The First Amendment provides that “Congress shall make no law … abridging the freedom of speech, or of the press.” The last three words pose something of a puzzle.

If the “freedom of speech” clause endows each and every speaker with the rights necessary to protect expression, what additional rights can or should be claimed by the press? It is an essential canon of legal interpretation that no word in a legal text should be regarded as mere surplusage.Footnote ¹ But then, what do the words “or of the press” add to freedom of speech?

If the press can claim rights different from those guaranteed to every speaker, it must be because we understand the Press Clause to serve constitutional values that are different from those served by the “freedom of speech” clause and because these values require distinct forms of rights for their protection.

In this chapter, I shall explore four distinct constitutional values that at various times have been claimed to be uniquely served by the press: (1) the value of public discourse, (2) the Meiklejohnian value of distributing information, (3) the checking value, and (4) the value of the public sphere. Each of these values will yield a different constitutional definition of the “press,” and each might imply a different array of rights that ought to accrue to the press. Although these values are distinct, the press may simultaneously serve one or more of them.

2.1 The Value of Public Discourse

Our First Amendment jurisprudence of freedom of speech does not treat all expression equally. The First Amendment primarily protects speech that we deem constitutionally relevant to the formation of public opinion.Footnote ² The object of ordinary First Amendment doctrine is to ensure, as the Court instructed us in West Virginia State Board of Education v. Barnette, that in the United States, “authority … is to be controlled by public opinion, not public opinion by authority.”Footnote ³ Because democracy is a form of “government by public opinion,”Footnote ⁴ our First Amendment doctrine is designed to protect “the market of public opinion.”Footnote ⁵ Following the Court’s usage, I shall use the term “public discourse” to refer to the set of communications considered integral to the formation of public opinion.Footnote ⁶

Public discourse encompasses all the various forms of expression necessary to produce “that public opinion which is the final source of government in a democratic state.”Footnote ⁷ This modern concept of public opinion emerged in the eighteenth century with the creation of what we now call the “public sphere.”Footnote ⁸ The public sphere facilitated the emergence of a “public,”Footnote ⁹ whose “public opinion” is the lifeblood of our democracy. The appearance of the public was made possible by “the circulation of texts among strangers who become, by virtue of their reflexively circulating discourse, a social entity.”Footnote ¹⁰ In the words of Michael Schudson, the public is “the fiction that brings self-government to life.”Footnote ¹¹

The public sphere was produced by the invention of printing, which enabled the widespread circulation of texts to strangers. The public sphere became entrenched in the eighteenth century when the circulation of newspapers became commonplace. “The true advent … of the public”Footnote ¹² occurred when newspapers began to offer a continual stream of information and opinion that united masses of people into a public that corresponded in scale to the newly entrenched nation-state.Footnote ¹³

At its outset, the press was “the public sphere’s preeminent institution.”Footnote ¹⁴ The press provided the steady stream of communications that created and maintained the public sphere. That is why Thomas Jefferson could observe in 1787 that “the basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.”Footnote ¹⁵

At the present time, however, there are many other “media for the communication of ideas”Footnote ¹⁶ – like film, radio, television, art, or theater – which also serve this same function. They all underwrite the health of the public sphere, and they all thereby facilitate robust processes of public opinion formation. Because all such media allow multitudes of strangers to join together in common conversation, they are in First Amendment jurisprudence all presumptively categorized as public discourse.Footnote ¹⁷ As the first and most prominent medium for the communication of ideas, the legacy newspapers and magazines that we now colloquially call the “press” also receive this special constitutional treatment.

The categorization of the press as public discourse is, of course, only a default definition. Newspapers can carry commercial speech;Footnote ¹⁸ magazines can be obscene.Footnote ¹⁹ But unless special conditions obtain, speech carried by the press, like speech carried by any of the other media for the communication of ideas, will be classified as public discourse and will therefore receive full First Amendment protection. Speech within a newspaper is presumptively “newsworthy.”Footnote ²⁰ This is not the case with many other forms of speech. It is not the case, for example, with commercial speech or expression about matters of private concern privately communicated.Footnote ²¹

The press thus enjoys the special status of being classified as presumptively public discourse. But the press shares this special status with all media for the communication of ideas. In terms of the value of participating in public discourse, the press can claim only the right to be treated equally with every other participant in public discourse. The press earns this right by continuously seeking to reach out and communicate with strangers.Footnote ²²

2.2 The Meiklejohnian Value of Distributing Information

In the last third of the twentieth century, the Supreme Court seemed repeatedly to hold that the press was not entitled to claim special First Amendment rights that were not available to all other participants in public discourse.Footnote ²³ One cause of this difficulty was that the press repeatedly chose to justify claims for special constitutional treatment in terms of a constitutional value that members of the Court did not find convincing.

For many years, press lawyers argued that the unique constitutional value served by the press was the distribution of information necessary for self-government. In Branzburg v. Hayes,Footnote ²⁴ for example, the press argued that it should receive a special privilege shielding the identity of confidential sources from grand jury subpoenas. The press contended that if a reporter is “forced to reveal these confidences to a grand jury, the source so identified and other confidential sources of other reporters will be measurably deterred from furnishing publishable information, all to the detriment of the free flow of information protected by the First Amendment.”Footnote ²⁵

This argument was rooted in Alexander Meiklejohn’s account of the First Amendment. Meiklejohn famously asserted that the reason why speech should receive constitutional protection is to ensure that citizens receive the information necessary for them to perform their civic obligations, like voting on referenda and candidates. In case after case, the press argued that it had a special responsibility to distribute information to citizens, who would not otherwise be informed about public matters requiring decision.

The Court explicitly rejected this argument. The Court did not deny that the First Amendment protected the circulation of information to citizens, but it did deny that any such need justified awarding distinct constitutional privileges to the press:

The press’s Meiklejohnian arguments, in other words, were met with the objection that all speakers circulate information to the public. Indeed, a Meiklejohnian conception of the First Amendment holds that the very meaning of freedom of speech is nothing other than the freedom to convey information.Footnote ²⁷ The Court did not answer the press’s claim that it was uniquely responsible for the effective circulation of information, but in truth it is difficult to quantify the difference in how much information the press distributes as distinct from authors of bestselling nonfiction books or producers of popular documentary movies.

The press’s efforts to invoke a Meiklejohnian account of the First Amendment to justify special constitutional treatment were met with decisive judicial skepticism. The Court believed that the press was not all that different from other speakers when it came to the Meiklejohnian distribution of information.Footnote ²⁸ This premise led the Burger Court to frequently demote the press to being “simply members of the public.”Footnote ²⁹

2.3 The Checking Value

The press has appeared differently to the Court, however, in the context of a distinct constitutional value. In Minneapolis Star and Tribune Co. v. Minnesota Commissioner of Revenue,Footnote ³⁰ the Court considered a Minnesota statute imposing a special tax on the cost of paper and ink products used in the production of newspapers. The Court was offended that the tax “singled out the press for special treatment.”Footnote ³¹ Such a tax, the Court concluded “cannot stand unless the burden is necessary to achieve an overriding governmental interest.”Footnote ³² The Court’s reasoning is instructive:

The passage contains an entirely different constitutional image of the press than that contained in Branzburg. The Court invokes a “basic assumption of our political system that the press will often serve as an important restraint on government.”Footnote ³⁴ If in Branzburg, the press was simply one means among many to distribute information to voters, in Minneapolis Star and Tribune the press was a unique institution operating to restrain government misconduct through “critical comment.”Footnote ³⁵

This image of the press had been fully elaborated six years before in Vincent Blasi’s pathbreaking article, “The Checking Value in First Amendment Theory.”Footnote ³⁶ Blasi argued that the press should be conceived as a specific kind of institution whose purpose was to guard “against breaches of trust by public officials.”Footnote ³⁷ Blasi built on the insight of Alexander Bickel that “the press was a constitutionally recognized countervailing power to the official branches of government.”Footnote ³⁸

On this account, constitutional red flags would not be raised if Minnesota were to impose a special tax on films. Although movies are a medium for the communication of ideas, and although filmmakers are entitled to receive all the First Amendment rights accruing to participants in public discourse,Footnote ³⁹ cinema is not an institution characterized by an adversarial relationship with government. It is not a “basic assumption of our political system” that films will “serve as an important restraint on government.”

Following Blasi, I shall designate this constitutional conception of the press as the “checking value.” From this perspective, the press should enjoy a unique constitutional role. If the press had appealed to the checking value in Branzburg instead of pushing a Meiklejohnian position, it is possible that the Court might have reached a different conclusion. We cannot know. All we can say with certainty is that in a context like Minneapolis Star and Tribune, where the press sought to prohibit legislation singling out the press for disadvantageous treatment, as distinct from a context like Branzburg, in which the press sought to claim special First Amendment privileges unavailable to other participants in public discourse, the Court was receptive to the checking value and prepared to give it constitutional effect.

The checking value imagines the press as an institution continually engaged with the government. The press is figured as an institution that is constantly seeking to hold the state accountable. It is certainly no accident that this image of the press rose to prominence during the time of WatergateFootnote ⁴⁰ and the furor over the Pentagon Papers.Footnote ⁴¹ But if the checking value can justify awarding the press constitutional rights unavailable to other speakers in public discourse, it is far from obvious exactly how to define the “press” so as to serve this value.

Obviously, legacy press like The New York Times or The Washington Post would qualify as the press under the checking value. So also would proto-legacy institutions like ProPublica. But what about commentators like Tucker Carlson or Mark Levin? What about internet sites like Gawker or BuzzFeed? What about individual unaffiliated bloggers? Exactly what kind of speakers in the contemporary world are fit to participate in what Alexander Bickel called “the adversary game between press and government”?Footnote ⁴²

Should candidates for this game qualify merely because they hold an antagonistic attitude toward government? Or should they qualify only if they also abide by the professional standards that, after the progressive era, we have come to expect of the legacy press? For purposes of the checking value, must the press be institutionalized, so that it contains the full paraphernalia of editors and reporters and fact-checkers, or can the press consist merely of individuals bursting with antagonism toward government action? Must the press be an institution that also reports facts, or can it consist of the continuous broadcast of opinion, however shrill?

Minneapolis Star and Tribune is clear that those who constitutionally qualify for the “adversary game” ought to be accorded constitutional privileges that are unavailable to other participants in public discourse. These privileges form the rules of the “adversary game” that is a fact of our national life. These rules restrain government dealings with the press. Exemplary are regulations promulgated by the Attorney General to specify the precise, limited set of conditions under which the Department of Justice can issue subpoenas to “members of the news media.”Footnote ⁴³

2.4 The Value of the Public Sphere

If the checking value identifies members of the press by virtue of their potentially antagonistic relationship to the state, there is yet a fourth constitutional conception of the press, one that is compatible with almost the complete absence of a unique voice attributable to the press. This conception of the press flows from the public sphere itself. It can most clearly be seen in the decision of the Court of Justice of the European Union (CJEU) in Google Spain SL v. Agencia Española de Protección de Datos.Footnote ⁴⁴

In Google Spain, the CJEU was required to interpret Directive 95/46/EC,Footnote ⁴⁵ which protected data privacy throughout the EU. The Directive, which was at the time “probably the most influential data privacy text in the world,”Footnote ⁴⁶ put stringent conditions on the processing of private data, creating what has been called the “right to be forgotten.”Footnote ⁴⁷

In Google Spain, a Spanish lawyer argued that Google violated his right to be forgotten when its search engine produced references to an old newspaper article describing official attachment proceedings against him. Because the Directive exempted the processing of private data “solely for journalistic” use,Footnote ⁴⁸ a major question in the case was whether the Google search engine could claim this journalistic exception. The CJEU denied that the exception applied to the Google search engine, holding that Google could set against the Spanish lawyer’s right to data privacy only “the economic interest” of the company.Footnote ⁴⁹

The traditional public sphere was created in the seventeenth and eighteenth centuries when printed newspapers circulated among strangers and united them into a “public” capable of holding Europe’s newly created centralized states to political account. These newspapers were private commercial enterprises with their own economic interests. Yet these enterprises created the “public” that made possible what we now call democracy. The “press” was able to perform this feat not merely because its voice was potentially antagonistic to states but also because it distributed common information to strangers who were thereby enabled to come together to form a public.

The twenty-first century has witnessed an immense transformation, from analog to digital information.Footnote ⁵⁰ Digital information circulates on the internet with virtually zero marginal cost. This has facilitated the emergence of digital institutions like the Google search engine, which circulates far more information than any previous entity. Whereas in the eighteenth century, newspapers used their unique voice to attract readers and so expose them to common information, the Google search engine provides common information as requested by its users. It has no need to develop a distinctive voice to invite readers to use its services and partake in a common pool of “public” information.

The Google search engine is thus able to circulate common information to vast numbers of people and so to maintain a public, without any audible voice at all. Without in any way fulfilling the checking value or purporting to speak in its own voice about public affairs, it nevertheless performs the same sociological, public-sustaining function as does the legacy press. It is a purely public-maintaining institution.

This is, in my view, a central constitutional function of the press, one that deserves the kind of protection that the Directive in fact awarded to journalism. It is a function that is threatened by the current trend toward the protection of data privacy.Footnote ⁵¹ If the press could not publish common facts, we could not sustain the public conversation necessary for democratic self-government. That is why data privacy regulations typically exempt the press. Yet, the CJEU was not able to recognize the Google search engine as an enterprise that served this journalistic function, most likely because the engine lacked the voice we have always associated with the legacy press.

If the CJEU had instead focused on the constitutional value of sustaining the public sphere, it might have reached a different conclusion. The Google search engine performs the same public-maintaining function as did the traditional, analog press. The search engine sustains a digital public. This is a constitutional value that deserves its own distinct form of constitutional protection.

2.5 Conclusion

We have thus identified four distinct constitutional functions performed by the “press”: The press participates in public discourse, it distributes information, it is a potentially antagonistic counterweight to government, and it maintains the public sphere. Each of these different functions leads to a different specification of what institutions should be included in the constitutional definition of the press. Each leads to a different form of constitutional protection. Although these functions are conceptually distinct, they need not be incompatible. A particular institution of “the press” can simultaneously serve one or more of them.

As a speaker, the press is presumptively a participant in public discourse, entitled to all the same First Amendment protections as other speakers in public discourse. As a distributor of information, however, the Court has repeatedly held that the press is not entitled to any privilege not held by all other distributors of information. Yet the Court is prepared to recognize the press as distinctive insofar as it is potentially locked into an “adversary game” with the state. Our history and tradition have not cast other media in this unique role. If we take this constitutional value seriously, as has the Court in a few decisions, the press should be entitled to special constitutional privileges. The government should be prevented from unduly oppressing the press or from freely appropriating its resources.

Finally, there have emerged during the twenty-first century wholly new kinds of institutions that are engaged in the pure distribution of information without any pretension to voice. Exemplary is the Google search engine. These institutions, made possible by the digitization of information, produce publics in a manner analogous to the newspapers of the eighteenth century. They continuously endow strangers with common sources of information that are of interest to them.

These new digital institutions can certainly make no claim to the special privileges implied by the checking value. It is not even clear whether they should be entitled to rights that protect speakers who contribute to public discourse. But with regard to data privacy regulations like the Directive that seek specifically to block the transmission of data to strangers,Footnote ⁵² they ought to be able to claim the same protections as we are willing to give to the press generally.

“The freedom of speech,” wrote Owen Fiss, “is a social state of affairs.”Footnote ¹ So too is the freedom of the press. The familiar insight that a healthy democratic political culture requires a vibrant, independent press establishes a great deal while leaving a great deal more in question. What should the press do? Who is part of it? How can and should legal doctrines enable its work? This chapter, which draws on my two decades of scholarship about the press, contends that all those questions are fundamentally political. By “political,” I refer not to electoral politics but rather to foundational, constitutional politics: contested questions about normatively desirable forms of governance and means of managing societal conflicts. More than twenty years ago, Ed Baker explained that, in a democratic society, the normatively appealing shape of the news media necessarily varies with the society’s preferred model of democracy.Footnote ² How we conceive the democratic press depends on what kind of political community we want to form and how that community needs the press to function.

Framing press freedom in political terms may seem fraught at a moment when journalists face public hostility, official repression, and even violence.Footnote ³ Much conventional rhetoric calls for the press to stand above politics, or at least beside politics. When journalists in the last century conceived of the press as “the fourth branch of government,” they posited a role for the news media that impelled dispassionate, nonpartisan chronicling.Footnote ⁴ The ideal of press neutrality forms a rhetorically stable platform from which to advocate press freedom. The reality, however, is more complicated. The press performs functions that require politically contingent choices about institutional design and journalistic practice. Persistent corporate domination of our mass media surely embodies a political condition, though not a political choice by the people.Footnote ⁵ Reckoning with political questions about the free press is a necessary step in preserving and strengthening it.

This chapter discusses two related political tensions with major implications for the shape of our democratic press: the tension between objectivity and subjectivity and the tension between institutionalism and populism. My book Managed Speech: The Roberts Court’s First Amendment advocates a vision of free speech and public discourse that I call dynamic diversity. The basic notion is that free speech law should promote conditions of public discourse that maximize both the range of participants and the variety of available ideas.Footnote ⁶ In line with that notion, the book sharply criticizes the Supreme Court’s abandonment of press freedom.Footnote ⁷ This chapter’s observations about political tensions and the democratic press reflect the value of dynamic diversity.

3.1 Objectivity and Subjectivity

The most fundamental political conundrum of a twenty-first-century democratic press tracks the familiar debate between Enlightenment rationalism and postmodernist critique. To vastly oversimplify that debate: Rationalism, epitomized by the scientific method, relies on our capacity to discern objective, verifiable truth through experiment and analysis. Objective truth may be complex, but in substantial measure, we can discover it.Footnote ⁸ Postmodernist thought criticizes scientific rationalism for presenting a false promise of objective truth. Postmodernism posits a radical subjectivity, in which anyone’s understanding of truth depends on their distinctive, contingent perspective and position. Truth as such does not exist; rather, groups and cultures construct subjective truths.Footnote ⁹

Anxiety about the rationalist-postmodernist tension permeates our elite political discourse, mainly because contempt for rationalism has found a strong foothold in our popular political discourse. Kellyanne Conway infamously characterized one of the Trump administration’s early lies as a valid account of “alternative facts.”Footnote ¹⁰ Donald Trump himself routinely dismisses criticisms of his presidency as “fake news,” transmuting a warning about misinformation into a cudgel of misinformation.Footnote ¹¹ Anti-vaccine misinformation has gained a mass following and produced a horrifying body count.Footnote ¹² Denial of climate science literally threatens the life of our planet.Footnote ¹³ These indulgences damage our lives and corrode our political culture. Without shared grounding, including factual stipulations, constructive political discourse becomes impossible.Footnote ¹⁴ In these pathological conditions, insistence on the certainty of objective facts, what we can call truth anxiety, makes great psychological and political sense.

A core function of news organizations for much of the twentieth century was to provide a baseline of truth that enabled constructive political discourse. Objectivity became a defining norm of journalism. Walter Lippmann, reacting against partisan journalism in the early twentieth century, argued that journalists should adapt the scientific method to newsgathering and analysis.Footnote ¹⁵ The American Society of Newspaper Editors’ Statement of Principles declared: “News reports should be free from opinion or bias of any kind.”Footnote ¹⁶ That embrace of objectivity corresponded with the nationalization of news. In the latter half of the twentieth century, the three national television networks came to dominate news reporting, with their local affiliates, radio stations, and a diminishing number of newspapers playing supporting roles. These news outlets, as I have discussed elsewhere, functioned as dominant intermediaries between the world of information and the mass public.Footnote ¹⁷ Funded by advertising and sustained by appealing to broad audiences, they had every incentive to operate within a widespread consensus about essential facts and truths.

That mediated consensus, however, yielded a stifling homogeneity, bogging down public political debate in bland majoritarian norms. Government responded ambiguously. While much government policy and expression reinforced the news media’s narrow consensus, some regulation encouraged greater dynamism in public discourse. Congress imposed structural regulations that dispersed the ownership of media outlets.Footnote ¹⁸ It also empowered the Federal Communications Commission to mandate, through a cluster of regulations called the Fairness Doctrine, that radio and television broadcasters cover issues of public concern and present opposing viewpoints about those issues. I’m one of few legal academics in recent memory to write anything favorable about the Fairness Doctrine.Footnote ¹⁹ On the negative side of the ledger, the doctrine was elitist in distinguishing established print media from upstart broadcasters, dangerous in imposing government content policies, and facile in presuming that political debates have only two sides. On the positive side, the doctrine pushed back against news media homogeneity by insisting that broadcast licensees present opposing viewpoints. The best defense of the Fairness Doctrine is that exposing audiences to direct conflicts between contrary views on public issues can nourish the critical faculties that enable democratic self-governance.Footnote ²⁰ Today, we find ourselves in a cul-de-sac of public discourse where people’s and groups’ customization of truth threatens collective self-governance.Footnote ²¹ The Fairness Doctrine modeled, however imperfectly, a way out of that trap through critical contestation rather than imposed consensus.

Mediated consensus becomes hazardous when the media propagates truths that turn out to be lies. Consider two spasms of government violence, one at the old media’s peak and the other on the slope of its decline: the 1970 Kent State massacre and the 2003 invasion of Iraq. In earlier work, I have situated these two events as catastrophic failures of both First Amendment law and the institutional press.Footnote ²² Over the past half century, our country has committed few greater crimes and suffered few deeper shames than Kent State and the Iraq War. These are exactly the sorts of government abuses that a democratic press should probe, hector, and shout to prevent. But the news media, despite its increasing criticisms by 1970 of the illegal war that ignited the Kent State protests, parroted government lies that the protesters had provoked National Guard troops to slaughter four students and maim nine more.Footnote ²³ Just over thirty years later, our leading news organizations endorsed the Bush administration’s lies about Iraqi weapons of mass destruction,Footnote ²⁴ smoothing the path to another indefensible war that caused 300,000 needless deaths.Footnote ²⁵

Truth anxiety fogs our critical understanding of free speech and the free press. We sometimes forget that the foundational text of our First Amendment canon, Justice Holmes’ famous Abrams concurrence, extolled free speech for pursuing truth, not for presuming it.Footnote ²⁶ Present journalistic ethical codes admirably show heightened nuance, favoring guidelines for journalistic practice over aspirations to perfect neutrality or objectivity.Footnote ²⁷ Thinking about what kind of democracy and what kind of press we want requires us to confront the postmodern challenge to rationalism. We need to consider, with clear eyes, what truths our insights justify asserting and what avenues of inquiry our uncertainties compel holding open. For my own part, I have no doubt that vaccines save lives, that our planet is overheating, and that debating those truths wastes the time we should instead spend addressing them. I have great doubt, though, about the integrity of our electoral system, the beneficence of our military and intelligence services, and the justice of our economic order. The last century’s dominant news media did or would have treated all those issues as essentially settled. Looking forward, we must engage critically with the dilemma of which objective truths our democratic press should propound and which subjective positions it should interrogate.

3.2 Institutionalism and Populism

A second political tension with high salience for the democratic press concerns not what news reporting says but who says it. Beginning after the Civil War and accelerating in the twentieth century, news organizations in the United States developed strong institutional structures. Those structures enabled the professionalization of the press. News reporting became much more than just a job to perform expediently. It became a vocation that required rigorous training, often through journalism schools. The institutional news media inculcated professional norms alongside skills of the trade. News organizations built elaborate hierarchies, flowing from publishers to layers of editors and legions of reporters, to maximize effectiveness and project credibility. Professionalization encouraged competition among news outlets to achieve publicly valuable outcomes.

The news media’s institutionalization and professionalization helped to earn journalists a special constitutional status as public trustees. The Supreme Court at some important moments embraced the idea that the press serves the people by checking the government and powerful private actors. First Amendment case law insulated newspapers from liability for criticizing government officials,Footnote ²⁸ let them publish explosive national security documents,Footnote ²⁹ and gave them a presumptive right to cover criminal proceedings.Footnote ³⁰ Over time, doctrinal emphasis shifted from protecting the press for the public to protecting the press from the public, with holdings that the First Amendment shielded newspapers from right-of-reply statutesFootnote ³¹ and did not compel the mass electronic media to sell airtime to political speakers.Footnote ³² All these Court decisions extolled the institutional news media’s editorial discretion.

Eventually, though, the Court shifted to viewing the press as an ordinary, profit-making industry. The justices rejected major First Amendment priorities of the institutional press, most notably a claim of the right to protect the identities of confidential sources from law enforcement.Footnote ³³ Ultimately the Court declared, in a sideline of its infamous Citizens United decision, that the First Amendment does not even countenance treating newspaper editorial boards’ electoral endorsements as distinctly valuable for democracy.Footnote ³⁴

My writing has lamented the decline of journalistic professionalism.Footnote ³⁵ The related decline of media institutions presents a more complicated issue.Footnote ³⁶ We’re better off without the big three networks’ hegemonic power. At the same time, economic forces have decimated the ranks of newspapers.Footnote ³⁷ Most surviving papers have had to scale back their journalistic missions.Footnote ³⁸ Filling the void of lost professional journalists are dizzying throngs of internet and social media content providers. These new “journalists” generally operate outside institutional structures. They tend not to identify with the journalistic profession, and most of them work independently or in smaller, looser organizations. They largely forgo professional training. Some adhere to ethical standards, but many do not. Even many conscientious online news providers don’t think or behave like professional journalists. The shift from institutional to disaggregated journalism has caused concern that today’s news media lacks the requisite integrity and rigor to help sustain democracy.Footnote ³⁹ That concern has prompted calls for further restrictions on press freedom, including arguments from Supreme Court justicesFootnote ⁴⁰ for overruling the actual malice standard for defamation in New York Times Co. v. Sullivan.Footnote ⁴¹

Anxiety about the institutional news media’s decline parallels a prominent theme in our broader political discourse. One of the strongest terms of condemnation in the twenty-first century political lexicon, the equivalent of “Lochnerist” among jurists or “humanist” among religious conservatives, is “populist.” The problem with Donald Trump, his Republican critics insist, is that he’s an erratic populist, nothing like their conservative paragon Ronald Reagan.Footnote ⁴² Bernie Sanders, to some liberal commentators, is just Trump in a cheaper suit, another populist bomb thrower.Footnote ⁴³ Populism, in many accounts, spawned the January 6, 2021, insurrection.Footnote ⁴⁴

Disinformation about vaccines stems from populist opposition to scientific expertise.Footnote ⁴⁵ Populism fosters nativist opposition to immigrationFootnote ⁴⁶ and – much worse – to free trade.Footnote ⁴⁷ Only stable, responsible institutions can save us from the populist hordes.Footnote ⁴⁸ This moral panic about populism once again conjures Lippmann, whose mistrust of the people’s capacity to participate meaningfully in collective self-governance famously led him to advocate an elite, technocratic version of democracy.Footnote ⁴⁹

Our history, however, offers a radically different exemplar of populism. In the late nineteenth century, the agrarian populist movement challenged the burgeoning power of capital, advanced the cause of organized labor, and led battles for policy and political reforms like the graduated income tax and direct election of US senators.Footnote ⁵⁰ Populism, in the sense of that movement, seeks to ground a political program in a credible understanding of what the diverse mass of ordinary human beings needs in order to survive and flourish. That history exposes today’s pejorative simplification of “populism” as a shabby rhetorical hustle and a pernicious occlusion of substantive politics. Trump is no populist; he’s a megalomaniac, a criminal, and – most politically salient – a model conservative, as servile a bagman for capital as Reagan and sundry Bushes before him. Sanders, in contrast, is indeed a populist, one who, like his nineteenth-century forebears, promotes a specifically left-wing policy program. January 6 wasn’t populist; it was incipiently fascist. Anti-vaccine mania isn’t populist; it’s blinkered and paranoid. Nativism isn’t populist; it’s … well, nativist. Flattening political differences under the damning mantra of “populism” is neoliberal gaslighting. Populism is a mode of political organization, not a substantive political agenda.

On the alarmist account of populism, today’s online rabble “does their own research” and then screams whatever they want at the biggest audience they can excite.Footnote ⁵¹ The fragmented cacophony of online news sources is populism’s shrill chorus.Footnote ⁵² On the more historically informed account, today’s noninstitutional journalists are “populist” only at their best and despite their limitations. An honest effort to speak of and to the broad US public – working people, communities robust and marginal, people of diverse identities – is something our society sorely needed but rarely got from the last century’s institutional news media. Most VIPs at the broadcast networks and newspapers of record were middle-class, white, ideologically centrist men. Most of their audience wasn’t. The rise of identity-based liberation movements buckled the institutional media’s ramparts, yielding a commercially marginal but dynamic alternative press.Footnote ⁵³ At the same time, the institutional media’s persistent market power inspired calls for public access to media outlets. Professor Jerome Barron contended that First Amendment law should compel the institutional media to provide platforms for ordinary people with differing perspectives.Footnote ⁵⁴

My scholarship has pressed a variation on Barron’s argument in the context of twenty-first-century politics and media.Footnote ⁵⁵ Online communication may seem to have obviated the problem of media access. Communication technology lets more speakers than ever before reach large audiences and gives audiences access to more information than anyone can process. As I have emphasized, however, online speech architecture perpetuates and exacerbates economic disparities in speakers’ capacities to reach audiences.Footnote ⁵⁶ Social media platforms, search engines, and internet service providers loom even larger over today’s communication landscape than the big three networks loomed over the late twentieth century.Footnote ⁵⁷ Rather than directly dictating content, these new intermediaries control the infrastructure through which content travels and commodify the scarce resource of human attention.Footnote ⁵⁸ Accordingly, the struggle for media access has evolved from pursuing airtime to the more complicated task of pursuing a democratic communication architecture. The left pushes net neutrality,Footnote ⁵⁹ the right assails social media platforms’ restrictions on hate speech and misinformation,Footnote ⁶⁰ and the new online intermediaries resist all forms of regulation just as doggedly as the last century’s intermediaries fought access mandates.

Disaggregated, populist online journalism embodies a form of resistance to concentrated power. At the same time, the dissipation of professional journalistic norms and practices threatens to degrade the news media’s democratic function. Working through this tension carries high stakes for our beleaguered democracy. Journalism is ultimately a practice, and that practice must inspire public trust.Footnote ⁶¹ The news media needs sufficient resources to sustain careers in journalism and fund democratically essential investigative reporting and “deep dives.” The media also needs sufficient resilience to weather pressures from government and private power centers. Journalistic coverage needs to extend from the wide world to local neighborhoods. The local end of that coverage needs to transcend the suburbs, where advertisers pan for profit, to reach both neglected urban centers and the diffuse towns in our growing news deserts.Footnote ⁶² Journalism should function not as a system of content delivery to consumers but rather as a source of information for the people. Figuring out how best to satisfy these criteria for journalism will require sustained, critical public attention to the political challenge of optimally balancing reliable institutions and populist energy.

3.3 Conclusion

The First Amendment manifests a political choice to promote collective, democratic self-governance through the mechanisms of free speech and a free press. The Constitution, however, leaves much to ponder about what democratic self-governance means and about how the free press can and should contribute to democracy. The twenty-first century has delivered an information tsunami that has shaped many of our present political conflicts. The overwhelming crush of available information offers new opportunities for governments and private oligarchs to exercise dominance. In these political conditions, we struggle to balance our need for objective truth with our awareness of subjective contingency, and we struggle to reconcile the stable certainty of institutionalism with the creative potential of populism. Both of these political struggles must inform our efforts to fortify and enhance the democratic press and to create legal regimes we can trust to protect it.

The answer to the question “What is journalism for?” often turns into a catalog of aspirations. That list might include informing the public, connecting communities, holding power to account, providing guidance and expertise, recording and remembering events, amplifying the voices of the marginalized, serving as a forum for public debate, enlightening readers and viewers, interpreting the complexity of institutions and social life, reflecting on the impact of policies, entertaining audiences, inspiring action, and helping people understand the world beyond their immediate experiences.Footnote ¹ In reality, of course, journalism often fails to meet these aspirations, just as our actual democracy falls short of our ideal. But even accepting that perfection is never possible, it has become increasingly challenging for journalists today to attempt to meet these democracy-enhancing ideals.

Economic, technological, political, and cultural changes have put at risk the kinds of newsgathering and reporting that feed our civic culture – public affairs and investigative journalism. In the past, the commercial market did not fully support this type of valuable journalism; it was instead subsidized by the larger “newspaper bundle” – the revenue generated by the combination of crosswords, obituaries, and crime, sports, and lifestyle reporting that drove people to subscribe to newspapers.Footnote ² Local newspapers, which have suffered the biggest cuts in journalism, have long served as the keystone for their communities, providing the most significant portion of original news coverage about any one geographically specific place.Footnote ³ According to Medill’s Local News Initiative, over the fifteen-year span between 2004 and 2019, about 1,800 communities have lost access to regular local news.Footnote ⁴ Pew Research Center estimates that newspaper employment fell 57 percent between 2008 and 2020, while employment in newsrooms dropped 26 percent overall.Footnote ⁵ These declines have real impacts on what news organizations can do to cover communities, with estimates suggesting the annual loss of 300–500 news stories about politics per major metropolitan news outlet.Footnote ⁶ As news organizations are gobbled up by hedge funds looking to sell off distressed assets, they further cut journalism jobs.Footnote ⁷ Newspapers that are still open for business often have little local news reporting at all; some call them “ghost newspapers”Footnote ⁸ because they are visages of their former selves, hanging on with no life to them.

This type of journalism, which might be called the “institutional news media”Footnote ⁹ (although it is often called “mainstream media” by its detractors), has a specific commitment to truth. It serves as a critical institution within civil society and comprises fact-based, truth-seeking journalists and news organizations who see themselves as a part of a profession committed to standards and ethics situated more broadly in democratic norms. As the United States faces the real threat of democratic backsliding,Footnote ¹⁰ it becomes increasingly clear that the current commercial news media simply lacks the power and capacity to facilitate the development of the “informed citizen” who is foundational to liberal democratic ideals.Footnote ¹¹ But if the informed citizen model implodes – thanks to factionalism, decaying trust in institutions, and digital platforms that further undermine media economics – what, then, is left?

This chapter argues for the need to reconceptualize citizenship in an era when professional journalism plays a significantly diminished role in directly shaping our news and information environment, especially at the local level. First, I make the case that we must consider what it means to live in a post-newspaper democracy. In a time of market failure for local news, both journalists and the public need to identify which functions are unique to professional journalism as a civic institution.Footnote ¹² Second, I join others who have argued that we need to move away from the concept of the “good citizen”Footnote ¹³ as only a consumer of information/voter as their form of civic participation. Instead, I call for reimagining citizenship with communication at its center. Within this theory of “communicative citizenship,” a good citizen plays the civic role of communicator, not as a replacement for journalists, but instead as a facilitator of the flow of reliable civic information from institutions to their fellow community members. If we accept that newspapers and for-profit, digital-first news outlets face an uphill battle to survive, yet we believe that their function is essential to democratic life, then perhaps it is possible to shift some of the responsibility for fulfilling these functions from newspapers to the people themselves.

4.1 The Post-Newspaper Democracy

The post-newspaper democracy is not a democracy without newspapers; rather, it is a democracy wherein newspapers can no longer take on all the roles we might hope. Still, newspaper journalism is inspirational: At its best, it is a benchmark to measure the expertise, ethics, and impact that professional journalism can have on society. If we think about the best that newspapers promise, we can also identify what is special about professional journalism itself, demarcating the expertise that ordinary people are unlikely to replicate in their own efforts in gathering and sharing news and information. As I have discussed in previous work, especially my book, News for the Rich, White, and Blue: How Place and Power Distort American Journalism,Footnote ¹⁴ a post-newspaper democracy takes seriously the reality that the model of civic life in which people are united together in an imagined community via what Benedict Anderson calls “print capitalism” is now over.Footnote ¹⁵ While we may lament the decline of newspapers and what that means for democracy, we may actually be mourning the loss of the role that newspaper journalism plays in civic life. Just because the local newspaper as we know it may be over in its functional form does not mean we have to give up on what newspapers bring to the civic imagination. Rather, we should focus on identifying the unique values that journalism, and no other social institution, provides and then on supporting those special attributes of journalistic professionalism and authority. This, in turn, helps us reimagine civic life with communication at the center, including how we practice citizenship and social organizing.

What unique roles do journalists, supported by news organizations, fulfill that make them different from other professions? Professions are defined as specialized jurisdictions over particular forms of work and are bounded by the unique tasks they perform that other professions cannot. They are then granted legal, institutional, and cultural license to do this work.Footnote ¹⁶ Because journalism is their full-time job, professional journalists are able to be physically present in places and at events that we cannot personally experience. They then share with the rest of us what they deem important for us to know in order to live our daily lives and make informed decisions. Journalists also get to be expert translators, interpreting complicated information that demands subject-matter expertise into insights for ordinary people.Footnote ¹⁷ While journalists do not always do this perfectly, most of us do not have time to comb through legislation, read scientific articles, and talk to experts about topics of public import. Journalists do this labor for the rest of us. With the concept of professional jurisdiction in mind, I see two roles of professional journalism that need to remain separate from what ordinary people might do in their roles as citizen communicators:

1. (1) investigative work/monitoring of powerful institutions, and

2. (2) voicing or centering the concerns of the most marginalized in public discourse.

First, journalists are best positioned to do the work of covering the powerful via routine inquiry and investigative projects. This work requires journalists to be in places that ordinary people cannot: at press conferences, in statehouses outside the reach of anyone without an ID badge, and even past airport security without having to fly anywhere. A press pass permits journalists entry into places where the powerful do their work, giving them a deep understanding of these inner workings.Footnote ¹⁸ Sharing this knowledge with the public requires skills that most people, even the best citizen communicators, may not have. Industry experts may have knowledge and even independence from the institutions and industries they are a part of, but making these insights understandable requires translation skills, converting complex ideas into words, pictures, sounds, and graphics to make them more understandable for ordinary people. At their best, journalists have these translation skills to explain how people, power, and money can impact institutions and, ultimately, the public. In short, journalists tell stories about complicated issues and organizations that generally would not welcome an outsider’s regular scrutiny.

Journalists, in turn, benefit from heightened legal protections for their activities.Footnote ¹⁹ When they are employed at news organizations, journalists (and we, as news consumers) also benefit from layers of editing, verification, fact-checking,Footnote ²⁰ and, most importantly, independence. At least in theory, journalists will not get fired for holding institutions accountable when they are not beholden to them for employment. Despite critiques about journalists being embedded in power structures, they at least do not have to raise money from special interest groups to support an election campaign or to depend on a corrupt city government for their next paycheck.

This independence gives journalists a second critical role in civic life: the capacity to direct the public gaze by revealing injustice and holding truth to power. As “custodians of conscience,” journalists can draw our attention to shared normative concerns that appeal to human dignity rather than partisan identity.Footnote ²¹ They remind us that children should not be abused, businesses should not knowingly harm employees or customers, politicians should not steal money, and, fundamentally, that the American democratic project, despite its imperfections, is worth supporting. Journalists, then, serve the role of connected amplifier and public conscience for human dignity. By turning systemic injustice into digestible narratives for public consumption, journalists can help amplify marginalized voices.

Unfortunately, the market failure of journalism jeopardizes the ability of journalists to draw attention to those most hurt by the excesses of institutional power.Footnote ²² As I argue in News for the Rich, White, and Blue, people from marginalized communities are even less likely to become journalists as jobs in the industry become ever more unstable.Footnote ²³ Those with fewer resources lack a safety net if they lose their journalism jobs, and newsrooms have failed to make meaningful gains in diversity and equity over the past twenty years.Footnote ²⁴ Moreover, marginalized groups are considered an audience that is unlikely to pay for news or support it philanthropically,Footnote ²⁵ making it more difficult to tell these stories and maintain fidelity to the experiences of people in marginalized communities.

The specific professional jurisdiction of journalism is not so much that it informs people of important happenings in the community or knits communities together in a shared sense of place and purpose.Footnote ²⁶ The best use of journalists’ special expertise is to speak truth to power through investigative journalism and as custodians of conscience. Particularly in a time of scarce resources, journalists might forego chronicling the day-to-day and attempting to centralize the distribution of community knowledge – for example, spreading word that an event is taking place or a new municipal rule is being considered – because many other organizations can step in to fill basic information needs, from schools to churches to local government.Footnote ²⁷ In fact, the ability of civic institutions other than journalism to inform the public has grown, and these institutions now have the ability to create and share stories about particular places and their present and past in ways that create identity, belonging, a shared sense of purpose, and cultural memories for communities. But thus far, we have overlooked another group who can also contribute to their local news environment and help mitigate the declines in local journalism – individual citizens.

4.2 Democracy and the Everyday Storyteller

Most democratic theory tends to imagine journalism as a critical institution for transmitting the information people need to live their daily lives and make informed choices. But this transmission view of communication – the view that messages travel from point A to point B and, in turn, lead to attitude or behavioral changes – is a simplistic understanding that fails to capture the role of communication and citizenship as integral parts of community life. Scholar James Carey juxtaposed this transmission view, which roots communication in message transference, with the ritual view of communication.Footnote ²⁸ Under the ritual view, communication, which shares a philological root with community, can also bring people together in a shared experience of the world around them. Ritual communication is part and parcel of the cultural practice of living in a community and sharing stories about who we are and what we value. While information is being transferred and messages are being communicated, the process is embedded in forms that are shared across individuals within a community rather than being atomized into units of individual consumption.

Different forms of democracy center on different communication regimes. Scholar C. Edwin Baker theorized that in elite democracy, journalism functions as a watchdog for the powerful and focuses on the actions and sanctions of other empowered actors while being less focused on informing ordinary people.Footnote ²⁹ In contrast, liberal democracy centers on the atomized individual as a rights-bearing, informed citizen, with journalism serving as the primary definer of discourse in the public sphere. In this model, the good citizen is an informed citizen who turns to journalism for guidance about their civic participation. But this is not a model of citizenship that makes sense when there are decreasing sources of professional local news and information and when many Americans simply do not trust professional journalism.Footnote ³⁰ Moreover, this form of democracy centers the individual as the ultimate authority for sensemaking, displacing the role of community as the setting and context through which people make sense of the world.

However, Baker’s theory of representative democracy moves beyond the individual citizen and conceives of pluralism and communitarian beneficence as central goals of democratic life. In this mode, journalism is but one of many ways for people to communicate. Art, poetry, movies, entertainment, public forums, and interpersonal communication are all forms of communication that knit together people across differences into a shared cultural project of representative pluralist democracy.Footnote ³¹ Taken together, Carey and Baker support the idea that the news a representative democracy needs goes beyond just information; it also requires ritual communication grounded in community, with shared knowledge coming from journalism as well as other social institutions and interpersonal communication. This communitarian ethos is also pragmatic. If democracy is instantiated in discourse, the public sphere cannot maintain its dependency on journalism to facilitate the public’s broader conversation,Footnote ³² especially given journalism’s precarious financial model and public distrust in its legitimacy.

4.3 Communicative Citizenship

To address the challenges facing democratic life as professional journalism faces market failure, I want to introduce the concepts of “communicative citizenship” and the “citizen communicator.” This is a new approach that I have begun, theorizing about what ordinary people can do to more actively participate in creating an informed public sphere through and by communication. In the US context, the term “citizenship” can be problematic because it has too often been used as a gatekeeping mechanism for entry and access to participation and representation in government.Footnote ³³ But given the association between citizenship as a word and its connotation of a shared responsibility in political life, the word remains a powerful way to describe buy-in to a common set of normative assumptions and values about democratic life.Footnote ³⁴ Embracing my framing of “communicative citizenship” enables a more affective understanding of citizenship. Communicative citizenship is also a feeling – in the sense that people who do not know each other but share some defining characteristic, such as where they are physically located, can develop a sense of belonging beyond a mere legalistic relationship.Footnote ³⁵ Communicative citizenship retains some of the fundamental premises of the informed citizen model of democracy, namely that good information is necessary to make informed decisions. However, it shifts some of the burden to ordinary people instead of depending on local newspapers to do the job in our communities. The good citizen centers on communication, not just information transfer, as an essential element of performing citizenship.

Communicative citizenship, embodied by citizen communicators, invokes the capacity of ordinary people to use “talk” to help strengthen their local information environments. This is achieved through a more intentional approach to their day-to-day engagement with their communities via both digital and physical spaces; civic institutions, friends, family, and geographically proximate strangers; and the built environment. Certainly not everyone has the same ability or desire to talk about shared concerns, especially with unfamiliar people and given entrenched power inequalities.Footnote ³⁶ The realization of communicative citizenship is thus limited by the inequalities that plague democratic life more generally. Nonetheless, in their ideal form, the communicative citizen brings with them a willingness to talk about issues and concerns that matter to the community-level public sphere. They strive to be as informed as possible to effectively engage in dialogue with others about how to understand and solve community problems.

Citizen communicators are critical agents in helping others around them fulfill their critical information needs, or “those forms of information that are necessary for citizens and community members to live safe and healthy lives; have full access to educational, employment, and business opportunities; and to fully participate in the civic and democratic lives of their communities should they choose.”Footnote ³⁷ Communicative citizenship has three central pillars: the multifaceted role of the communicative citizen, the utilization of digital technology, and the purposeful use of communication. The communicative citizen serves as the sender, receiver, node, and infrastructure in the communication process, leveraging digital technology to amplify their efforts and employing communication to foster solidarity and a shared commitment to a hopeful vision for a better future.

4.4 Citizen Communicators and Solidarity

Citizenship is often understood primarily through the lens of politics and political institutionsFootnote ⁵¹ rather than the relationships that we have with each other and the communities around us. Because the state grants citizenship, it is also often framed as conditional, implying that citizens “owe” something to the state in exchange for being given the autonomy to help chart its direction.Footnote ⁵² This may include voting, being informed, and engaging with the community.Footnote ⁵³ But the concept of the informed citizen has always been more of an ideal than a reality, particularly because being informed requires time, access, and the capacity to comprehend and discern key insights for civic action amid a cacophony of strategic actors trying to influence the information available.

When good citizenship centers the role of communication, and the aim of that communication is to help connect others to navigate civic life and to engage more fully in their communities, the focus of democratic life shifts from cause-to-cause interactions to strengthening person-to-person community ties. Unfortunately, performing citizenship is a privilege accorded to those who have the time and the capacity to think beyond immediate survival needs. The reality of citizenship in a capitalist society is that not all citizens are able to participate equally due to structural inequalities such as racism, poverty, limited access to civic institutions, and other barriers. But talk is cheap, and people do have expertise about their own lives. The most marginalized members of our polity have valuable insights that those of us with more privilege need to hear. While the ability to communicate in a normative way also creates barriers, conversation may be the most direct way of connecting people with nothing in common. In this regard, citizenship that centers communication and refocuses our attention on people’s agency to engage in the transfer of interpersonal knowledge becomes a building block for realizing a representative democracy that fosters pluralism, tolerance, and a shared commitment to hope for a better future.

The U.S. Justice Department recently estimated that the January 6 riot inflicted roughly $2.7 million in damages to the Capitol building and Capitol police.Footnote ¹ Presumably, only a minuscule amount of those damages – perhaps a few dollars’ worth of strong solvent or paint – are attributed to addressing the words “MURDER THE MEDIA” that were scrawled in permanent marker on the Capitol’s Memorial Door. “Elders” of the far-right group the Proud Boys had left the ominous message in homage to their social media channel by the same name.Footnote ² Yet the actual damages of this threat to the press and, by extension, the public, are surely much more significant. How, though, does one fully account for the damage that threats and violence against the media inflict, or for its causes?

On January 6, at least eighteen journalists were assaulted;Footnote ³ some later shared harrowing accounts of their experiences.Footnote ⁴ Outside the building, tens of thousands of dollars of press equipment was destroyed by a mob that posed for pictures with its handiwork.Footnote ⁵ Threats or harm to journalists are hardly limited to that day and place. A few years earlier and less than an hour’s drive away in Maryland, five employees of the Annapolis Capital Gazette were murdered by a man who had unsuccessfully sued the paper after it reported on his alleged harassment of a former classmate.Footnote ⁶ Fifteen journalists have been killed in the United States in recent decades,Footnote ⁷ and one recent report counted 142 assaults on journalists in the United States in 2021 alone.Footnote ⁸ Highlighting the nation’s failure to protect journalists, Reporters Without Borders recently declared that the United States is “no longer a champion of press freedom, either at home or abroad.”Footnote ⁹

Against that broad backdrop, this chapter has two aims. The first is to argue that the press as an institution is entitled to special solicitude under the First Amendment, not only because it is textually specified in the ConstitutionFootnote ¹⁰ or because it serves important roles, such as checking public and private power,Footnote ¹¹ but because it can contribute to the marketplace of ideas in ways that a healthy democracy needs. In other words, the press as an institution can provide an important link between the First Amendment’s epistemic and democratic values.

The chapter’s second goal is to provide a rough and preliminary sketch of the relationship between press freedom, violence, and public discourse. Some elements seem straightforward enough. Violence and harassment obstruct the press’s function,Footnote ¹² including its traditional role in constituting and shaping public discourse.Footnote ¹³ But other elements of the relationship are more complex. Distrust, disinformation, violence, and press degradation exist in a mutually reinforcing ecosystem. And even as violence shapes the media, the media shapes the social conditions, understanding, and practice of violence in return. Journalism, albeit in different ways than legal interpretation,Footnote ¹⁴ “takes place on a field of pain and death,” to repurpose Robert Cover’s famous phrase – not only in describing it but in making it real. This, it should go without saying, is no excuse for violence against media members. The point is, rather, that a healthy press can be a bulwark not only for knowledge and democracy but against the kinds of private and public violence that threaten both.

The First Amendment, and constitutional law more broadly,Footnote ¹⁵ must grapple with violence – not merely its rhetorical reliance on violent metaphors,Footnote ¹⁶ but the ways in which interpersonal violence shapes democratic institutions and the public sphere. As Erin Carroll observes: “Violence against journalists is a means of controlling the boundaries of legitimate public discourse.”Footnote ¹⁷ And as Reva Siegel and I have argued elsewhere,Footnote ¹⁸ if a democracy cannot establish the boundaries of violence, then violence will end up establishing the boundaries of democracy – including the freedom of the press.

5.1 Knowledge, Democracy, and the Press

Many of the First Amendment’s paradigmatic scenes involve a lone speakerFootnote ¹⁹ – sometimes wise and eloquent, sometimes horrible and profane – and the freedom of speech is of course an individual right, exercised to a variety of autonomous ends. But free speech is ultimately embedded in social practices and can only be understood and analyzed in terms of the social values it serves. As for what those values are, some point to the role of speech in protecting or enabling democracy, others to epistemic goals like the pursuit of truth in the marketplace of ideas, and others to speaker autonomy or other principles.Footnote ²⁰

In the context of press freedom, democracy seems to be the value most often invoked by judges, scholars, and for that matter journalists themselves – consider “Democracy Dies in Darkness,” which The Washington Post adopted in 2017 as the first official motto in its 140-year history.Footnote ²¹ And the socially embedded nature of speech is probably also easiest to recognize in the context of democracy, which is itself a collective exercise. It thus seems perfectly natural – whether or not one considers the Fourth Estate to be the fourth branch of government – that many people accept that the press has an important institutional role to play in a well-functioning democracy by, among other things, holding government actors to public account.

Can the same be said for the institutional press under an epistemic account of the First Amendment – one that emphasizes the pursuit of truth and other cognitive values instead of the participatory and political stakes of democracy as such? Given the enormous influence of the marketplace of ideas metaphor,Footnote ²² it would be a significant loss for advocates of press freedom if the answer were no. Considering the significant anxiety that many people feel about our current “post truth” eraFootnote ²³ and the collapse in trust of knowledge institutions,Footnote ²⁴ it seems especially urgent to articulate a role for the press in combatting disinformation and providing reliable expertise.Footnote ²⁵

My argument here, drawing on prior work, is that epistemic theories of the First Amendment can indeed provide a strong case for the recognition and protection of press freedom. And the role of the institutional press in the pursuit of truth, knowledge, and other epistemic values can in turn be connected back to the value of democracy itself.

To get there as a matter of First Amendment theory, it is helpful first to reject or at least modify the individualistic, atomistic conception of the marketplace of ideas that many accounts of free speech seem to adopt and, to be fair, that Justice Holmes might have had in mind when he helped launch the metaphor with his dissent in Abrams.Footnote ²⁶ It is important instead to understand the marketplace of ideas and any production of truth it encourages as a set of social practices, governed by norms and rules that go beyond individualized and idealized transactions of thought.

Though there may be other good reasons to reject the market metaphor entirely, this particular conceptualization is entirely in keeping with economic theory. Economists, at least since Ronald Coase, have emphasized that the market is populated and constructed not only by individuals but by institutions, which Douglass North (one of the architects of New Institutional Economics, or NIE) described in his Nobel Prize lecture as “the humanly devised constraints that structure human interaction. They are made up of formal constraints (e.g., rules, laws, constitutions), informal constraints (e.g., norms of behavior, conventions, self-imposed codes of conduct), and their enforcement characteristics.”Footnote ²⁷ As fellow Nobel laureate Oliver Williamson explained:

A rich literature chronicles some ways in which these institutions can facilitate property rights and markets.Footnote ²⁹

The recognition of institutions and their role in economic exchange has a rough parallel in accounts of free speech that center the importance not only of broad speech values and discrete speech acts but of the social practicesFootnote ³⁰ and non-state actorsFootnote ³¹ that enable and shape them. This is especially evident in “institutional” approaches of the First Amendment.Footnote ³² In the words of Fred Schauer, who penned some of the most influential articles in that vein,Footnote ³³ “An institutional understanding of the First Amendment is structured around the principle that certain institutions play special roles in serving the kinds of values that the First Amendment is most plausibly understood to protect.”Footnote ³⁴ The list of institutions that play such “special roles” is commonly thought to include universities and, of course, the press.

In Institutions in the Marketplace of Ideas,Footnote ³⁵ I attempted to pull together these two threads: the NIE on the one hand and the institutional First Amendment on the other. What NIE scholars advocated was attention to the social practices (i.e., institutions) that constitute an economy, rather than assuming away the messiness and focusing on an idealized process of exchange. Trust and social norms, for example, can facilitate trade even in the absence of formal law. Free speech theory can do the same, since “if the marketplace of ideas is the animating purpose of the First Amendment, it can be served by institutions as well as by individuals.”Footnote ³⁶ In other words, there are institutions that facilitate the marketplace of ideas through the equivalent of lowering transaction costs and should receive some special solicitude as a result.

Of course, there is deep disagreement about which institutions serve First Amendment values and how. In Free Speech and Justified True Belief, I focused more directly on that problem, suggesting that the underlying epistemic value of the First Amendment could be understood not as “truth” but as “knowledge” – roughly defined, in keeping with basic epistemology, as justified true belief.Footnote ³⁷ Doing so could help clarify the underlying debate in the era of “fake news” and “alternative facts,” which is not really about the importance of truth but about where it is to be found. Indeed, one of the central perversities of disinformation is that people in its grip firmly believe in the importance of truth and that they are in possession of it. The challenge, then, is to re-center the question of justification: the institutions and habits of mind that are valuable in forming true beliefs.

This is a question of epistemology, to be sure, but one focused on social practices and institutions, including the press:

The point is that the press as an institution can play an important role in advancing the search for truth (or knowledge), and that doing so is – along with other press functions – important to the preservation of a healthy democracy. It can, along with other speech institutions, like universities, help bridge the gap between democratic and epistemological approaches to free speech.Footnote ³⁹ As Robert Post notes, the First Amendment relies on “democratic competence,” which is the “cognitive empowerment of persons within public discourse, which in part depends on their access to disciplinary knowledge.”Footnote ⁴⁰ And as Justice Powell recognized:

There are, of course, complications with any self-consciously institutionalist account, but those complications do not seem different in difficulty – nor perhaps even kind – from those that one finds elsewhere in free speech law.Footnote ⁴² There is admittedly no simple or objective way to identify the kinds of social practices that contribute to knowledge. But neither is there a way to identify which acts count as “speech” in the first place. It might also be difficult to separate the “press” from other speakers – a challenge that seems to have deterred many from the attempt.Footnote ⁴³ But the question should presumably be one of activity (i.e., when is one engaged in journalism) rather than identity (i.e., is one a journalist),Footnote ⁴⁴ which is on par with other challenging-but-foundational First Amendment inquiries, like whether one is speaking as a professional or as a public employee on a matter of public concern.

In any event, it is worth noting that those who attack the press – physically and otherwise – seem to have little difficulty separating traditional media from others. Those who scrawled “MURDER THE MEDIA” were not fazed by definitional difficulties and line-drawing, even if scholars and judges are. It is like a twist on a horror movie trope: Instead of the bad guys being invisible to all but the protagonists, the protagonists are invisible to all but the bad guys.

5.2 The Surprisingly Complicated Relationship Between the Press and Violence

Threats to press freedom come in many forms. Some are subtle or structural: judicial disregard,Footnote ⁴⁵ changes in the media market,Footnote ⁴⁶ or the proliferation of disinformation and misinformation online,Footnote ⁴⁷ for example. The threat of violence, by contrast, is the proverbial wolf that comes as a wolf:Footnote ⁴⁸ the apparent opposite of reasoned speech or, for that matter, democratic self-government. But the fact that its incidents are so visceral does not make it any less complex. Violence is not only a threat to journalism – though it certainly is that – but is shaped by it in return. Only by considering the relationship holistically can we understand how it shapes the boundaries of public discourse.

Though violence against the press has not been the subject of much extended scholarship,Footnote ⁴⁹ it is nothing new in the United States.Footnote ⁵⁰ The 1837 murder of abolitionist newspaper editor Elijah Lovejoy is one prominent example,Footnote ⁵¹ as is the attack on Ida B. Wells-Barnett, whose printing press was destroyed by a white mob in Memphis in 1892.Footnote ⁵² As John Nerone notes in his excellent historical account of anti-press violence in the United States, “Violence was common when minorities claimed the press as a voice of their own.”Footnote ⁵³

Broadly speaking, anti-press violence subsided for much of the twentieth century, coinciding with – and perhaps facilitated by – the rise of a less explicitly partisan, more homogenized, and more commercialized mass media.Footnote ⁵⁴ But recently, there has been a disturbing resurgence in anti-press violence around the world, with more than 2,000 journalists killed in the past 30 years alone, 15 of them in the United States.Footnote ⁵⁵ Killings are only one particularly horrific part of the story. The U.S. Press Freedom Tracker reports that in 2020 (which saw a spike in anti-press violence by private and public actors), more than 100 journalists were arrested or criminally charged in relation to their reporting, and roughly 300 were assaulted.Footnote ⁵⁶ At least fifty journalists have sued law enforcement officers or other officials for violence and other mistreatment during coverage of protests following the murder of George Floyd.Footnote ⁵⁷ Violence and threats against the press disproportionately target women and minorities,Footnote ⁵⁸ and they are facilitated by the rhetoric of people like the former president, who regularly decries the “fake news,” calls journalists “enemies of the people,”Footnote ⁵⁹ and says the media should “pay a big price.”Footnote ⁶⁰

Violence against the press is a threat both to journalists and to democracy itself, and like other such threats, addressing it is both difficult and urgent. But it would be a mistake to see the connection in only one direction. When it comes to identifying and protecting the press function, as the organizers of this convening have challenged us to do, some of the most difficult phenomena to address are those that are simultaneously symptoms and causes. Distrust, misinformation, and the like are reasons for the press’s current predicament and are also results of it. Violence must be understood in the same way.

Violence has its own ecosystem, of which the press is not just a victim but also a constitutive part. The ways in which the press reports on violence generally – or violent incidents specifically – shape how society understands, responds to, and practices that violence. For example, whether people perceive violent crime to be an increasing problem, and whether they see law enforcement as the appropriate response, will naturally be informed by what they learn from media sources. The same is true of police violence and other phenomena.

One area where the press’s role has been especially prominent is in the coverage of firearm violence, as some experts have suggested that reporting “does more harm than good,”Footnote ⁶¹ especially when it comes to coverage of mass shootings, which “tests the skill of reporters and the judgment of news organizations.”Footnote ⁶² In the words of one report, “media coverage tends to follow a clear pattern, peaking around mass shootings and fading with the next breaking news event.”Footnote ⁶³ This can undermine public support for regulatory approaches that address the full range of gun violence,Footnote ⁶⁴ given that mass shootings account for just a tiny proportion of the nation’s nearly 50,000 gun deaths per year. One researcher notes that while mass shootings account for about 1 percent of US gun deaths, they “soak up about 95 percent of the oxygen in terms of the national conversation of gun violence.”Footnote ⁶⁵

Perhaps even more troubling, some research has found that mass shooters are significantly incentivized by the prominence of such eventsFootnote ⁶⁶ – suggesting perhaps that media coverage is both a symptom and a cause. The same might well be true of gun use and gun displays more broadly. Charles Homans describes recent media coverage of armed militiamen in Richmond, Virginia, noting that journalists appeared to outnumber their subjects and that the latter were “waiting with transparent eagerness for reporters to swarm around them and feigning reluctance when they did.”Footnote ⁶⁷

To be clear, the point is not to blame the press for the nation’s gun violence problem. The point, rather, is to recognize and emphasize the importance of a well-functioning press in addressing it. That is entirely consistent with – indeed, provides supportive evidence of – the institutional account in Section 5.1. A press that develops and respects internal norms and best practices about reporting on gun violence is precisely the kind of norm-governed institution whose norms deserve deference, just like scholarly disciplinarity helps justify special First Amendment solicitude for universities.

It would require far more detailed work to know whether and how journalists follow desirable professional practices when reporting on gun violence, but it is evident that the profession is trying to develop such practices.Footnote ⁶⁸ A Journalist’s Guide to Reporting on Mass Shootings, for example, draws attention to the “Columbine Rule,” which one journalist summarizes as, “a lot of what you find out in the first 48 hours turns out to be bullshit.”Footnote ⁶⁹ Other practices include focusing on gun violence beyond mass shootings, as well as not naming shooters. (The Buffalo and Uvalde shooters remain largely anonymous as compared to those from earlier shootings at Parkland and Charleston.)Footnote ⁷⁰

Of course, to do so well also requires significant time and resources, which only some newsrooms or organizations are able to commit. The Trace was founded in 2015 as the “only American newsroom dedicated to full-time coverage of gun violence”Footnote ⁷¹ and has contributed extraordinary journalism to a range of gun-related issues, including the NRA investigation that ultimately led to the organization being sued for violation of nonprofit laws.Footnote ⁷² Other newspapers have launched “projects” focused on state and local gun violence.Footnote ⁷³ These developments should be celebrated and supported, just as violence against journalists must be condemned and prevented.

It is far beyond the scope of this brief chapter to fully map the ways in which violence and the press are intertwined or how the boundaries of public discourse are shaped in part by their relationship. But the discussion has hopefully illuminated two major concepts essential to that broader project. First, the press can play an important and overlapping role in furthering the First Amendment’s epistemological and democratic values. Second, as violence against the press becomes more rhetorically and viscerally prominent, it is all the more urgent that we grapple with the complicated relationship between the two.