Schedule

• Friday May 3

  Civic Hall

  124 East 14th Street, New York, NY 10003

  9:15AM – 9:30AM EDT

  Welcome

  • Jameel Jaffer, Knight Institute
  • RonNell Andersen Jones, University of Utah and Knight Institute

  9:30AM – 10:45AM EDT

  Panel 1: Democracy and the Press Function 

  This panel explores the relationship between newsgathering and the stability of American democracy. Traditional news outlets are disappearing, leaving an information vacuum that other communicators are rushing to fill. Political threats against performers of the press function are on the rise. At this critical moment, which roles that have traditionally been played by legacy media are most crucial to self-government? What press functions does a democracy need in order to sustain itself, and why do these press functions matter? Given deep public divisions, how can we foster the newsgathering that is vital to public discourse, and what is the proper role of constitutionalism, law, and policy in this space?

  Panelists

  • Erwin Chemerinsky, UC Berkeley School of Law
  • Lyrissa Lidsky, University of Florida Levin College of Law
  • Robert C. Post, Yale Law School

  Discussant

  • Michael Schudson, Columbia Journalism School

  Moderator

  • RonNell Andersen Jones, University of Utah and Knight Institute

  10:45AM – 11:00AM EDT

  Break

  11:00AM – 12:15PM EDT

  Panel 2: Identifying Performers of the Press Function

  
  This panel examines how we can best identify performers of the press function for protection in a changing media and political landscape. What benefits and what complexities result if law and constitutionalism give journalists special privileges? How can we guarantee access for some parties to perform government oversight on behalf of others when access is limited? If press exceptionalism line-drawing is needed, what are the best tools for distinguishing performers of the press function from performers of other functions? How can we shape this doctrine in ways that reflect the voices of groups that have historically been marginalized? How do we build press-protective doctrine that is fair, helpful, and lasting, even as media models change?

  Panelists

  • Hannah Bloch-Wehba, Texas A&M University School of Law
  • Meredith D. Clark, Northeastern University
  • Richard L. Hasen, UCLA School of Law

  Discussant

  • Seth Stern, Freedom of the Press Foundation

  Moderator

  • Sonja R. West, University of Georgia and Knight Institute

  View Paper Abstracts

  Policing Press Freedom

  Hannah Bloch-Wehba

  In recent years, scholars and advocates have called for particular statutory and constitutional protections for the press to ensure that it continues to play its traditional democratic role. The conventional wisdom holds that affording special legal protections to journalists, beyond those enjoyed by the public, effectively limits law enforcement’s power to interfere with the press function. This article takes aim at this assumption on both descriptive and analytical grounds. First, it describes how law enforcement often evades, violates, or simply ignores existing protections, raising questions about their effectiveness. Supporters of special protections from law enforcement might argue that the underinclusiveness of existing rules simply illustrates the need to update and expand these protections. I argue, however, that expanding procedural safeguards is unlikely to adequately protect the press function. Indeed, heightened press-specific rules might actually encourage law enforcement to use other substantive approaches to criminalize journalism and reporting and thus evade procedural protections. As William Stuntz observed in the context of constitutional criminal procedure, the creation of especially protective rules can have the “perverse” consequence of creating incentives to “generate bad substantive rules” and thereby evade procedural restrictions. Amid broadening efforts to criminalize protest, trespass, and newsgathering, the substantive criminal law increasingly offers many possible avenues for law enforcement to crack down on critical reporting, threatening the checking function. This dynamic suggests that the press’s longstanding strategy of seeking procedural protections against law enforcement is misguided and ineffective. Instead, to ensure its autonomy and independence in the long run, the press should be a more active participant in seeking to limit law enforcement power and authority.

  
  Intersectional Approaches to Teaching the First Amendment

  Meredith D. Clark

  Taken together, the first three standards listed by the Accrediting Council in Education in Journalism and Mass Communication signal an emphasis on the First Amendment and the importance of diversity and cultural contexts in journalism education. Yet the revival of debates over “journalistic objectivity” that have taken shape around issues of Black protest, editorial witnessing, and journalistic authority put these principles in conflict with one another, a misstep attributable to the way the First Amendment and the responsibility of the journalist are taught. In reflecting on the assumption of equal access to the freedoms enumerated in the First Amendment—spanning the time between its ratification in 1791 and the enfranchisement of Black Americans via the ratification of the 13th, 14th, and 15th amendments in 1865, 1868, and 1870, respectively—that characterize most studies of the press as a tool of democracy, this project challenges the colorblind interpretation of the First Amendment as a means of grounding and legitimizing the role of the advocacy press. This essay applies the Du Boisian theory of double consciousness to argue that journalism education in the United States falls short of its mission when it fails to consider questions of race in applications of the First Amendment. I position the classroom as a space for radical possibility to reconsider the function of the press as a commercial project developed through racial capitalism. I argue that the First Amendment, including the press clause, must be interrogated at multiple levels in order to escape the trappings of the democratic swindle and fulfill the elusive promise of First Amendment freedoms to be enjoyed by all. 

   

  From Bloggers in Pajamas to The Gateway Pundit: How Government Entities Do and Should Identify Professional Journalists for Access and Protection

  Richard L. Hasen

  This paper examines how government entities determine who is a journalist to allocate resources under conditions of scarcity and to assure that the press can conduct their functions without undue government regulation and interference. Using a new dataset of 172 laws, rules, and procedures that different government entities have used to define the press, it describes the most common tests government entities use for identifying journalists and compares them to each other. Most of the definitions appear aimed at identifying the class of professionals who regularly gather, report, and disseminate news. The paper then describes the relatively rare, reported litigation around these journalist-defining rules, teasing out the potential dangers of relying on particular definitions of journalists. Much of the litigation easily distinguishes between professional and non-professional journalists, and a few have dealt with the exclusion of journalists for permissible reasons, such as disruptive behavior. But not every issue is easy. Using the example of litigation over Maricopa County, Arizona’s decision to exclude a faux journalist for The Gateway Pundit from an area where ballots were being tabulated following the 2022 elections, it focuses particularly on the line between unconstitutional viewpoint discrimination and permissible extension of the press exemption only to those who engage in legitimate professional journalism. The paper then makes four normative recommendations about the tests government entities should use to define journalists. First, government entities should have explicit and meaningful standards for press exceptionalism. Second, most press exceptionalism should be limited to professional journalists who regularly produce news stories or commentary. Third, press exceptionalism should not turn the type of technology used to communicate. Fourth, government entities should continue to have the power to grant press exceptionalism to “bona fide correspondents of repute in their profession” so long as they do not engage in viewpoint discrimination.

  Hide Paper Abstracts

  12:15PM – 1:15PM EDT

  Lunch & Keynote Remarks: Saving the News—A Conversation with Martha Minow

  Lunch will be provided.

  1:15PM – 2:30PM EDT

  Panel 3: Sustaining the Press Function

  
  This panel imagines wider possibilities for law and policy to more affirmatively sustain the democracy-enhancing press functions. Are government interventions that actively promote journalism practically workable and politically possible? Are they constitutionally sound? What are the theoretical and doctrinal barriers to press subsidies, more vibrant public media, or direct government funding of news and communication infrastructures? Can government sustain the press function without distorting the content of news? What are the most important possibilities for guaranteeing meaningful access to news and information for everyone?

  Panelist

  • Heidi Kitrosser, Northwestern University Pritzker School of Law
  • Wesley Lowery, American University
  • Victor Pickard, University of Pennsylvania

  Discussant

  • Courtney C. Radsch, Center for Journalism and Liberty, Open Markets Institute

  Moderator

  • Katie Fallow, Knight Institute

  View Paper Abstracts

  Anti-Distortion and State-Subsidized Journalism

  Heidi Kitrosser

  Press subsidies and “public stations” such as NPR and PBS already play important roles in informing the American public, and public funding of the news is more crucial now than ever. Given these facts, it is important to explore the First Amendment limits that do or should apply to content-based funding conditions on news reporting. Elsewhere, I have argued that an anti-distortion principle can be discerned in parts of the First Amendment caselaw involving government subsidies and forums. This principle constrains the government from restricting speech in a manner that would distort the nature of a communicative good that it purports to provide. The principle, however, is underdeveloped. Judicial precedent says little about why anti-distortion matters from a free speech perspective, and it also fails to provide much guidance as to how to determine the nature of a forum or institution. These shortcomings make the anti-distortion principle vulnerable to disuse and especially to being overtaken by an expanding government speech doctrine. I seek to make headway toward filling these gaps in this essay, focusing on the example of state-subsidized journalism.

  A Positive Rights Paradigm for Guaranteeing a Universaal Press System

  Victor Pickard

  It is a matter of elementary democratic theory that self-governance requires a free—and, by implication, a functional—press. However, today the US press system is being actively dismantled by 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 media system cannot provide for a multiracial democratic society’s basic information and communication needs. If democracy requires a press system regardless of its profitability, we must develop a rationale for why government must guarantee a baseline level of news and information for all members of society, not just the privileged few who live in affluent neighborhoods. With this objective in mind, this essay aims to articulate a positive-rights paradigm that marshals contemporary, historical, and international policy and legal frameworks that assume government should have an affirmative duty to guarantee meaningful access to news and information for everyone. Drawing from democratic and economic theories, the essay will build on a long lineage of legal arguments for why the First Amendment does not forbid government interventions that promote journalism. Ultimately, such a policy agenda does not aim to shore up existing models, but rather endeavors to transform information and communication infrastructures to better serve human needs. This long-term project will require a program of “non-reformist media reforms,” as well as expanding upon the social imaginary for what is politically possible. It will necessitate building 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 ambitious visions for journalism’s future is not only the most ethical, but also the most practical course of action.

  Hide Paper Abstracts

  2:30PM – 2:45PM EDT

  Break

  2:45PM – 4:00PM EDT

  Panel 4: New Frontiers for Protecting the Press Function

  
  This panel considers new lenses through which we might view the goal of protecting the press function. As generative AI and other technologies change the ways news can be produced and disseminated, and the harms it can impose, what lessons can be drawn from the past to protect the press function in the future? If traditional constitutional and statutory protections for performers of the press function fall short, what other avenues might fill the gaps? How can law and policy work alongside other tools to encourage and sustain valuable newsgathering?

  Panelists

  • Mike Ananny, University of Southern California
  • Christina Koningisor, UC Law San Francisco
  • Jacob Noti-Victor, Cardozo School of Law

  Discussant

  • Nora Benavidez, Free Press

  Moderator

  • Katy Glenn Bass, Knight Institute

  View Paper Abstracts

  The Freedom to Learn from Mistakes

  Mike Ananny

  How is the capacity to learn from mistakes a vital but poorly understood part of contemporary press freedom? If an autonomous press has the power to continually create and recreate the institutional arrangements that it thinks best enable public life, then this press must be able to manage its changes with knowledge and intention. It must be able to see, understand, revise, reject, and invent the relationships and systems that influence its reporting, writing, editorial judgments, publishing, and public missions. It must be able to know how and why its arrangements succeed or fail.

  Today, though, many of press’s successes and failures intertwine with sociotechnical systems—platforms, algorithms, datasets, machine learning—that originate outside of newsrooms, have little appreciation or care for editorial nuance, and are simply hard to understand.  How can a press be free if it lacks the full capacity to know these systems and, specifically, to know why these systems fail and when their failures matter to the press’s public function?

  This paper aims to answer this question in three parts: first, tracing scholarship on how the press has historically defined and learned from its mistakes; second, analyzing cases when journalistic uses of Generative Artificial Intelligence failed; and third, sketching a new press freedom framework that shows publishers and technologists alike the power of equipping journalists with the capacity to learn from sociotechnical mistakes.

  The Other Press Clauses

  Christina Koningisor

  The Supreme Court has consistently declined to interpret the First Amendment to extend exclusive protections for the press. Across areas like newsgathering, rights of access, and the shielding of confidential sources, the Court has rejected the press’s claims to constitutional protection. Yet many states have pursued a different approach. Each state constitution contains independent press and speech provisions. These provisions diverge from the First Amendment in their texts, drafting processes, and interpretive histories in ways that can be rights-expanding for the press. This essay argues that these provisions have been underutilized by the press. These state constitutional protections hold promise as a powerful source of independent protection for journalists. They can be used to fill in gaps left by the Supreme Court’s often flimsy and scattershot First Amendment approach. They can be more easily amended to respond to new and growing threats to the press. And they can operate as a safety net to catch the press if the Roberts Court decides to claw back critical First Amendment press protections. Moreover, the lessons of the state constitutional experience can be used to support expanded press protections under the First Amendment.  

  Innovation Policy and the Press

  Christina Koningisor and Jacob Noti-Victor

  Local news is in crisis. Too few subscribers are willing to pay the costs required to create sustained and high-quality local news products, and the advertisers that previously subsidized local news have fled to new sites, especially social media platforms. Press organizations and policymakers have begun experimenting with possible fixes. Media institutions have looked to new private funding models, especially nonprofit institutions supported by philanthropic foundations. And state legislators have begun testing different public financing vehicles for local media. Yet these efforts represent only a small set of possible solutions to the crisis in local news. And they have proven insufficient to save news organizations from financial devastation. This essay argues that the local news crisis should be understood as an innovation failure, one that calls for solutions from areas of the law that have long grappled with similar problems. In markets like pharmaceuticals and technology, policymakers often employ “innovation policy pluralism,” or combinations of intellectual property protections with non-IP tools such as prizes, grants, and tax credits. Such combinations harness both free-market forces and government regulation to foster socially valuable services in productive ways. The essay surveys these different innovation policy levers and maps them onto both existing and proposed local press interventions. 

  Hide Paper Abstracts

  4:00PM – 4:15PM EDT

  Closing Remarks

  • RonNell Andersen Jones, University of Utah and Knight Institute
  • Sonja R. West, University of Georgia and Knight Institute