Introduction

Elementary democratic theory holds that self-governance requires a free—and, by implication, a functional—press system.1 1. Under standard First Amendment theory, it is generally recognized that a key feature of speech and press freedoms is to cultivate an informed citizenry. See, e.g., Robert Post, Participatory Democracy and Free Speech, 97 Va. L. Rev. 477 (2011). However, today, much of the American press infrastructure is being dismantled by a deeply systemic market failure, with little hope for self-correction. While significant democratic deficits have always existed in American journalism, it is becoming glaringly obvious that a purely commercial press system cannot provide for a multiracial democratic society’s basic information and communication needs. At the time of this writing, the United States has lost nearly one-third of its newspapers and two-thirds of its journalists since 2005—a profound structural crisis that promises to significantly worsen in the coming years.2 2. Penny Muse Abernathy, The State of Local News: The 2024 Report, Medill Local News Initiative (Nov. 16, 2023), https://localnewsinitiative.northwestern.edu/projects/state-of-local-news/2023/report/.  It is no longer debatable that the advertising-dependent business model that supported commercial journalism for well over a century has irreparably collapsed. Systemic alternatives are desperately needed.

If democracy requires a press regardless of its profitability, it is incumbent upon society to develop a rationale for why the government must guarantee a baseline level of news and information for all members of society, not just the privileged few who happen to live in affluent neighborhoods. Otherwise, we guarantee a future of informational redlining and market censorship in which entire communities will be consigned to living permanently in news deserts, effectively disenfranchised from media production, dissemination, and consumption—and from fully participating in everyday civic life.3 3. I examine the structural roots of the journalism crisis and their implications for democratic self-governance in Victor Pickard, Democracy Without Journalism? Confronting the Misinformation Society (2020).

Providing universal public service journalism to everyone requires ambitious, long-term, structural reforms—most likely involving the creation of an entirely new public media system.4 4. For a discussion about the necessity and feasibility of creating a a new public media system, see id. Given the unlikelihood of a commercial solution emerging to support local journalism at a systemic level, only the federal government has the resources and political power to create such a system. Generating the political support needed for initiating this massive project obviously will require much discursive, ideological, and legal work to shift the prevailing market-libertarian “common sense.” Toward this admittedly long-term project, we must first legitimize the federal government’s intervention in the commercial media marketplace to ensure the existence of a press system.

With an eye toward such a lofty objective, this chapter aims to articulate a positive-rights paradigm that marshals contemporary, historical, and international legal frameworks to argue that government should have an affirmative duty to guarantee meaningful access to news and information for everyone. Drawing from democratic, legal, and economic theories, the chapter builds on a long lineage of argumentation—from Alexander Meiklejohn and Jerome Barron to more recent arguments advanced by C. Edwin Baker and Martha Minow—for why the First Amendment does not forbid government interventions that promote journalism. If we assume that press freedom is rendered meaningless without a press to protect, we arguably should go even further to compel the government to make targeted and democratically determined interventions into the media marketplace to guarantee public alternatives when private commercial media institutions fail to serve democratic needs.5 5. See, e.g., Alexander Meiklejohn, Free Speech and Its Relation to Self-Government (1948); Jerome A. Barron, Access to the Press—A New First Amendment Right, 80 Harv. L. Rev.1641 (1967).

The aim of this chapter, therefore, is threefold. First, I discuss the special nature and necessity of positive rights for guaranteeing a viable press system within democratic societies. Then, I explore their manifestations in international, historical, and contemporary legal doctrines, especially in state constitutions, which arguably are the most promising sites for positive-rights formulations with respect to the press. Finally, I conclude with a discussion on an ambitious paradigm shift grounded in positive-rights discourse that envisions a structural transformation of the existing press system—what I refer to as “non-reformist media reforms.”

Why We Need Positive Rights

What do we mean by “positive rights,” and why do we need them? Drawing a useful, if imperfect, dichotomy from Isaiah Berlin’s classic essayTwo Concepts of Liberty, we can understand discourses around speech and press freedoms as falling under either negative liberties (“freedom from”) or positive liberties (“freedom to”).6 6. Isaiah Berlin, Two Concepts of Liberty, in Four Essays on Liberty (Henry Hardy ed., 1969). Broadly speaking, negative rights are associated with the absence of obstacles to freedom, whereas positive rights aim to maximize individuals’ full potential, allowing them to make their own decisions and exercise agency over their own lives.

Positive rights typically require state action to provide a particular service or benefit, whereas negative rights require the government to refrain from doing something. As political theorist Emily Zackin succinctly summarized: “Negative rights are the bases of demands for restraint by the government, while positive rights are the bases of demands for intervention.”7 7. Emily Zackin, Looking for Rights in All the Wrong Places: Why State Constitutions Contain America’s Positive Rights 41(2013). In highly inegalitarian societies such as the United States, achieving positive rights necessitates redistributing power. The Australian legal scholar Andrew Kenyon observed that positive rights promote participatory democracy because they “aim to give voice to the marginalized and support material and social preconditions for participation [in society].”8 8. Andrew Kenyon, Democracy of Expression: Positive Free Speech and Law 220 (2021).

When applied to media, an emphasis on positive rights often seeks to protect collective rights held by publics and audiences as much as those held by individual persons or corporations as speakers. This position casts doubt on the question of whether unregulated market-based relationships alone could ever fully support essential positive freedoms, such as guaranteeing access to high-quality, diverse media. Therefore, protecting and promoting positive rights typically necessitates more direct government intervention.

In the United States, however, protecting speech and press freedoms historically has been framed in negative terms, as exemplified by the First Amendment, which states that “Congress shall make no law . . . abridging the freedom of speech, or of the press.” This wording contains an implicit assumption that the only barrier to realizing such freedoms is the government. The prioritization of negative rights based on this interpretation has long impoverished American policy debates regarding positive press freedoms, which has, in turn, disproportionately benefited media corporations’ rights over the public while rendering the government less likely to intervene.

An emphasis on negative rights notwithstanding, what does the legal and democratic theory literature actually tell us? It shows us that, in fact, a well-established, if somewhat lesser-known, body of legal theory values positive freedoms in our media at least as much as negative ones. Since the dawn of the American republic, a tacit assumption has existed that government must intervene to protect such rights. This tradition, which became more pronounced in the New Deal era and continues to the present day, has the potential to revitalize the American regulatory imagination and reorient policy agendas toward confronting systemic market failure and the ever-worsening journalism crisis.

Leading constitutional law scholars have long acknowledged the government’s necessary role in promoting positive press freedoms that considered not just the freedoms of the press owners but also those of the public. For example, Thomas Emerson suggested that subsidies might be necessary to enable citizens to voice opinions in the commercial press and that the government had an “affirmative power” to support infrastructures that protected a public’s “right to hear.”9 9. Thomas I. Emerson, The System of Freedom of Expression 649 (1970). See also Kenyon, supra note 8, at 221; Mike Ananny, Networked Press Freedom Creating Infrastructures for a Public Right to Hear (2018). Elsewhere, he argued for an “affirmative First Amendment” through which government intervention could be justified if it promoted greater opportunity for expression and increased diversity of viewpoints and voices in the public sphere.10 10. Thomas I. Emerson, The Affirmative Side of the First Amendment, 15 Ga. L. Rev. 795 (1981). It should be noted that Emerson advocated for a distinction drawn between “governmental promotion” (e.g., subsidies that enhanced private speech) as opposed to “governmental participation” (e.g., situations where the government continues to own and control).

More recently, former Harvard Law School Dean Martha Minow argues in her book, Saving the News, that while the First Amendment forbids abridgement of U.S. citizens’ freedoms, it does not forbid the government from intervening to ensure such freedoms exist. Minow also suggests, per a review of the extant literature, that “[t]he First Amendment’s presumption of an existing press may even support an affirmative obligation on the government to undertake reforms and regulations to ensure the viability of a news ecosystem.”11 11. Martha Minow, Saving the News Why the Constitution Calls for Government Action to Preserve Freedom of Speech 98 (2021) (emphasis added). See also Susan Bandes, The Negative Constitution: A Critique, 88 Mich. L. Rev. 2271 (1990); Gillian E. Metzger, The Supreme Court 2016 Term—Foreword: 1930s Redux: The Administrative State Under Siege, 131 Harv. L. Rev. 1 (2017); David P. Currie, Positive and Negative Constitutional Rights, 53 U. Chi. L. Rev. 864 (1986). 

Similar arguments for more positive rights vis-à-vis the press have accumulated in recent years. In 2010, for example, former Columbia University President Lee Bollinger authored an op-ed in The Wall Street Journalti­tled Journalism Needs Government’s Help.12 12. Lee Bollinger, Journalism Needs Government’s Help, Wall St. J. (July 14, 2010, 12:01 AM), http://online.wsj.com/article/SB10001424052748704629804575324782605510168.html. Around the same time, other legal scholars argued that press subsidies are not only consistent with U.S. history and international standards but also constitutional.13 13. See, e.g., David Schizer, Subsidizing the Press, 3 J. Legal Analysis1 (2011); Brad Greenberg, A Public Press? Evaluating the Viability of Government Subsidies for the Newspaper Industry, 19 UCLA Ent. L. Rev.189; A New Age for Newspapers, Diversity of Voices, Competition and the Internet: Hearing Before the Subcomm. on Courts and Competition Policy of the H. Comm. on the Judiciary, 111th Cong. 62 (2009) (statement of C. Edwin Baker, Professor, University of Pennsylvania Law School), as reprinted in Will the Last Reporter Please Turn out the Lights: The Collapse of Journalism and What Can Be Done About It 128–30 (Robert McChesney & Victor Pickard eds., 2011).

Similarly, scholars have long argued that the mere absence of state intrusion does not automatically guarantee press freedoms.14 14. Kenyon, supra note 8. See also Damian Tambini, Media Freedom (2021). These arguments are buoyed by a continuous—if often overlooked—tradition of legal discourse that legitimates affirmative government intervention to protect the press. Moreover, this affirmative tradition sees such positive rights as superseding the protection of individual liberties and serving as a kind of social protection of the press.

These special protections are further evidenced by what appears to be a constitutional carve-out for the unique democracy-enabling status of the press as an institution—notably, the only private industry guaranteed such special constitutional protections. One often-cited example is Supreme Court Justice Potter Stewart’s argument that First Amendment protections exceed individuals’ speech freedoms to treat the press as an autonomous and necessary institution, thereby rendering support for a free press “a structural provision of the Constitution.”15 15. Justice Potter Stewart, Address Before Yale Law School (Nov. 2, 1974), in 26 Hastings L.J. 631, 633 (1975). At the very least, press freedom, in this context, can be interpreted as serving society as a whole and not merely individual press owners.16 16. See Sonja R. West, The Majoritarian Press Clause, 2020 U. Chi. Legal F. 311, 314 (2020). Moreover, under this interpretation, the press can be seen as engaging in special institutional First Amendment activities and performing an important proxy role for broader publics.17 17. RonNell Andersen Jones, Press Speakers and the First Amendment Rights of Listeners, 90 Colo. L. Rev. 499 (2019).

Such statements—some supporting positive rights more generally and others dealing directly with press freedoms—suggest that the First Amendment’s primary purpose is not only to shield us from government tyranny but also to create greater potential for human freedom and to support democratic governance writ large. In other words, this doctrine also has the potential to serve as a commitment to protecting and expanding positive press rights for the collective good that, in turn, promotes and enhances greater capabilities for participatory democracy. This positive-rights project is further legitimated by situating it historically.

Positive rights in historical perspective

Throughout history, a long-standing debate has centered on the intended meaning of the “or of the press” clause in the U.S. First Amendment, which is a categorical differentiation from “freedom of speech.” For example, First Amendment scholar Steven Shiffrin notes that Supreme Court decisions notwithstanding, much existing jurisprudence and case law suggests that the Press Clause confers special privileges on the press. Shiffrin argues that “the New York Times is not a fertilizer factory,” and it should not be treated like an ordinary business.18 18. Steven Shiffrin, What’s Wrong with the First Amendment? 126–27 (2016).

Another leading First Amendment scholar, Robert Post, similarly argues that press freedoms require special considerations and protected rights in society. He observes four distinct constitutional values that are often attributed to the press, implying a wide array of rights: (1) the value of public discourse; (2) the Meiklejohnian value of distributing information; (3) the checking (against abuses of power) value; and (4) the value of the public sphere.19 19. Robert Post, The Press and American Democracy, in The Future of Press Freedom: Democracy, Law, and the News in Changing Times __ (RonNell Andersen Jones & Sonja R. West eds., 2025) [hereinafter The Future of Press Freedom]. Likewise, some historical evidence suggests that the First Amendment’s original framers considered the press to be an autonomous institution whose special constitutional protections went beyond supporting individuals’ speech freedoms.20 20. Charles Clark, The Press the Founders Knew, in Freeing the Presses: The First Amendment in Action33–50 (Timothy Cook ed., 2005).

Indeed, at the time when the Bill of Rights was drafted, the founders had already begun to recognize “the press” as a discrete institution based on specific political-economic arrangements with broader public responsibilities than typical businesses.21 21. Freeing the Presses: The First Amendment in Action 8 (Timothy Cook ed., 2005). Leading figures of the early American republic argued for not only the importance of supporting the press as an institution but also the need for protecting the public’s access to it. Advocating for a balanced range of diverse viewpoints, Benjamin Franklin suggested that members of the public should have a positive right to express themselves in the press.22 22. Id. Moreover, it is well known that prominent framers of the Constitution argued emphatically that the press plays a special role within a democracy and that, as an institution, it must be protected.23 23. See, e.g., James Madison’s assertion that “the means of acquiring [popular information]” was both tragic and farcical: James Madison, James Madison to W.T. Barry, in 1 The Founders’ Constitution 103–09 (Philip Kurland & Ralph Lerner eds., 1987).

Media historian Robert Martin refers to these assumptions as part of the “open press doctrine,” which extended well beyond simply preventing state interference in news media to also considering the press’s obligations to the public. He argues that newspapers were not seen merely as private property but also as collective goods. This positive-rights discourse, he suggests, was as much “in the air” at the time of the founding as were libertarian concerns about government encroachment on individual freedoms.24 24. Robert Martin, The Free and Open Press: The Founding of American Democratic Press Liberty, 1640–1800 (2001).

One need not resort to originalist explanations to make the case for special press protections that exceed freedom of speech rationales. In more recent years, a growing body of research focusing on “press exceptionalism” convincingly shows that media institutions and individuals engaged in press-related activities deserve special protection and consideration under the law.25 25. See, e.g., Sonja R. West, Press Exceptionalism, 127 Harv. L. Rev. 2434 (2014). This work may lead to useful insights into the Press Clause that could bolster the argument that direct government support of the press is constitutional. For example, legal scholar Luke Morgan argues that the First Amendment should be interpreted as protecting an “institutional press,” not just individual disseminators of press content, which could empower the government to make more aggressive interventions into the media marketplace that might otherwise be deemed unconstitutional under the Free Speech Clause.26 26. Luke Morgan, The Broken Branch, Capitalism, the Constitution, and the Press, 125 Penn St. L. Rev. 1 (2020). See also Paul Horwitz, First Amendment Institutions (2013); Frederick Schauer, Principles, Institutions, and the First Amendment, 112 Harv. L. Rev. 84 (1998). Thus far, however, instead of expanding definitions of the press, the Supreme Court has progressively truncated its definition (and, indirectly, its protections) over time.27 27. RonNell Andersen Jones & Sonja R. West, The U.S. Supreme Court’s Characterizations of the Press: An Empirical Study, 100 N.C. L. Rev. 375 (2022). Worryingly, the authors have found that the Court has in recent years stopped invoking the Press Clause.

Nonetheless, history more broadly shows us that the American government has always been centrally involved in the development and communication of information in both proactive and positive ways. The belief that Americans must have access to reliable and diverse information—and that the government had an affirmative duty to help provide such services, especially when the market alone fails to support news media—justified massive state investments in the country’s first major communications network: the postal system. From its earliest days, this system served primarily as a news-delivery infrastructure, with newspapers constituting as much as 70 percent of mail delivered in the 1790s and 95 percent in the 1830s.28 28. Richard John, Spreading the News: The American Postal System from Franklin to Morse 38 (1995).

During the first major national debate over American media policy, the founders of the U.S. government concluded that they should not mandate that the postal service be financially self-supporting, thus prioritizing its educationalpurpose. In doing so, they rejected what the historian Richard John terms a “fiscal rationale.”29 29. Id., 47–48. Instead, they privileged the press system’s essential service to democracy and helped finance it via massive postal and printing subsidies that today would translate to tens of billions of dollars. This viewpoint- and content-neutral commitment to subsidize news media not only required a particular normative vision of a press system’s vital role within a democratic society, but it also recognized that the market alone could not provide the levels of journalism that an informed citizenry requires, thus demonstrating why preserving such positive rights require affirmative protections from the state.

An Unfinished Project

Throughout the 20th century, democratic theorists, media critics, reformers, policymakers, and social movements wrestled with but largely failed to establish a firm positive theory of press freedom.30 30. For book-length treatments of these histories and these debates, see Victor Pickard, America’s Battle for Media Democracy: The Triumph of Corporate Libertarianism and the Future of Media Reform (2015); Sam Lebovic, Free Speech & Unfree News: The Paradox of Press Freedom in America (2016). This outcome was less the result of an ideological constraint or lack of political imagination—though in many cases, these deficiencies were certainly contributing factors—and more a consequence of the repressive backlash against a social democratic media reform project in the 1930s and 1940s.

The postwar 1940s witnessed a roiling debate around determining the normative role of the press in a democratic society. For example, the Hutchins Commission on Freedom of the Press convened a group of the nation’s leading intellectuals to define press freedoms and formulate the best means of protecting them. Despite issuing clear articulations of valuing positive rights in defining press freedoms—especially those put forth by William Hocking, who, in his solo-authored contribution to the Commission, likened the press to that of a “public utility in private hands,” speculating it should be treated as a common carrier and promising a public right to the press”31 31. William Hocking, Freedom of the Press: A Framework of Principle 174 (1947).—the Hutchins Commission ultimately fell back on mostly industry-friendly positions. Their conclusions later became narrated as the “social responsibility” model of the press, which, in many ways, recapitulated the libertarian model while holding out some hope for a more positive-rights-based model.32 32. Pickard, America’s Battle for Media Democracy, supra note 30, at 124–89. See also Victor Pickard, “Whether the Giants Should Be Slain or Persuaded to Be Good”: Revisiting the Hutchins Commission and the Role of Media in a Democratic Society, 27 Critical Stud. Media Commc’n 391 (2010).

The debates of the 1940s over defining press freedoms coincided with a reckoning around the failures of commercial broadcast media.33 33. For an essay about the 1940s battles over radio regulation and their contemporary implications, especially for social media regulation, see Victor Pickard, The Great Reckoning, 22-03 Knight First Amend. Inst. (Feb. 24, 2022), https://knightcolumbia.org/content/the-great-reckoning. After reformers mostly failed in their efforts to establish a more social democratic vision for media, their policy battles over radio’s normative role in a democratic society culminated in codifying some modest positive freedoms by the end of the decade, such as those represented by the much-maligned Fairness Doctrine.34 34. Victor Pickard, The Strange Life and Death of the Fairness Doctrine: Tracing the Decline of Positive Freedoms in American Policy Discourse, 12 Int’l J. Commc’n.3434 (2018).

Seeing at least a partial turn toward positive rights, the mid-20th century witnessed a kind of “greatest hits” for championing positive freedoms, especially in a couple of high-profile Supreme Court opinions. First is the Supreme Court’s 1945 Associated Press (AP) decision, which considered the AP’s contention that its First Amendment rights exempted it from federal antitrust restrictions. The Court dismissed this argument and instead asserted that the First Amendment assumes the “widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.”35 35. Associated Press v. United States, 326 U.S. 1, 20 (1945). The Court further declared that it would be decidedly “strange” to assume that “the First Amendment should be read as a command that the government was without power to protect that freedom.”36 36. Id.

More than two decades later, in its 1969 Red Lion decision, the Supreme Court again relied on a positive-rights framework to uphold the Fairness Doctrine. The Court held that, when considering First Amendment protections, “It is the right of the viewing and listening public, and not the right of the broadcasters, which is paramount.”37 37. Red Lion Broad. Co., Inc. v. FCC, 395 U.S. 367, 368 (1969). The Court further stated that “[i]t is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here.”38 38. Id. at 390. The Court’s privileging of the collective public rights of audiences over those of private broadcasters was arguably the pinnacle of such positive-rights discourse.

This reasoning, however, did not prevail several years later with regard to print media in the Tornillo decision, in which the Supreme Court unanimously struck down a Florida law that granted the positive right of a “right to reply” for political candidates whose personal character had been impugned by newspapers.39 39. Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241 (1974). Hence, positive rights did not extend as far to the press as they had with broadcasting. Other media, such as telecommunications, have seen a mixed legacy, including the pronouncement at times of government interventions to support positive freedoms, especially in the areas of state action doctrine, must carry obligations, and common carriage.40 40. For an overview of this affirmative first amendment protections for telecommunications, see Dawn C. Nunziato, Virtual Freedom: Net Neutrality and Free Speech in the Internet Age (2009). See also Matthew Bunker & Charles Davis, The First Amendment as a Sword: The Positive Liberty Doctrine and Cable Must-Carry Provisions, 40 J. Broad. & Elec. Media 77 (1996). Positive-rights discourse also has been central to the ongoing debates over net neutrality, which the Federal Communications Commission recently reinstated.41 41. Victor Pickard & David Berman, After Net Neutrality: A New Deal for the Digital Age (2019).

This long history notwithstanding—including landmark cases and court decisions that contained or implied positive-rights readings of First Amendment protections—legal theories featuring positive rights have not served as the foundation for extensive jurisprudence toward press protections. The negative-rights paradigm so prevalent in the United States is often assumed to be a natural fixture of the American legal and ideological landscape. Any attempt to establish positive rights backed up by redistributive, regulatory, and protective measures, according to the dominant view, is not constitutionally mandated and, at the very least, would require majoritarian congressional support.

The U.S. negative-rights orientation, with its focus on limiting government intrusion into people’s everyday lives, differs from the approaches taken in the vast majority of democratic federal constitutions around the world. In most democratic countries, the government has an affirmative duty to guarantee positive rights. In the United States, however, the federal Constitution’s First Amendment, which emphasizes negative freedoms, provides the primary legal protection for expressive rights, including speech and press-related freedoms.

Emily Zackin argues that the lack of “governmental protection from social and economic privation,” where states intervene to protect their citizens from nongovernmental threats and harms, evidences an “American Constitutional Exceptionalism.”42 42. Zackin, supra note 7, at 4–6. Although many have assumed that such anti-statist, classically liberal proclivities have always been hegemonic in the United States, stemming from a commitment to laissez faire capitalism, the protection of private property, and a deep suspicion of government interventions since the nation’s earliest days, Zackin convincingly argues otherwise. In line with recent revisionist historical research, she suggests that the American libertarian tendency is more contingent and less culturally pre-determined. In fact, ample evidence from the states reveals the existence of other American intellectual and democratic traditions founded on positive rights.

Likewise, Jessica Bulman-Pozen and Miriam Seifter recently argued that, unlike the federal Constitution’s exclusive emphasis on negative rights, state constitutions are more likely to enshrine positive rights and affirmative government duties. They also note that state constitutions, in contrast to the federal Constitution’s focus on individual liberties, “temper strong rights with attention to communal welfare . . . [and] treat rights as a means of guaranteeing democracy as well as personal freedom.”43 43. Jessica Bulman-Pozen & Miriam Seifter, The Right to Amend State Constitutions, 133Yale L.J. 191, 194 (2024). I look more closely at some of these formations in the next section.

Positive Rights in State Constitutions

In seeking out more expansive articulations of the necessity for protecting positive freedoms, especially as they relate to the press, we may look at how they are rendered in state constitutions.44 44. I am indebted to Katherine Glenn Bass’s suggestion and to Mia Speier’s superb research assistance in writing this section. I am also indebted to Christina Koningisor for generously sharing her extensive research on positive articulations in state constitutions. For an examination of this research, please see her essay “The Other Press Clauses,” published as part of this collection. Indeed, more positive equivalents of this doctrine are readily found in state constitutions across the country. Many state constitutions include articulations of positive rights protecting speech and press freedoms that were adopted prior to the existence of the federal First Amendment. Some of these statements and declarations offer greater protections than those grounded in the U.S. Constitution and sketch out a more expansive notion of the government’s affirmative duties toward press provisions.

While language affirming positive rights often falls loosely under rubrics such as the public’s “right to education”—nearly always implied rather than explicitly stated—support for press-related freedoms is more infrequent. Nonetheless, examples of positive-rights language in state constitutions are relatively common and suggest an underutilized potential for supporting journalism. And in some cases, support for positive press freedoms is relatively explicit.

The press-specific provisions of many state constitutions have mirrored the federal First Amendment, but some contain language that is considerably more grounded in positive rights. For example, Steven Calabresi and Sarah Agudo note that Missouri’s “expression clause” states that “the free communication of thoughts and opinions is one of the invaluable rights of man, and that every person may freely speak, write and print on any subject.”45 45. This clause is singled out for attention in Steven G. Calabresi & Sarah E. Agudo, Individual Rights Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition?, 87 Tex. L. Rev. 7, 41 (2008). Many other states have similar clauses that are remarkably expansive in their positive rights-oriented framing of expressive rights.

The Pennsylvania constitution goes so far as to feature language that seemingly guarantees public access to printing presses for government reporters. In Article 1, Section 7, the Pennsylvania constitution states: “The printing press shall be free to every person who may undertake to examine the proceedings of the Legislature or any branch of government . . . .”46 46. Pa. Const. art. I, § 7. Pennsylvania has what can be seen as dual press clauses: one appears as an individual right and the other is treated as part of the structure of the government. For a discussion of this case, see Sonja West, The “Press”: Then and Now, 77 Ohio St. L.J. 49 (2016), https://digitalcommons.law.uga.edu/fac_artchop/1067/. Specifically stressing the importance of public investigation into matters of public interest, this wording suggests special protections for the press’s unique watchdog role. Such articulations of press freedoms in Pennsylvania, which emerged within discourses that imply the importance of an institutional press, inspired strong positive language in other state constitutions.47 47. Seth F. Kreimer, The Pennsylvania Constitution’s Protection of Free Expression, 5 U. Pa. J. Const. L. 12 (2002). For example, the Kentucky state constitution also declares that “[p]rinting presses shall be free to every person who undertakes to examine the proceedings of the General Assembly or any branch of government.”48 48. Ky. Const. § 8.

New York state courts have often gone beyond the boundaries delineated in the federal First Amendment to extend press freedom protections to journalists and media institutions.49 49. Erin M. Peradotto, Safeguarding Freedom of Speech and of the Press in New York With Heightened State Constitutional Protection, 92 N.Y. St. Bar Ass’n J. 12 (2020). Their embrace of positive rights is even more pronounced around government guarantees for public education. For example, the New York Court of Appeals has interpreted the state constitution’s Education Article to mean that the state is required to provide students with the opportunity for a “sound basic education.”50 50. Levittown Union Free Sch. Dist. et al. v. Nyquist, 57 N.Y.2d 27, 48 (1982);Campaign for Fiscal Equality v. State of New York, 86 N.Y. 2d 307, 315 (1995) It also seems clear that the New York state constitution directs the state to maintain and support a system of free common schools that serve a social, collective right and prevent education from being dictated by class-based inequities.

Some states’ amenabilities to expansive interpretations of press freedoms might signal openness to new arguments even where positive-rights analysis has not yet been embraced. For example, California has long been a national leader in demonstrating greater protections for press freedom than federal law, especially for student journalists and student media.51 51. See A Guide to California’s Student Press Freedom Laws, Student Press Law Ctr., https://splc.org/know-your-rights-california/ (last visited June 21, 2024). While we might see protections for student journalists as an example of negative rights in protecting themfrom obtrusive government meddling and censorship, this case also demonstrates how states can provide greater press protections than the federal government. It also highlights states’ capabilities for expanding the legal and statutory understanding of whoqualifies as a protected member of the press. California also contains positive language for the public having a “right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny . . . .”52 52. Cal. Const. art. I, § 3.

In light of these glimmers of more positive rights for the press, it is worth considering how we might go further to expand public rights whereby citizens can establish “standing” or a redressable claim for meaningful access to the press (just as they might with public education). Looking at the history of how public education became constitutionally protected in the states holds potential lessons for how we might create a new public media system—a point I plan to revisit in future research. At the very least, this history suggests the necessity of framing such arguments in terms of class-based and racial inequities, emphasizing that only wealthier and whiter neighborhoods have access to high-quality journalism.

For now, suffice it to say that regardless of our precise strategic vision, which I return to later in the chapter, one of the benefits of focusing on state-level initiatives is that they often reflect national priorities and advance important debates that have been stymied or given too little attention at the federal level. Moreover, they can offer proofs of concept that widen our political imagination regarding what the government can do in the face of a structural journalism crisis and, more specifically, how it can protect the press from systemic market failure, as well as provide public access to such institutions. International articulations of press rights—including those found in other countries’ constitutions, international bodies, and even U.S. global media—are another key repository of positive-rights discourse and can help denaturalize the belief in U.S. constitutional exceptionalism. I turn to these next.

Positive Rights in International Codes and Laws

Generally speaking, positive freedoms are more established in press-related doctrines and codes internationally compared to the United States. One notable example is Article 19 of the United Nations Declaration of Human Rights—sometimes associated with the right to communicate—which codifies the right to “receive and impart information and ideas through any media.”53 53. Universal Declaration of Human Rights art. 19, G.A. Res. 217A, at 71, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948). The European Convention on Human Rights, Article 10, has almost identical language. Convention for the Protection of Human Rights and Fundamental Freedoms art. 10, opened for signature Nov. 4, 1950, 213 U.N.T.S. 221 (entered into force Sept. 3, 1953). This code has long inspired international media reform efforts, often used to advocate for expanding public access to media institutions.

However, perhaps counterintuitively, positive rights formulations are also present in some existing codes around U.S. global media. Indeed, traces of similar principles are rearticulated in statements delineating the normative mission of U.S. international broadcasting services.54 54. I am indebted to Matthew Conaty’s research assistance with the following analysis on U.S. international broadcasting. For example, in its International Broadcasting Act of 1994, Congress stated the following in the first of five declarations about its commitments to international broadcasting: “It is the policy of the United States to promote the right of freedom of opinion and expression, including the freedom ‘to seek, receive, and impart information and ideas through any media and regardless of frontiers,’ in accordance with Article 19 of the Universal Declaration of Human Rights.”55 55. United States International Broadcasting Act of 1994, 22 U.S.C. § 6201. 

Congress further defined its commitment to a positive mission of news media in language that championed the “[o]pen communication of information” that was “based on reliable information about its potential audience” and “designed so as to effectively reach a significant audience.”56 56. 22 U.S.C. § 6202. Moreover, professional standards for international broadcast journalism shall include the following:

“a balanced and comprehensive projection of United States thought and institutions, reflecting the diversity of United States culture and society … programming to meet needs which remain unserved by the totality of media voices available to the people of certain nations; information about developments in each significant region of the world; a variety of opinions and voices from within particular nations and regions prevented by censorship or repression from speaking to their fellow countrymen … and training and technical support for independent indigenous media through government agencies or private United States entities.”57 57. Id.

It must be noted, however, that these codifications of positive rights notwithstanding, stronger safeguards against government pressures on international broadcasting are still needed. A recent book by Kate Wright et al. carefully documents how such relatively vague and unenforceable language has helped create systemic vulnerabilities to state capture, which became more evident during the Trump administration.58 58. Kate Wright et al., Capturing News, Capturing Democracy: Trump and the Voice of America (2024).

In terms of constitutional doctrine, compared to the United States, other democratic nations, especially in Western and Northern European social democracies, feature more pronounced positive-freedom articulations. To give one striking example, Germany’s constitution offers strong positive-rights articulations. For example, in Article 5 of the Basic Law for the Federal Republic of Germany, the German constitution states:

Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship.59 59. Gesetz zur Änderung des Grundgesetzes [Law Amending Basic Law], Dec. 19, 2022, BGBl I at 2478 (Ger.), translation at https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html.

Political scientists have noted that Article 5 bears striking differences compared to the U.S. First Amendment.60 60. Donald P. Kommers & Russell A. Miller, The Constitutional Jurisprudence of the Federal Republic of Germany: Third Edition, Revised and Expanded 41 (2012). Its protections clearly are not limited to prohibiting state interference, suggesting that its provisions could be invoked against nonstate actors beyond governments. Furthermore, Article 5 is much more specific in protecting rights of speech against censorship and mentions modern types of mediated communication, such as film and broadcasting.

The German constitution also devotes a fair amount of language to defining public broadcasting, even constitutionally mandating its existence, and conferring upon it a preferred status over private and commercial broadcasters to prevent market censorship.61 61. C. Edwin Baker, Media Concentration and Democracy: Why Ownership Matters 161, 245 (2007). See also Peter Humphreys, Media and Media Policy in Germany: The Press and Broadcasting since 1945 (1994); Kenyon, supra note 8, at 243. This acknowledgement that a commercial media system is structurally ill-equipped to provide for a democratic society’s information needs is strikingly absent in American legal doctrine. Drawing from international articulations of positive rights and the government’s affirmative duty to protect them can help denaturalize the U.S. libertarian paradigm that continues to impede structural media reform and press protections.

Potential for Reorienting the First Amendment

The entire premise of press freedoms and protections under the First Amendment presupposes a functioning press system. However, U.S. constitutional law has long had a blind spot toward creating opportunities for expression. Privacy rights and freedom of expression are founded on negative liberties that shield citizens from state tyranny, but a pro-democracy agenda must also include a strong case against other sources of tyranny (such as concentrated corporate power and market censorship) while legitimating government intervention to create greater public capabilities to produce and to access information.

In other words—it bears repeating—the mere absence of state interference does not sufficiently guarantee a democratic media system. To confront threats to democracy, such as rapidly expanding news deserts (as well as digital divides and unaccountable media monopolies), we must recalibrate the First Amendment to become a more progressive force in society.

The various traditions sketched above may contribute to a foundation for advocating for a more positive First Amendment. Arguably, the most promising angle toward advancing positive press freedoms is to draw from the examples found in state constitutions. In theory and in practice, the abstention doctrine, as well as principles associated with federalism in general, grant states the power to use their own constitutions in interpreting and effectuating state laws. State constitutions often provide more expansive rights, especially around issues such as public education, environmental protection, and labor. Although states must adhere to basic federal minimum standards and guidelines, the U.S. Supreme Court lacks authority to overturn state legal decisions in most cases.62 62. Exceptions exist. For example, the Due Process Clause of the 14th Amendment affords the Supreme Court the chance to overturn laws that run afoul of the First Amendment As one legal textbook notes, courts have often interpreted state constitutions “to more broadly protect and supplement key fundamental rights and protections.”63 63. Protections in the New York State Constitution Beyond the Federal Bill of Rights 3 (Scott N. Fein & Andrew B. Ayers eds., 2017), https://www.nysenate.gov/sites/default/files/article/attachment/protections_in_the_new_york_state_constitution_beyond_the_federal_bill_of_rights.pdf. This check on the federal government is, in fact, an intended feature that allows states to exceed federal standards and to offer broader rules and protections.

This balance of legal power helps explain an increasing trend in recent years toward turning to state courts and state constitutions to protect individual rights. Certainly not all these legal movements have worked to advance positive freedoms, especially in cases involving reproductive rights. But some measures have been quite progressive, such as targeting climate change in the state of Montana, where a state court judge argued in a 2023 case that it violated the public’s state constitutional right “to a clean and healthful environment.”64 64. For an overview of such state-level developments, see Marcia Coyle, State Courts, Voters Increasingly Turning to State Constitutions to Protect Rights, Const. Daily Blog (Aug. 18, 2023), https://constitutioncenter.org/blog/state-courts-voters-increasingly-turning-to-state-constitutions-to-protect-rights

Decades ago, Justice William J. Brennan Jr. advocated for the strategy of relying on state constitutions to advance rights far exceeding protections provided for in the Bill of Rights. He argued that federalism affords us with “a double source of protection for the rights of our citizens,” and we can turn to state courts and constitutions—which should be seen as a “font of individual liberties”—when the Supreme Court is too limited in its legal interpretations.65 65. William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 491-503 (1977). For a discussion on how the terms of federalism must be renewed and worked out again every generation, see Neil D. McFeeley, The Supreme Court and the Federal System: Federalism from Warren to Burger, 8 Publius 5 (1978). Given the U.S. federal government’s caution and conservativism, it stands to reason that, in the near term, at least, we should focus on state-level initiatives based on a public right to the press that would mandate state governments to ensure the existence of local journalism in all communities. If such a protection were to take hold in several states, perhaps it would someday be embraced at the federal level.

While using a rights-based argument to advocate for guaranteed social benefits is open to reasonable criticism,66 66. See, e.g., Samuel Moyn, Not Enough: Human Rights in an Unequal World (2018). it nonetheless lends some hope. This is especially true once we look beyond the federal level, such as the recent spate of state-level laws aimed at protecting local journalism that state legislatures are considering or have already implemented in places like New Jersey, Washington, D.C., California, New York, Illinois, and Wisconsin. Under these plans, news outlets prioritizing local journalism receive various kinds of public subsidies and grants from state governments, and more such initiatives will likely take root before long. But until we scale up these plans to cover all communities across the entire nation, we still need more far-reaching plans for the long term.

The Need for Non-Reformist Media Reforms

The legal thinking discussed thus far supports an argument for more robust government provision of the press and lays important groundwork for ambitious reforms. This is a first necessary step towards creating the systemic overhaul that is needed to support the level of journalism that democracy requires. However, the profound structural crisis that democratic society is facing warrants even greater urgency. Establishing a “public right to the press” behooves us to aim higher.

With this aim in mind, we might look to “non-reformist media reforms” that seek to ultimately transform journalism and significantly lessen, or remove altogether, the commercial pressures and logics that decimate and degrade our media at a structural level, from incentivizing low-quality journalism online to hollowing out newsrooms throughout the country.67 67. For an earlier formulation of this “non-reformist media reforms” framework, see Victor Pickard, Taking Media Out of the Market, LPE Project (Jan. 31, 2024), https://lpeproject.org/blog/taking-media-out-of-the-market/. Loosely derived from the political theories of André Gorz, this framework privileges social needs over profit imperatives.68 68. Mark Engler & Paul Engler, André Gorz’s Non-Reformist Reforms Show How We Can Transform the World Today, Jacobin (July 22, 2021), https://jacobin.com/2021/07/andre-gorz-non-reformist-reforms-revolution-political-theory. For an excellent discussion of a “non-reformist reforms” framework applied to criminal justice law reform and political strategy, see Amna A. Akbar, Non-Reformist Reforms and Struggles over Life, Death, and Democracy, 132 Yale L.J. 2497 (2023). 

While this framework increasingly has been applied to social problems such as mass incarceration and other activist struggles, applying it to media can help bring into focus a long-term project aimed at “just transitions” and structural transformations. Such an approach looks beyond small-bore proposals to shore up commercial journalism—measures that at least inadvertently bolster the status quo and keep the existing institutional structures largely intact—to instead aim to radically restructure and democratize the system to include voices and viewpoints beyond traditional parameters.

Ultimately, sucha policy agenda does not aim to prop up incumbents and status quo models within the ever-eroding commercial media sector. Rather, it endeavors to entirely reorientinformation and communication infrastructures in ways that align with serving human needs. While expanding the social imaginary for what is politically possible, this project necessitates building out nonmarket alternatives by either creating entirely new infrastructures or by restructuring already-existing systems such as public broadcasting and the postal system. Arguably, working towards such utopian scenarios for journalism’s future is not only the most ethical program, but it is also the most practical course of action.

What might these reforms look like? Ultimately, our strategic vision must internalize that no long-term commercial viability exists for most kinds of journalism, especially when the market itself is a major part of the problem. The scale and scope of the current journalism crisis call for radical structural reforms that mitigate or eliminate the commercial pressures that prevent our news media from serving democratic needs. A major barrier to this kind of political project, however, is the failure to imagine structural alternatives outside the existing commercial media system.

And while the growing philanthropic commitments to supporting journalism are a positive development, one problem with relying on private capital is that funders tend to be mercurial and insufficiently committed for the long-term. We need permanent, unconditional support for the local journalism that democracy requires. Nonetheless, the burgeoning nonprofit news sector illustrates what journalists can do if liberated from commercial constraints.

For example, nonprofit news institutions such as City Bureau, ProPublica, and Outlier Media exemplify traits often associated with high-quality journalism: collaborative, investigative, and community-focused. They consistently produce reporting that exposes injustices committed against marginalized communities while drawing attention to urgent problems that society must address at a systemic level. Compared to commercial news organizations, these media institutions are often more engaged with their respective communities and devoted to progressive social missions. An infusion of philanthropic money into local news by Press Forward—more than $500 million over five years—suggests this sector will continue to expand. But much more is needed.

In the final analysis, guaranteeing media access for all members of society requires a robust public media system. Working towards this universal service mission, we can leverage already-existing public infrastructures as initial building blocks for a new public media system. These may include post offices, libraries, public access media, public broadcasting stations, universities, and other public spaces and institutions. However, given that the United States is a global outlier for how little it funds public media in general, more ambitious investments—as well as structural reforms—are still necessary.69 69. For an analysis of U.S. public media allocations in global comparison, see Timothy Neff & Victor Pickard, Funding Democracy: Public Media and Democratic Health in 33 Countries, 29 Int’l J. Press/Politics 1 (2021).

Toward this long-term objective, non-reformist media reforms have significant strategic value by directing policy interventions toward immediate goals while also seeking to expand future opportunities. In the short term, such plans can help mobilize diverse coalitions, build grassroots power from below, and open new terrains of struggle for structural reform. In the long term, these projects can shift popular commonsense and lead to lasting systemic change. Based on this calculus, any reform that chips away at existing media institutions’ anti-democratic and commercial designs can help engage news workers and local communities in rebuilding local journalism from the ground up. Such initiatives may include unionizing newsrooms, creating worker-owned cooperatives, transitioning commercial news organizations into non- or low-profit outlets, and incentivizing partnerships between public broadcasting stations and local print media. These more immediate and modest reforms can help establish the early foundations for greater transformative change in the coming decades.

The Long Road to Reform

The precise nature of today’s media-related challenges and threats to democratic governance are distinct from those in years past. This is true even compared to those that existed 15 or 20 years ago at a time when Jerome Barron’s work was enjoying renewed attention and C. Edwin Baker’s work was central to a resurgent media reform movement.70 70. Robert W. McChesney, Freedom of the Press for Whom? The Question to Be Answered in Our Critical Juncture, 35 Hofstra L. Rev. 1433 (2007). During this juncture in the early 2000s—a time of war and neoliberal hegemony—many media reformers and policymakers perceived the most severe threat to a democratic press as the increasing concentration of media ownership. More specifically, they decried the growing monopolistic power of media conglomerates as grossly limiting the diversity of the public sphere, and much of the strategic thinking was focused on how to reign in or crush these media monopolies.

Today’s market censorship, however, is more subtle and yet more profound. Although run-amok corporate power certainly continues to play an outsized detrimental role in the pathologies plaguing our information and communication infrastructures—abuses of power from social media platforms like Facebook and Twitter, predatory hedge funds like Alden Global Capital, irresponsible cable television companies like Fox News, and propagandistic broadcasting networks like Sinclair Broadcasting, to name a few of the more egregious examples—the core problem facing the health of our news media today is deeply systemic and irreducible to bad actors. Essentially, what we are facing today are not just media monopoly problems; we are dealing with capitalism problems. Competition policy is necessary but insufficient in achieving a viable democratic press. Ultimately, our goal should be to remove entire sectors of our information and communication systems from the market altogether. We need a political horizon for journalism beyond unfettered capitalism.

In many ways, the market’s hidden hand in media systems is that of a censor. As such, its pernicious effect on journalism must be minimized. This “market censorship” argument is central to making the case for government intervention. As C. Edwin Baker, James Curran, Sue Curry Jansen, and other political economists have argued for many years, the market actively and predictably filters out specific voices, distorts coverage, and underserves entire communities along socio-economic and racial lines.71 71. C. Edwin Baker, Advertising and a Democratic Press (2014); James Curran & Jean Seaton, Power Without Responsibility (8th ed. 2018); Sue Curry Jansen, Ambiguities and Imperatives of Market Censorship: The Brief History of a Critical Concept, 7 Westminster Papers in Commc’n & Culture 12 (2010). Government intervention on behalf of media that effectively ameliorates this discrimination would, in fact, be promoting a kind of negative liberty by preventing economic factors from silencing voices, discriminating against particular viewpoints, and barring entire groups from full participation in democratic society.

That the violence of the market against the press is routinely accepted as part of the natural order of things is striking. When authorities forcibly shut down newsrooms and oppress journalists—as was the case when local police raided the offices of the Marion County Record, a small weekly newspaper in Kansas, in August 2023—such actions justifiably draw intense outcry and condemnation from news organizations and from the public in general.72 72. Steven Lee Myers & Benjamin Mullin, Raid of Small Kansas Newspaper Raises Free Press Concerns, N.Y. Times (Aug. 14, 2023), https://www.nytimes.com/2023/08/13/business/media/kansas-marion-newspaper-police-raid.html. But when the commercial market does essentially the exact same thing—dismantling local media outlets and marching journalists out of newsrooms onto the street—we resign ourselves to this silencing of the press. It is unfortunate, we may tell ourselves, but the market has spoken, and there is little we can do.

Instead of accepting such fatalism, we can return agency to democratic society by treating our media’s design as something based on inherently political choices. Accordingly, we must constantly remind ourselves that our media institutions are neither natural nor inevitable but rather the product of policy decisions—decisions that should be determined by us all, not just a small group of media owners and investors (typically white, wealthy men). To engage broader constituencies, these policy debates must be further politicized, which is a central aim of any major media reform movement.

Fortunately, even if often absent from the dominant liberal policy consensus, creative and large-scale ideas for structural reform are accumulating.73 73. For an overview and synthesis of these more ambitious policy plans, see Victor Pickard, Another Media System is Possible: Ripping Open the Overton Window from Platforms to Public Broadcasting, 30 Javnost: The Public 284 (2023). For example, increasing numbers of analysts and activists argue for transitioning platforms into public utilities by devolving platform ownership and control to tech workers or users as cooperatives.74 74. See, e.g., K. Sabeel Rahman & Zephyr Teachout, From Private Bads to Public Goods: Adapting Public Utility Regulation for Informational Infrastructure, Knight First Amendment Institute (Feb. 4, 2020), https://knightcolumbia.org/content/from-private-bads-to-public-goods-adapting-public-utility-regulation-for-informational-infrastructure. For some key historical background on this concept, see William J. Novak, The Public Utility Idea and the Origins of Modern Business Regulation, in Corporations and American Democracy 139 (Naomi R. Lamoreaux & William J. Novak eds., 2017). Of course, a danger is always that such arguments can open the door for the state being able to compel certain kinds of speech. For an overview of recent discussions, see Rachel Reed, Compelling Speech, Harv. L. Today (Feb. 21, 2024), https://hls.harvard.edu/today/supreme-court-preview-netchoice-v-paxton/. While some advocates have called for breaking up platform monopolies into smaller firms or forcing them to share more advertising revenues with media producers, others have gone even further by advocating for an entire “public stack” in which each layer of our digital media system—including news media publishers, social media platforms, and even the pipes that bring internet services to our homes—is decommodified and radically democratized.75 75. See, e.g., Sanjay Jolly & Ellen P. Goodman, A “Full Stack” Approach to Public Media in the United States, German Marshall Fund (July 26, 2021), https://www.gmfus.org/news/full-stack-approach-public-media-united-states.

Towards this aim, one compelling model is the Local Journalism Initiative, which would enable people to vote on allocating funds to local news organizations of their choice, thereby guaranteeing competition between multiple newsrooms in every county.76 76. Robert McChesney & John Nichols, The Local Journalism Initiative: A Proposal to Protect and Extend Democracy, Colum. Journalism Rev. (Nov. 30, 2021), https://www.cjr.org/business_of_news/the-local-journalism-initiative.php. To create the massive resources needed to launch such a program, the journalist John Nichols has called for a “Marshall Plan.”77 77. John Nichols, Local News Has Been Destroyed. Here’s How We Can Revive It, Nation (Dec. 12, 2023), https://www.thenation.com/article/society/local-news-revival-plan/. Similarly, The Washington Post columnist Perry Bacon recommends spending $10 billion annually to support 200 new journalists in each U.S. congressional district.78 78. Perry Bacon, Jr., America Should Spend Billions to Revive Local News, Wash. Post (Oct. 17, 2022, 7:00 AM), https://www.washingtonpost.com/opinions/2022/10/17/local-news-crisis-plan-fix-perry-bacon/. For a discussion of how such subsidies could be established, see Kyle Langvardt, Structuring a Subsidy for Local Journalism, 3 J. Free Speech L. 297 (2023). I have called for establishing in every community a “Public Media Center,” a new type of anchor institution that is federally guaranteed but locally owned and governed.

Suffice it to say that bold and innovative ideas already exist. What is still lacking is the public support and political will to implement them. Regardless of the precise model on which we aim our sites and the exact strategy that carries us there, our north star should remain firmly fixed: Everyone should be provided ample access to high-quality news and information from local media outlets that look like and are overseen by the communities they serve. And all community members should be empowered to create their own media and tell their own stories. None of this is possible, however, until we confront the systemic market failure that is driving journalism to ruin.

The drafters of the First Amendment could not have anticipated such a hyper-capitalistic, corporate-dominated media system developing in the United States.79 79. The modern corporation simply did not exist at that time; collective enterprises were typically chartered to perform a specific function under the direct auspices of state legislatures. They could not have predicted systemic market failure because their political economy was so radically different from that which exists today. The 18th century press was not nearly as market-driven and advertising-dependent as it would become in the 20th century. From the framers’ vantage point, it could be safely assumed that the publishers’ interests and the public’s interests (at least among those who were seen as full-fledged members of the polity) were one and the same against an all-powerful state.

Our contemporary moment calls for an unshakeable commitment to protect both negative and positive liberties. We must guarantee individual freedoms as well as meaningful democratic participation in political life. With the ongoing collapse of local journalism—marked by massive layoffs, expanding news deserts, and rising corruption—we may be reaching an inflection point. But to guide us down the correct path, we must avoid old libertarian assumptions about the government’s inability to provide for the press.

Ultimately, we need a new paradigm founded on positive rights and driven by participatory democracy. While this paradigm shift is largely predicated on an ideological and intellectual project that moves common sense away from a market-fundamentalist, negative-freedom framework, the structural transformation that is necessary depends on social forces from below. At the same time, we also must ensure that our democratic theories and strategies for systemic change align with these social movement goals.

Given ongoing endemic market failures, any future for the kind of journalism that serves democratic needs will rise or fall with government interventions. To overcome libertarian biases, these forays into the commercial media marketplace must be justified by clearly articulated positive rights. Setting the stage for such policymaking will require much ideological, political, and discursive work. It is a long-term struggle, but one from which we cannot shy away.

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© 2024, Victor Pickard.