinion trends” by the spread of false information.

It would also be worthwhile for researchers and journalists to inquire further into what functions today’s various audiences think are properly those of the press. Although this does not mean that the press should simply respond to what audiences assertedly want, or that there is no room today for traditional watchdog journalism, it does suggest the benefits to news professionals of better understanding the range of public expectations. A recent Pew Research Center report indicates that although many Americans rely on social media for news, there has been a material increase in the number of people who are concerned about inaccuracy. So even if Americans report increased distrust in the press, many also express a desire for accurate news and information—which leaves room to shift at least some assumptions about the reliability of the press.

A well thought-out and evidence-based approach to media literacy would also be beneficial. This could be particularly constructive when joined by community engagement on the press side when research reveals disconnects between press and public expectations.

Structural and policy changes responsive to shifts in press practices as discussed above could also address public concerns. For example, reports suggest that the crisis of trust in national journalism is not yet accompanied by equivalent distrust of local news. Therefore, a focus on increasing the sustainability of local news might also help chip away at the media distrust problem.

Finally, we should not forget that distrust in the press is only one aspect of declining public faith in institutions generally. It is worth exploring whether press reporting on and explaining the work of other contested institutions—such as, for example, the administrative state—could indirectly serve to enhance the perceived legitimacy of both.


An effective press sector consisting of a variety of actors committed to journalistic values can support democracy. It can know, inform, and educate its many publics. It can discover what the powerful do not want discovered, act as watchdog, dispel disinformation, and help sustain local and underrepresented communities. Shoring up these functions for the press is a worthwhile enterprise in the public interest. But today’s economic, technological, legal, professional and consumer contexts are a far cry from those of the press’s Golden Age. Still, the press and its allies should continue to proselytize the value of journalism’s ideal functions—while acknowledging the instances in which the modern press fails to meet the mark. They should pressure test reform proposals for viability; develop responsible technology policies; revisit antiquated functions and industry expectations; and use the lessons of inter-disciplinary research to explore effective ways to counter public distrust. They should also call for normalizing self-examination across the entire sector to enhance compliance with fundamental journalistic norms. Such targeted steps can help rehabilitate journalism’s public role and allow society to reap the benefits of an independent press. We ought not surrender this promise.


I am grateful to Lyrissa Lidsky for her very helpful comments on this essay.