One of the potential impediments to having the government grant special access or protection to “the press” is identifying who counts as a journalist. Over the past few decades, changes in digital technology have dramatically lowered barriers to entry for those who gather and publish information or provide commentary.Footnote ¹ One news scoop might appear in The New York Times while the next might come from the proverbial blogger in pajamas who is breaking news from bed. As we learned when a teenager in Minneapolis recorded the police murder of George Floyd in 2020,Footnote ² images recorded by ordinary citizens and posted on social media can spark reform and even catalyze a social movement.

If these changes in who reports news and how it is disseminated mean that everyone is “the press,”Footnote ³ or at least that it is impossible to identify today who counts as “the press,” then any system of press exceptionalism that grants professional journalists special access or privileges is doomed to fail as potentially unconstitutional for being arbitrary or discriminatory.Footnote ⁴

In fact, despite two decades of pajama-wearing bloggers and even with billions of TikTok, X, Facebook, Instagram, and other social media users regularly posting audio, video, photos, and text, government entities continue to generally have little trouble differentiating between professional journalists – those who regularly gather, report, and disseminate information to the public – and others. Government entities regularly identify members of the press. They do so in order to grant them special access to court proceedings, emergency scenes such as fires or riots, the White House, and government briefings; to give them a special “shield” against testifying in court or turning over evidence about conversations with others gathered in the process of reporting; and to grant them exceptions from other rules applicable to others, such as the usual disclosure and other campaign finance rules that apply to those who disseminate candidate speech in cooperation with candidates.

These special press privileges are rarely subject to successful litigation, at least so far as is evident through reported court cases. And they tend to protect professional journalists, as they are the ones most often and likely fulfilling the core functions of the press in educating the public and checking the government for excess, corruption, and incompetence.Footnote ⁵

The biggest problem today for this type of “press exceptionalism” is not distinguishing between those who occasionally make or report news and those who do it as a profession. Government entities seem more than competent to draw those distinctions in ways that the courts have permitted. Instead, it is figuring out how to deal with those who are professional faux journalists: They act as though they are following journalistic standards and reporting the news, but they regularly and intentionally distribute false information for profit or political reasons or both. The question of how to treat sources like the website The Gateway Pundit that produce “real ‘fake news’” – “fabricated stories designed to achieve particular ends, whether of political strategy or financial gain or both,”Footnote ⁶ – threatens the continued vitality of press exceptionalism.

This chapter examines how government entities determine who is a journalist to allocate resources under conditions of scarcity and ensure that the press can conduct their functions without undue government regulation and interference. Using a new data set of 172 laws, rules, and procedures that different government entities have used to define the press, Section 17.1 describes the most common tests government entities employ to identify journalists and compares them to each other. Although the definitions and tests differ in their particulars – and some rules simply say they apply to “journalists,” “news media,” or similar such terms without further definition – most of the definitions appear aimed at identifying the class of professionals who regularly gather, report, and disseminate news.

Section 17.2 describes the relatively rare reported litigation around these press-defining rules, teasing out the potential dangers of relying on particular definitions of journalists. Much of the litigation easily distinguishes between professional and nonprofessional journalists, and a few cases 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, Section 17.2 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.

Section 17.3 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. Entities should produce a set of written rules that are easily accessible and fairly applied. Second, most press exceptionalism should be limited to professional journalists who regularly produce news stories or commentary. It should not apply to the occasional blogger or poster on social media who is not regularly gathering, reporting, and disseminating news. Third, applicability of press exceptionalism should not turn on the type of technology, such as the use of digital technology, used to disseminate content. Fourth, and most controversially, government entities should continue to have the power to grant press exceptionalism to “bona fide correspondents of repute in their profession”Footnote ⁷ (a standard incorporated into some government press policies) so long as they do not engage in viewpoint discrimination. The key here is to exclude those who violate basic journalism norms by having no track record of consistently gathering, reporting, and disseminating truthful information or with a track record of consistently and intentionally reporting and disseminating empirically verifiable false claims as true.

The normative standards I suggest are consistent with the reasons for press exceptionalism: The press plays socially important functions in providing citizens, voters, and others with valuable information and checking the power of government. Rules should assure preferential access for professional journalists, regardless of the medium in which they work, who are most likely to fulfill these functions, without giving a government entity the opportunity for viewpoint discrimination among the class of professional journalists. The most difficult questions concern how to deal with faux journalists without slipping into viewpoint discrimination.

17.1 The Principles and Practices of Government Press Definitions

17.2 Litigation over Government Press Exceptionalism

Litigation over who is entitled to press exceptionalism is relatively rare. Of the 172 rules in the database, 136 did not lead to reported decisions over who is entitled to exercise the exemption.Footnote ⁴⁶ This section considers the cases that have led to reported decisions and concludes that they are generally unremarkable and involved people or entities who either are not professionals or are journalists who were excluded from certain press privileges for not meeting certain objective criteria. The exception is the recent case of TGP Communications, LLC v. Sellers, which involved The Gateway Pundit, a far-right outlet known for spreading disinformation. This case raised difficult questions about the line between determining bona fide journalist qualifications and impermissible viewpoint discrimination.

17.3 How Government Entities Should Define the Press in Light of First Amendment Values for Press Exceptionalism

In this final section of the chapter, I turn from describing and analyzing how government entities actually determine who is the press for purposes of press exceptionalism to the question of how they should do so. In setting forth four principles, I am guided by the normative view that press exceptionalism benefits the public when it facilitates the press function of providing the public regularly with valuable information and serving as a check on government overreach, corruption, or unconstitutional action. (Following Sonja West, I believe that First Amendment protection for freedom of speech, properly understood, should provide great protection for those not able to take advantage of press exceptionalism who occasionally engage in newsgathering, reporting, and disseminating information.Footnote ⁸²)

First, consistent with the Dunleavy case,Footnote ⁸³ government entities should articulate explicit and meaningful standards for enforcing press exceptionalism. The entity should publish a set of written rules that are easily accessible and fairly applied. Without such standards, arbitrary government action becomes too likely. Lack of written standards can also create the appearance of favoritism even if unwritten rules are being applied consistently. As the D.C. Circuit held in a 1977 case, the White House’s “failure to articulate and publish an explicit and meaningful standard governing denial of White House press passes for security reasons, and to afford procedural protections to those denied passes, violates the First and Fifth Amendments.”Footnote ⁸⁴

Second, most press exceptionalism should be limited to professional journalists who regularly produce news stories or commentary. Especially under conditions of scarcity, those who are most likely to regularly provide the public with reliable information and serve as a check on the government should be the ones with the greatest access and freedom from otherwise applicable government regulation. Professionalism does not require that the person is necessarily paid by a news organization, although that is strong evidence of working in the journalism profession. The key is the regularity of gathering, reporting, and disseminating information. Such a standard protects student journalists working with university-affiliated media, for example. It does not, however, cover bloggers or social media posters who only on rare occasions make or break news or who rarely provide news analysis or commentary.

Third, the question of applicability of a rule of press exceptionalism should not turn on the type of technology used to disseminate journalism. Today, even many long-standing respected local newspapers publish most or all of their news digitally, and many, to save costs, have eliminated print editions. There is no reason to believe that content published via new technology should be subject to different standards than content produced for newspapers, magazines, radio, or television.

Digital media did not exist when government officials crafted many of the press exceptionalism rules in my database. Some government entities have read language broadly – such as reading the term “newspaper” to encompass new forms of news media. When possible as a matter of statutory interpretation, this type of broad reading of rules benefits society. When such interpretation is not fairly possible, legislatures or government entities should revise or rewrite the rules to account for changes in technology.

Saying that technology of dissemination should not be relevant to press exceptionalism is different from arguing that every blogger or poster on social media is entitled to press exceptionalism. In fact, the focus on professional journalism would mean that in the current moment, most bloggers and social media posters would not be entitled to such an exception. But professional journalists working in new media should be treated the same as professional journalists working in legacy media. NASA’s ban on all “bloggers,” for example (which it classifies incorrectly as a type of “social media”), should be changed. People who work as professional journalists should qualify, whether they write their professional journalism for a blog or another website or not.

Fourth, and most controversially and delicately, government entities, or journalistic societies given powers by government entities, should continue to have the power to identify the press by reference to a “bona fide correspondents of repute in their profession” standard, so long as they do not engage in viewpoint discrimination.

We should reject the nihilism of a post-truth world, insisting that we cannot distinguish between The New York Times and The Gateway Pundit and that there is no way of measuring objectivity in reporting. In contrast to the arguments of FIRE and others, there are empirically verifiable facts in the world, and entities purporting to be journalists that systematically deny those facts or regularly present empirically false claims as facts should not be considered journalists entitled to press exceptionalism. The best way to enforce such rules is by examining whether the entity claiming press privileges complies with journalistic practices, such as fact-checking, giving those written about a chance to respond, and not reporting empirically false facts as proven. These issues can be examined in a systematic way without inviting arbitrary government action.

The key is to avoid slipping into viewpoint discrimination, particularly if the viewpoints expressed by the person seeking press exceptionalism are controversial. Someone who proves employment as a professional journalist should be denied press privileges only if the person seeking press status has no track record of consistently gathering, reporting, and disseminating truthful information, or if the person has a track record of consistently reporting and disseminating empirically verifiable false claims as true. This standard takes away most discretion on the part of government entities, giving them something specific and empirically verifiable to focus on, and such a decision may be meaningfully reviewed by courts.

This standard unavoidably puts government bodies in the position of deciding whether those purporting to be journalists are regularly peddling lies rather than the truth, and this no doubt presents some dangers.Footnote ⁸⁵ What would stop a deceptive government entity from declaring real professional journalists to be faux journalists peddling fake news? Here, we must rely upon the courts to look over the shoulder of those government officials to ensure that the inquiry is not a pretext for viewpoint discrimination.

Judicial review appeared to work in the TGP Communications case. Maricopa County should not have relied on the fact that Conradson “expresse[d] his opinion” in his articles or that he used “inflammatory and/or accusatory language, such as ‘Fake News Media,’ ‘globalist elitist establishment,’ and ‘highly flawed 2022 Primary Elections’”Footnote ⁸⁶ to deny press access. These criteria indeed appear aimed at discriminating against the journalist and his publication for his viewpoint. These criteria do not point to whether Conradson was gathering and reporting true facts, regardless of his political spin or ideology.

But if the county could have demonstrated that Conradson showed no track record of consistently gathering, reporting, and disseminating truthful information, or if he had had a consistent track record of reporting and disseminating empirically verifiable false claims as true, then the county reasonably could have denied him press privileges without violating the First Amendment.Footnote ⁸⁷

This line between determining a journalist’s bona fides and engaging in viewpoint discrimination requires a careful look at the record of the person seeking the press exemption, and doubtful cases should be resolved in favor of press exceptionalism.Footnote ⁸⁸ But there are cases where press privileges could and should be properly denied when a full-time professional faux journalist is not engaged in the act of journalism, and government entities should be allowed to say so in appropriate cases and act on this conclusion. Denial of press privileges to faux journalists furthers the reasons for having press exceptionalism in the first place.

Finally, it is worth recognizing the potential political backlash that may come from allowing government entities to exclude faux journalists from press exceptionalism. The Gateway Pundit, for example, has consistently spread false statements, such as about rigged or stolen elections, favored by right-wing populists. A decision to exclude The Gateway Pundit from observing Maricopa County’s ballot-counting process, particularly when election denialists were falsely claiming that such counting was “rigged,” likely would be seen by some as viewpoint discrimination even if the exclusion was based solely upon the website’s failure to adhere to basic journalistic practices.

To mitigate this risk, government entities, as noted above, should resolve close cases in favor of press exceptionalism. A partisan press is becoming increasingly the norm again in American journalism,Footnote ⁸⁹ and government entities should be careful not to confuse the question of the political views of a journalist (or the journalist’s employer) with whether a person posing as a journalist is actually a journalist. Journalists and entities can hold and write from whatever point of view they like without risking the benefits of press exceptionalism. What people claiming to be journalists cannot do if they want the benefits of press exceptionalism is consistently present empirically verifiable false statements as true or consistently deny the truth of empirically verifiable true statements. In the end, how government entities handle this difficult question could reflect not only on the legitimacy of journalism but on the legitimacy of government and US democracy as well.

In October of 2012, something momentous happened in the clash between the law of privacy and the law of press: Gawker, a website that specialized in sensational news often involving celebrities – one that promoted itself as making “today’s gossip … tomorrow’s news” – published professional wrestler Hulk Hogan’s sex tape without his permission.

It was momentous because the not-safe-for-work post illustrates how difficult it can be to define news, how the meaning of “the press” has changed in an internet age, and how legal protections for traditional newsgatherers can be imperiled if the words “news” and “press” are stretched too broadly to include all truth and all publishers. Those matters are the focus of this chapter.

The two-minute-long, black-and-white, grainy Hogan sex tape was not at all Hollywood-esque; it showed HoganFootnote ¹ completely nude, very much engaged in explicit sexual activity with a woman on a bed in someone else’s house, handling himself in a way that indicated that he was quite unaware that he was being filmed (not that that would matter). Gawker headlined its scoop: “Even For a Minute, Watching Hulk Hogan Have Sex in a Canopy Bed Is Not Safe For Work, But Watch It Anyway.” Millions did.

Within days, Hulk Hogan’s lawyers announced that they would sue Gawker on behalf of their client and would stake their claim on the “basic concept” of “invasion of privacy.”Footnote ² Publishing another’s explicit sexual activity, the attorneys said, “cannot be tolerated by a civil society.”Footnote ³

Gawker’s lawyers came out swinging in response: “Tabloid journalism in America is protected under the newsworthy standard every day,” they argued, and they maintained that the tape had real news value.Footnote ⁴ Gawker’s journalists even more vehemently argued that the First Amendment protected their decision to publish, that the Constitution unambiguously “afford[ed] [them] the right to publish true things about public figures,” and that any other legal decision would be “risible and contemptuous of centuries of First Amendment jurisprudence.”Footnote ⁵

I had heard about the sex tape very early on because a student had sent me a link to Gawker’s original not-safe-for-work post. The student’s sharing wasn’t salacious; it was academic. I had been predicting in my media-related law classes for years that a gossip-type website would someday publish a sex tape featuring a celebrity and would suggest that the tape had news value protected by the Constitution. It had finally happened.

A brief bit of background is in order here. I became a law professor at the dawn of the internet age after an initial career in journalism. For nearly a decade, both before and during law school (and at some points after), I worked in journalism, mainly as a television news anchor, reporter, and producer in Toledo, Ohio; Salisbury, Maryland; Charlottesville, Virginia; Harrisburg, Pennsylvania; and Detroit, Michigan. I learned much in those newsrooms and television stations about the craft of journalism and about the ethics, principles, and gut feelings that stopped journalists from publishing many things that most people would consider deeply private. I recall learning from police precisely how a public figure had died, for example, which involved sexual information that would have mortified his family; I of course did not include such detail in news stories about his death. The fact that we had video of newsworthy tragedies like car accidents and plane crashes made such ethics decisions all the more routine and often easy because what we had on tape was so troubling. Our newsroom rule was that there would be no gruesome images of people and no death images. When Pennsylvania’s state treasurer died by suicide at a press conference, I played a key role in our newsroom decision to freeze the video at the moment that he pulled the gun from his briefcase, even though our cameras had captured everything that transpired that tragic day. We would at times unintentionally capture video of embarrassing things, such as a clothing malfunction on a windy day or a person who fell on the street, and those videos were off limits too.

Many newsrooms like mine had their own ethics codes that guided such news decisions. The main one that journalists across the United States followed and continue to follow was drafted by the Society of Professional Journalists. “Only an overriding public need can justify intrusion into anyone’s privacy,” the SPJ Code read. It told reporters to “[a]void pandering to lurid curiosity” too.

That’s why, when I joined the permanent faculty at the University of Illinois College of Media and its College of Law, I jumped at the chance to teach journalism ethics and I chose privacy as the main focus for my scholarship. I was particularly interested in the conflict between privacy and the freedom to publish truth. I knew my own sensibilities, I knew journalism’s ethics provisions, and I was intrigued when judges opined on the newsworthiness of journalistic decisions, at times deferring to publishers even in surprising situations.

That was in the early 2000s, and it soon became clear that the democratization of the internet and the ease of publishing had changed things. Suddenly, ethics-abiding gatekeepers of information like the journalists I had worked with for years – those commonly deferred to by judges – were not the norm. Suddenly, anyone could assess the public interest in anything (or not) and instantly publish whatever they believed would satisfy it, including the graphic or embarrassing visuals and information that would have never made it to any one of our newscasts.

That, then, is the background inspiration for my two decades of scholarship. I’ve written, for example, about the strikingly critical description of journalism in the famous law review article, titled The Right to Privacy, published in 1890 by Samuel Warren and Louis Brandeis, and argued that sensationalistic coverage both of Warren’s family and his friend Grover Cleveland (a president with a scandalous past) had been the main spark for the piece.Footnote ⁶ I wrote in the California Law Review about a shift in court decisions in favor of privacy and against press freedoms, comparing journalism’s ethics provisions with what at the time was far more permissive law.Footnote ⁷

My first media-focused book, The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press, explored the press-privacy clash even more deeply.Footnote ⁸ And my most recent book, Seek and Hide: The Tangled History of the Right to Privacy,Footnote ⁹ named by The New York Times as one of the 100 Notable Books for 2022, looked at the press-privacy clash over time, all the way back to the earliest days when Massachusetts was a colony and shut down a newspaper in part for reporting that the King of France was having an affair with his daughter-in-law. So, back in 2012, when that former student sent me a link to the Hulk Hogan sex tape, I instantly recognized the constitutional clash – and I also suspected that Hulk Hogan would ultimately win.

18.1 A Brief History of Privacy and News

When Gawker journalists argued in the wake of Hulk Hogan’s invasion-of-privacy lawsuit that a legal decision in favor of Hulk Hogan would be “risible and contemptuous of centuries of First Amendment jurisprudence,” they weren’t exactly right. From the very beginning of the United States, even before the First Amendment was ratified, there was recognition – sometimes troubling recognition – that not all bits of truthful information had equal news value. Back then, what we might today call invasion of privacy was known in part as “truthful libel,” called that because, judges and other thought leaders said, truthful information could be more harmful at times to a person’s reputation and emotions than falsity. Blackstone’s Commentaries on the Laws of England had supported that idea to some extent, suggesting that, despite the essentiality of freedom of the press, those who published things that were “improper, mischievous, or illegal,” including non-justifiable information about extramarital affairs, it was suggested, “must take the consequence of [their] own temerity.”Footnote ¹⁰

At least some of the Founders seemed to agree. Consider the discussion about the boundaries of press freedom between William Cushing and John Adams, who were particularly concerned that the Constitution might protect newspapers that reported on what they called politicians’ “instances of male conduct” – their extramarital immoral behavior. Cushing, who would later become a justice on the U.S. Supreme Court, suggested that the person should be protected in such instances, not the publisher. “My question is this,” Cushing’s letter to Adams read, “[W]hether it is consistent with [the First Amendment], to deem & adjudge any publications of the press, punishable as libels, that may arraign the conduct of persons in office, charging them with instances of male conduct repugnant to the duty of their offices & to the public good & Safety; – when such charges are supportable by the truth of fact?”Footnote ¹¹ “Doubtless,” he added, the liberty of the press “may & ought to be restrainable” in some of those cases.Footnote ¹²

Adams agreed. “You may easily conceive a Case, when a Scandalous Truth may be told of a Man, without any honest motive, and merely from malice,”Footnote ¹³ he replied to Cushing. “[I]n Such a Case, Morality and religion would forbid a Man from doing Mischief merely from Malevolence, and I thought that Law would give damages.”

Thereafter, a court in New Orleans in 1811 sided with a man who’d written a love letter and against a newspaper that had threatened to publish it.Footnote ¹⁴ Whatever press freedoms existed in the publication of the letter, the court explained, paled in comparison to the plaintiff’s privacy interests, and it repeatedly condemned the publisher who would share such truthful information. Any constitutional promise of a free press, it said, would not protect the publisher of personal secrets:

A little more than a century later, the first Restatement on Torts protected privacy in a similar way. “A person who unreasonably and seriously interferes with another’s interest in not having his affairs known to others,” the provision read in 1939, was liable for what was called “Interference with Privacy.”Footnote ¹⁵ Such protection for privacy included seemingly newsworthy situations; those Restatement authors would have held a newspaper liable for publishing a photograph taken in public of a “hideously deformed” person harmed at birth by inexpert medical care, even when that photograph accompanied an article about the need for better medical care for newborns.Footnote ¹⁶

Forty years later, when the American Law Institute published the Second Restatement on Torts, it included a parallel provision titled Publicity Given to Private Life.Footnote ¹⁷ “One who gives publicity to a matter concerning the private life of another,” the provision read, “is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.” As for what would be both highly offensive and not of legitimate concern, the Restatement authors suggested that “[s]exual relations … are normally entirely private matters” and that “even the actress … is entitled to keep to herself … such intimate details of her life.”Footnote ¹⁸

But the American Law Institute added an important note to this new publication-related privacy tort:

That warning note made sense for several reasons. Once journalism turned away from scandal and started to abide by ethics standards more generallyFootnote ²⁰ (a shift that occurred mainly in the 1920s and 1930s), court decisions increasingly deferred to journalism’s news judgment in many cases that involved claimed invasion of privacy, sometimes even in a constitutional sense. The Supreme Court wrote in Gertz v. Robert Welch, Inc., a 1974 defamation case concerning the assessment of matters of general public interest, for example, that it doubted the wisdom of committing such an assessment task to judges.Footnote ²¹ In another case that same year, the justices worried even more strongly about judicial interference with the news judgment of journalists, suggesting that “government regulation of this crucial process” was inconsistent “with First Amendment guarantees.”Footnote ²² And then, in 1975, in Cox Broadcasting v. Cohn,Footnote ²³ the Court held that a television station that had broadcast the name of a deceased rape victim would not be liable for a privacy invasion despite her grieving father’s emotional pain and a state statute that allowed punishment for such a publication. It seemed that much, if not all, truthful information, even emotionally harmful information, would be protected.

The already deferential lower courts generally followed suit. Four years after Cox Broadcasting, in 1979, the Iowa Supreme Court held that “[i]n determining whether an item is newsworthy, courts cannot impose their own views about what should interest the community.”Footnote ²⁴ Judges, the court added, “do not have license to sit as censors.”Footnote ²⁵ Federal courts suggested the same: “[J]udges, acting with the benefit of hindsight,” the First Circuit wrote in 1989, should not assess journalistic news judgment aggressively, because “[e]xuberant judicial blue-penciling after-the-fact would blunt the quills of even the most honorable journalists.”Footnote ²⁶

But shortly thereafter, in the mid-to-late 1990s, the internet exploded in a very real way. Rather suddenly, it was not at all clear which publishers qualified as journalists and what truthful publications qualified as journalism. If there were indeed honorable journalists whose sharp quills needed judicial defenders and if indeed the law protected a journalistic judgment of newsworthiness, what about the bloggers and the social media posters and the others who created websites filled with a reality that wreaked emotional harm? Would those assessors of information of public interest and publishers of truth be protected too?

By 2007, the answer, at least in many places, appeared to be no. “Ethical standards regarding the acceptability of certain discourse have been lowered,” the Ohio Supreme Court wrote in a case that recognized for the very first time in the state the privacy tort of false light, even though the justices had rejected it in the past as being too similar to defamation.Footnote ²⁷ “[A]s the ability to do harm has grown,” those justices wrote, referring to the internet, “so must the law’s ability to protect the innocent.”Footnote ²⁸

That same sort of shift seemed to be happening at the United States Supreme Court too.

18.2 Bartnicki v. Vopper and Hulk Hogan

In 2001, eleven years before Gawker published the Hulk Hogan sex tape, the Supreme Court decided Bartnicki v. Vopper.Footnote ²⁹ The decision was an important one for media; the justices had found that a radio station would not be liable for publishing a cellphone conversation that had been surreptitiously recorded by an unknown person and had been given to the radio station by someone who did not work there. On the tape, an official who represented the local teachers’ union had suggested that violence might be used against school board officials in order to influence a labor dispute. The Supreme Court held that such a discussion was in itself a matter of public concern. Even though the revelation of the wiretapped conversation violated federal law, the justices reasoned, the later broadcast of that recording was not unlawful because the First Amendment protected the station’s decision to publish such “unquestionably” newsworthy information. “[S]tate action to punish the publication of truthful information seldom can satisfy constitutional standards,” the Court wrote, quoting its own language from 1979’s Smith v. Daily Mail Publishing.Footnote ³⁰

There were three wrinkles in Bartnicki, however, and each suggested that, like the lower courts, the Supreme Court might also be shifting away from broad protection for publishers – a shift springing in part from willy-nilly publication decisions.

The first wrinkle was that the Bartnicki decision did not sweep broadly. The radio station had not been involved in the surreptitious recording of the information itself; it had been given the tape by a person unaffiliated with the station and, therefore, was innocent of any wrongdoing. There remained a “still-open question,” the Court wrote, and that was “whether, in cases where information has been acquired unlawfully by a newspaper or by a source, government may ever punish not only the unlawful acquisition, but the ensuing publication as well.”Footnote ³¹ (Later decisions, including those from federal appellate courts,Footnote ³² have indeed held publishers liable for information that they obtained unlawfully, although the issue remains open at the Supreme Court.)

The second wrinkle was that the word “seldom” in the Daily Mail Publishing quote – that “state action to punish the publication of truthful information seldom can satisfy constitutional standards” – seemed an important limitation in Bartnicki. In other words, the Bartnicki Court could have chosen language that was more sweepingly protective of news, for example, by declaring that state action to punish the publication of truthful information can never satisfy constitutional standards. But it did not. Instead, the justices in the Bartnicki majority wrote that the outcome could well be different in cases involving different facts, such as those in which there had been the revelation of non-newsworthy “domestic gossip or other information of purely private concern.”Footnote ³³ Moreover, the justices in Bartnicki noted that the Court had, over time and in the sorts of decisions that included Cox Broadcasting,Footnote ³⁴ repeatedly refused “to answer categorically whether truthful publication may ever be punished consistent with the First Amendment.”Footnote ³⁵ Quoting Florida Star v. B.J.F.,Footnote ³⁶ the Court wrote that “the future may bring scenarios which counsels our not resolving anticipatorily” this “ultimate question,” because of the “sensitivity and significance of the interests presented between [the] First Amendment and privacy rights.”Footnote ³⁷

The third wrinkle appeared in Bartnicki’s concurring and dissenting opinions. Justices Breyer and O’Connor in concurrence suggested that the Constitution tolerated certain privacy-protective laws because of the right of privacy’s importance and called it an “interest[] of the highest order.”Footnote ³⁸ They suggested too that even public figures retained some rights to “private communication,” especially in an age involving “challenges” that “technology may pose to the individual’s interest in basic personal privacy.”Footnote ³⁹ And then they listed as among “truly private matters,” what they called “sexual relations” between two public figures that had been recorded.Footnote ⁴⁰ In other words, a celebrity sex tape.

Three justices dissented in Bartnicki; they would have ruled against the radio station’s claimed First Amendment interests. They too were worried about the “significant privacy concerns” arising from technological advances that allowed others to access personal communications. “Even where the communications involve public figures,”Footnote ⁴¹ Justices Rehnquist, Scalia, and Thomas wrote, the conversations are nonetheless private and worthy of protection. That third wrinkle, therefore, means that in 2001 at least five of the justices on the Supreme Court would surely have sided with Hulk Hogan and against Gawker’s publication of the sex tape featuring him.

It also suggests that Bartnicki, although a 6-3 decision in favor of media, was ultimately a 5-4 decision against it – a decision against media’s own discretion to determine newsworthiness in situations that involve personal privacy. Just as Bartnicki itself suggested, this had been hinted at in a more nuanced reading of those earlier seemingly pro-publication decisions, including the word “seldom” in Daily Mail Publishing. “[T]here is a zone of privacy surrounding every individual,” the Court had written in Cox Broadcasting v. Cohn, for example, “a zone within which the State may protect him from intrusion by the press, with all its attendant publicity.”Footnote ⁴² And in Florida Star, the justices had written: “We do not hold that truthful publication is automatically constitutionally protected, or that there is no zone of personal privacy within which the State may protect the individual from intrusion by the press, or even that a State may never punish publication of the name of a victim of a sexual offense”Footnote ⁴³ because there is “sensitivity and significance” in privacy interests that are just as profound as those inherent in press interests.

In other words, if anything, centuries of jurisprudence seemed to tip Hulk Hogan’s way.

18.3 The Legacy of Gawker’s Publication of Hulk Hogan’s Sex Tape

The pretrial litigation over Hulk Hogan’s sex tape was contentious. Gawker argued that the First Amendment protected its right to publish the tape as news, while Hogan claimed the explicitness of the tape violated his privacy. Although two preliminary court decisions found that any restriction on publishing the tape would be an unconstitutional prior restraint,Footnote ⁴⁴ neither of these opinions addressed the graphic nature of the nudity and sexual intercourse. In fact, it was not clear whether the judges had even seen the video excerpts that Gawker published. In 2016, the case proceeded to a Florida jury.

At trial, jurors heard the Gawker reporter who wrote the post admit that there was no news value in the graphic nudity shown in the tape,Footnote ⁴⁵ and thereafter they decided that Gawker should pay Hogan $140 million, an astonishing amount that ultimately drove Gawker to bankruptcy. The case settled for $31 million, but even that sum was large enough to create quite a stir in the plaintiffs’ bar. The Washington Post suggested that there was a new disorder, which it called “Hulk Hogan Syndrome” that was suddenly afflicting plaintiffs who’d been wronged by media, leading to these plaintiffs and their attorneys “winning big.”Footnote ⁴⁶ The headline theorized that such verdicts might well reflect hostility toward more modern publishers.

Since then, various courts have decided other cases in ways suggesting that Hulk Hogan Syndrome is real and that judges also might have it. Put another way, modern court decisions show that judges are both worried about privacy interests and fed up with the breadth of the newsworthiness defense – and, in turn, they have pivoted to positions that disfavor publishers. In 2022, for example, the federal district court for Oregon decided that a famous author’s stepdaughter had a valid claim against her stepfather’s biographer who had described in rather graphic terms the sexual abuse she had suffered at the hands of her birth father.Footnote ⁴⁷ The Supreme Court of Indiana in 2023 decided that a patient’s diagnosis and prescribed treatment were private information; the publisher had mistakenly received the information meant for another and had posted it to Facebook.Footnote ⁴⁸ And, in 2023, a federal district court in Indiana held that Netflix producers who had shared on social media the identities of people conceived by a prolific sperm donor as part of a promotional campaign for a documentary could be liable for invasion of privacy.Footnote ⁴⁹

But, notably, in each of those examples – just as in the Hulk Hogan case – it is not clear whether any of those publishers should be considered journalists or whether those truthful publications should be considered journalism. It’s possible to argue that such labels are appropriate in each, of course: that the biographer and the Facebook poster and the Netflix producers were all journalists and that each bit of truth that they published was news. But looking at those decisions from the ethics provisions that often inform journalists’ decisions regarding what is appropriately published and what isn’t – what newsworthiness means in a journalistic sense – the labels “journalist” and “news” are not at all clear. Many journalists, I would think, would say these decisions to publish were utterly inappropriate given the facts. And these, in part, are the reasons that judges who once deferred to the judgments of publishers of truth are less likely to do so today. Perhaps the greatest worry in all of this is that such decisions can now affect what might be considered “real” journalists, those in legacy journalism who might well decide after sincere newsroom introspection that a more graphic description of sexual abuse on different facts was appropriate to a news story, or that an individual’s medical diagnosis was newsworthy, or that the precise names of people involved in something that had news value was an important part of the story. It is not going too far to suggest here that journalists like those who worked and continue to work in my old newsrooms can be chilled by such outcomes that involve people who published truth under very different standards.

This modern pushback against the broad invocation of newsworthiness in privacy cases can help inform discussions about who or what qualifies as press for constitutional purposes too. If law has created deferential carveouts for journalism over the years on the assumption that the journalistic entities would be operating within professional ethics strictures that decided questions of newsworthiness in a way that balanced important social norms and interests, what happens to those carveouts when those assumptions are no longer true? And how might this backlash against the actions of fringe actors who are eager to justify their behaviors as newsworthy lead to scalebacks that remove constitutionally valuable protections from those who are actually performing the press function?

It seems clear that a more sacrosanct approach to terms like “press” and “news” would ultimately benefit the whole – that more exclusive definitions would help protect the publishers that matter most. Privacy’s history teaches that lesson. And a $140-million-dollar jury verdict is surely a very big lesson too.

In journalism education, the First Amendment’s guarantee of press freedom is typically taught as a cornerstone of American democracy. Yet this approach too often fails to grapple with the historical and ongoing realities of racial inequality and the experiences of marginalized communities, particularly Black Americans, in relation to press freedom. The traditional emphasis on teaching journalists to be strictly “objective” often leads the press to report in ways that perpetuate the status quo and fail to hold those in power accountable.

The prevailing standards in journalism education, moreover, tend to give educators conflicting directives. Taken at face value, these standards seem to encourage journalism educators to teach the First Amendment as a neutral principle that protects press freedom and encourages journalists to strive for objectivity and balance in their reporting. However, the standards also tell educators to emphasize the profession’s multicultural history and to promote communication that empowers and centers the voices of marginalized communities – an approach that might require journalists to take a more active stance on issues of social justice. Recent debates over “journalistic objectivity” on issues of Black protest, editorial witnessing, and journalistic authority during the Movement for Black Lives have illustrated how these principles can clash with each other in newsrooms.

In this chapter, I argue for a critical reexamination of how the First Amendment and press freedom are taught in journalism classrooms. I draw on historical analysis, legal case studies, and contemporary examples to advocate for a “reparative journalism” approach. By centering the voices and experiences of those who have been systematically excluded from the full protections of the First Amendment and by interrogating the complex relationship between race, power, and the press, this approach seeks to develop a more inclusive, historically grounded, and forward-looking vision of journalism’s role in society. Ultimately, this chapter contends that reckoning with the racial dynamics of press freedom is essential, not only for journalism education but also for the practice of journalism itself, as a means of fulfilling its democratic purpose and holding power to account.

19.1 What Is Reparative Journalism?

Scholars have extensively written about and debated the merits of reparations in a number of countries and contexts. Coates’ 2014 essay, “The Case for Reparations,” brought the conversation out of scholarly and legislative domains and planted it more firmly into public discourse. Decades of reports on the topic have attempted to quantify the impact of stolen wages and physical and psychological assaults on Black families, but most attempts to map the complicity of systems that have normalized Black subjugation focus on the obvious players of education, government, labor, law, medicine, and property ownership.Footnote ² Media, particularly the news media, binds all of these together. As we read and listen to news reports, we develop a sense of our shared social reality, an understanding of who we are and how the world works. So influential is the news media that the founders of the Black press in the United States used their very first editorial in 1827 to condemn other publishers for their role in positioning Black people as deviant and irredeemable.Footnote ³ More than 150 years later, the Kerner Commission, tasked with identifying the cause of race riots in inner cities throughout the country, also implicated the news media for its failure to present a full and accurate picture of what Black life was like and warned that should our social systems continue down the same path, we would move toward “two Americas, one Black and one White, separate and unequal.”Footnote ⁴ The compounding moral debt that Coates spoke of has quietly accumulated in journalism and journalism education as well. In the years before, during, and after World War II, the practice moved from one of vocation to occupation, professionalized through the creation of post-secondary degree programs that were generally exclusive to white males. The country’s oldest journalism program, the University of Missouri, repeatedly denied Lucile Bluford, a Black woman, entry to its graduate program.Footnote ⁵ The school went so far as to temporarily shutter the program (ostensibly because of the demands on students and faculty being called to serve in World War II) and to create a separate program at Lincoln University in order to maintain segregation.Footnote ⁶

From antebellum days to the Civil Rights Movement and beyond, newspaper publishers used their platforms to fix Black people as subhuman in the American imagination. Pre-Emancipation-era papers bankrolled themselves by selling slave ads.Footnote ⁷ Outlets such as the Raleigh News & Observer and the Wilmington Morning Star incited race riots to silence the Black press.Footnote ⁸ News editors refused to hire and promote Black staffers, only reluctantly moving to do so after being publicly shamed by the Association of Newspaper Editors in the 1970s. Until 2019, the Associated Press Stylebook, considered the “Journalist’s Bible,” lacked guidance on identifying and naming racism and racists.Footnote ⁹ The addition of the entry was prompted by the largest racial justice movement in American history.Footnote ¹⁰ If there is an American institution thought to contribute to democratic ideals while directly denying Black people and other marginalized folks equal treatment, it is journalism. If there is an American institution in need of a commitment to reparative work with Black communities, it is journalism. For the purpose of this chapter, I focus on Pablo de Greiff’s articulationFootnote ¹¹ of three goals that define the concepts of reparations: recognition of harms, restoration of civic trust, and the development of social solidarity. Reparative journalism education must first admit how and where our pedagogies and practices have contributed to harm. It must focus on strategies for restoring civic trust by identifying places where we have caused this segment of the public to rightfully doubt our commitment to equity. And we must use the classroom as a space to model a nonexclusive understanding of how journalists and members of the public outside of the newsroom must share in a right to free expression as a means of building solidarity.

As a point of disambiguation, note that the concept of reparative journalism should not be conflated with media reparations, the economic program advanced by policy coalition Media 2070.Footnote ¹² Reparative journalism is a complement and refers to a set of educational and vocational values, norms, and practices iteratively applied to address the wounds from prior eras while building a responsible apparatus for the social construction of news in the twenty-first century. The framework demands recognition of the foundational flaws in the construction of American social systems, with a central focus on the impact of anti-Black racial hierarchy as reflected in the adoption of chattel slavery, the imposition of Jim Crow and segregation, and the retrenchment of white supremacy as normative in contemporary culture. Thus, this chapter sets forth the operationalization of a particular educational practice: teaching the First Amendment in the twenty-first century with a commitment to recognizing how and where it intersects with anti-Black racism.

The organizing principle of reparative journalism is that social institutions that shape the construction of reality in the United States must directly confront how the legacy of slavery has shaped the institution’s norms, customs, and values and resituate its practices by centering the perspectives of the vulnerable. In practice, this means acknowledging the presence and influence of racial discrimination in journalism. For instance, our contemporary news media workforce, which has for decades struggled to attract, retain, and promote non-white journalists, is characterized by the exclusion of Black students in journalism schools (and, more broadly, most institutions of higher learning) during the period in which the journalism evolved from a vocation to a profession.Footnote ¹³

I articulated its core commitments in 2020:

• Reparative journalism must be visionary, rather than reactionary.

• Reparative journalism must be grounded in the history of the ignored.

• Reparative journalism must be critically intentional.

• Reparative journalism must be comprehensive.

• Reparative journalism requires alternative funding and production models.

• Reparative journalism requires the redistribution of power.

• Reparative journalism will require an unfathomable commitment of time – more than any of us may have in this life.Footnote ¹⁴

If news media creators – from student journalists working in campus media to veterans working on investigative stories and features – were to adhere to these commitments, it would shift news narratives from their focus on political and social elites and move the plight of marginalized people into the center. A vision of reparative journalism is one that covers the political economy of poverty from the perspective of those who live it rather than the policymakers who decide how their lives unfold. The framework requires that such reporting be grounded in history. Thus, it would begin by working backward through the federal, state, and local reforms and customs that have created nearly intractable inequalities in our society.

The Accrediting Council for Education in Journalism and Mass Communication (ACEJMC), formed in 1945, is the largest accrediting body for journalism programs in the United States. To date, 120 programs have some level of accreditation through the organization.Footnote ¹⁵ Although ACEJMC does not prescribe particular curriculum or pedagogical approaches, it sets forth several criteria for evaluating the rigor of programs. The first three criteria are stated here as a clear articulation of a schema for understanding why critical examination and reinterpretation of the First Amendment are necessary for contemporary journalism education. Alongside eight other core competencies, graduates of ACEJMC programs should have the ability to:

• apply the principles and laws of freedom of speech and press, in a global context, and for the country in which the institution that invites ACEJMC is located;

• demonstrate an understanding of the multicultural history and role of professionals and institutions in shaping communications;

• demonstrate culturally proficient communication that empowers those traditionally disenfranchised in society, especially as grounded in race, ethnicity, gender, sexual orientation, and ability, domestically and globally, across communication and media contexts.Footnote ¹⁶

A purposive search and brief review of syllabi from media law, media ethics, and related courses that satisfy the First Amendment criteria from ACEJMC-accredited schools reflects a pattern in the literature assigned and modules taught about the First Amendment, including the Speech and Press Clauses. A journalism law and ethics class at a mid-size public university in the Northeast is described as “a foundation course in personal freedom and professional protection” that will equip students to “understand the foundation for freedom of expression” and link judicial values to “the work of mass media professionals and the free expression of citizens.”Footnote ¹⁷ Another course from a large public university in the Southeast “analyzes media policies and practices with respect to their political and practical generation, Constitutional foundation, ethical enactment and social impact, including such topics as government regulation of the media, the influence of pressure groups, media influence, and libel and privacy laws.”Footnote ¹⁸ A third course, Media Law and Ethics, at a large private university on the West Coast vows “students will learn about their legal rights and obligations” and that the course will teach them “how to publish information without violating defamation and invasion of privacy, how to gather information to avoid legal and/or ethical trouble and how to deal with subpoenas …” with a goal of “keep[ing] you and your employer out of trouble.”Footnote ¹⁹ The common theme among the syllabi is clear: The First Amendment is being taught as a tangible license of rights and responsibility with an emphasis on market risks and demands. The descriptions rest on key assumptions about the First Amendment and its application: that this law confers legible power to the journalism profession and extends an egalitarian privilege to the masses; that all enjoy these privileges equally; and, foundationally, that the intention of the law was entered into the historical ledger under an expression of collective sentiment. That is, that commitment to pluralist democracy, as articulated in the preamble to the Constitution, was developed from a place of altruism and justice for all.

Nothing could be further from the truth.

In the examples that follow, I encourage educators to teach about the abolitionist press as the first real challenge of the First Amendment and to connect the threat of abolition in the pre-Civil War era to contemporary threats to First Amendment freedoms. I then use the foundational New York Times Co. v. Sullivan case to illustrate how traditional journalism education erases critical insight into how First Amendment law was weaponized in attempts to silence Black liberation workers. I close with a brief provocation of how contemporary conceptions of who is a journalist, and thus protected by the First Amendment, have implications for anyone who bears witness to civil rights violations and publishes them in the social media age.

19.2 Press Freedom, Abolitionism, and the First Reconstruction

Reparative journalism education must first acknowledge the potential for harm in our failure to critically interrogate the development and application of the First Amendment in a historical context. Students of the First Amendment must first develop a basic understanding that the rights guaranteed by the Constitution did not legally apply to anyone other than white men until the ratification of the Thirteenth, Fourteenth, Fifteenth, and later the Nineteenth Amendments. Some courses addressing the First Amendment note that its robust protections for speech were not fully established by the Supreme Court until the mid-twentieth century, as the Court gradually came to recognize the importance of protecting dissenting views, including those of Communists and antiwar activists.

Thus, a consideration of the dire, dangerous conditions in which early Black publishers worked would further enrich students’ understanding of the complicated history of the incomplete protections of the First Amendment. Periodicals including Freedom’s Journal, The Colored American, The North Star, and The People’s Advocate risked physical safety and economic ruin to provide Black communities with news and information in the service of racial uplift as a means of uplifting a nation and the nation.Footnote ²⁰ Abolitionist allies such as Elijah Lovejoy – who was eventually martyred for the cause – were run out of town, their presses repeatedly destroyed.Footnote ²¹ Black writers, like David Walker, were subject to bounties for violating Black codes by encouraging the formerly enslaved to fight for their freedoms.Footnote ²² The early existence of the Black press highlighted tensions between the existence of the First Amendment and its practical accessibility for non-whites.

William M. Carter Jr.’s work on the First Amendment and the ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments – the Second Founding – offers a framework ripe for exploration by historians, journalism scholars, and journalism educators committed to researching and teaching critical perspectives on press freedom.Footnote ²³ As Carter writes, the question of the abolitionist press presented one of the earliest tests of the nation’s commitment to free speech and press freedom in the pre-Civil War era:

Revisiting and focusing on press freedom and the Second Founding as part of our pedagogy on the First Amendment would require students to engage with centuries-old assumptions about institutional and personal freedoms and rights that have proven ephemeral in recent years. Recent Supreme Court decisions have radically changed the scope of various constitutional rights that were long thought inviolable.Footnote ²⁵ How should our understanding of press freedom, and its defense, change in an era when it is no longer inconceivable that a court may rescind rights without warning? How secure is our ongoing ability to access the full promise of the First Amendment, especially when current legal challenges threaten to plunge us back into states’ rights doctrines? What might a more judicially limited grant of press freedom mean for the publication of journalism that is out of favor with the ruling class, including journalism that is community-run or self-published? How might all of this change how students conceive of the role of the journalist in the future?

A classroom discussion on these questions might draw upon the tradition of Cone’s Black Liberation Theology, where one’s “heart, mind, body, and soul are where the dispossessed are.”Footnote ²⁶ Students might be invited to see how the journalist shares a sense of precarity with Black people in America: the ever-present threat of dispossession. This commonality is a point of invitation to consider the First Amendment from the vantage point of Black journalists and, more specifically, Black people in America. This sense of positionality moves our consideration beyond mere acceptance of the First Amendment and requires an interrogation of its development and application, including how it is taught.

19.3 New York Times Co. v. Sullivan: The First Amendment and the Second Reconstruction

No course on media law, media ethics, or the First Amendment is complete without a mention of New York Times Co. v. Sullivan, the Supreme Court case that clarified the watchdog function of the press.Footnote ²⁷ Most who have taken a course about free expression could probably recall with little effort that the case sets forth a high bar for holding publishers liable for defamation and perhaps even define what “actual malice” is without having to look it up. They might even be able to recall that Birmingham Police Commissioner L. B. Sullivan sued the paper over an ad, claiming the text portrayed him in an unflattering light. But what often goes unmentioned in the journalism classroom is the racialized nature of the case.

Beneath the text of “Heed Their Rising Voices,” the advertisement placed by the Committee to Defend Martin Luther King and the Struggle for Freedom in the South in The New York Times on March 29, 1960, were the names of activists, celebrities, and clergy members seeking moral and financial support for Committee to Defend Martin Luther King and the Struggle for Freedom in the South.Footnote ²⁸ The Revs. Ralph Abernathy, Joseph Lowery, Solomon S. Seay, and Fred L. Shuttlesworth’s names were listed among the signatories of the statement, although the ministers testified in court that they were added by Bayard Rustin without their knowledge or consent.Footnote ²⁹

Sullivan sued The Times and the ministers and was initially granted a $500,000 judgment (about $5.25 million in 2024 dollars).Footnote ³⁰ The lawsuit was part of a repertoire of suppressive actions designed to curb the reach of communications that shed light on the struggles for integration in the South. At the time, news organizations, including The Times, faced civil suits that numbered in the millions of dollars, as powerful segregationists and their allies attempted to leverage market forces to silence the national press coverage by bankrupting them.Footnote ³¹ But if the target were simply the news outlets themselves, why name four ministers?

Scholars Samantha BarbasFootnote ³² and Aimee EdmondsonFootnote ³³ have both written extensively about the racial and socioeconomic implications of the Sullivan case for the four Alabama ministers who were named as co-defendants with The Times but whose experiences are often lost to history. Resituating Sullivan from a reparative journalism standpoint requires educators to consider the impact of the case and its outcomes on the most vulnerable individuals and groups involved. While the libel suit brought against The Times was part of a larger strategy designed to bankrupt news organizations in the North, their corporate structures delayed and shielded them from economic and social harms in ways that left individuals unprotected. As Barbas writes, by 1964, national news organizations were confronting more than $288 million in damages from libel suits brought by segregationists.Footnote ³⁴ But in between Sullivan’s initial decision in an Alabama courtroom and the Supreme Court ruling, The Times’ co-defendants’ personal property was seized as an outcome of being convicted of libel.Footnote ³⁵

The ministers’ inclusion was both a matter of legal maneuvering – necessary to keep the lawsuit in Alabama’s jurisdiction – and an indication of how the law can be weaponized to suppress the speech of marginalized Others. Considering Sullivan through this lens is not only valuable for offering a more complete history of the case’s circumstances and significance in the Civil Rights era but also for studying the parallels between that moment and the present political era.

A reparative approach to teaching media law prompts us to map various modes and loci of power in Sullivan. Jennifer Brandel explains multiple considerations for power-mapping exercises.Footnote ³⁶ We might consider historical and contemporary forms of power: the channels, flow, and means of justifying power, and classic definitions of hard or soft power – that is, the binary of force versus enticement. “What if every news story, no matter the form, helped people understand the foundational and systemic structures that are keeping things as is, creating conflict, or enabling new power to flow and, therefore, create new realities?” Brandel asks.Footnote ³⁷ Reparative journalism encourages an expansion of the question such that racial hierarchies and the practices of domination that enforce them are considered part of this power analysis. Thus, teaching on the case would encourage students to abandon so-called color-blind thinking and consider why Sullivan named not only The New York Times as the injurious party in the lawsuit but also four other Alabamans known to be at the forefront of the antisegregation movement.Footnote ³⁸ A recognition of power beyond the scope of the free press in this case would prepare students to anticipate strategies of domination that use the law and other levers of control to compound oppression. Ideally, this lens would encourage news workers to investigate similar contemporary legal, statutory, and executive actions for what they are – a means of fixing historically marginalized and comparatively subjugated peoples to new forms of oppression and control.

Discussing Sullivan in this context also invites consideration of the protections and resources available to the corporate press that do not extend to the individual, a useful framework for thinking about current debates over who qualifies as a journalist and what infrastructure must be in place for them to enjoy press protections. These questions should direct our attention to news workers and publishers who do not enjoy the protections of permanent employment with a corporate news organization. We might consider how press freedom differs for a media startup versus a legacy publication or for a staff writer versus a freelancer. What short- and long-term material risks do individuals outside of traditional news media structures face when they engage in advocacy as part of their First Amendment rights? Each of the ministers’ vehicles was seized and sold by the state of Alabama, with the intention of not only causing financial hardship but also creating obstacles to their participation in racial justice work.Footnote ³⁹ Ultimately, Shuttlesworth and Lowery would leave the state of Alabama and pursue their work elsewhere.Footnote ⁴⁰

A power analysis of the motivations, techniques, and function of social values and institutions involved in the Sullivan case will help underscore that the decision to bring the suit was not simply a matter of Sullivan attempting to defend his reputation but an attempt by segregationists and sympathizers to intimidate civil rights activists into silence by wounding or chilling the press. Threats to press freedom often emerge first as threats to the most vulnerable in society. Thus, the implications of the case have enduring relevance for those who struggle against authoritarian regimes, be they informed by racism, nationalism, theism, or other organizing themes.

19.4 The Complex Relationship between Journalism and Social Change

Mainstream journalists and publishers often position press freedom, and the act of engaging in journalism, as vital to democracy and portray the press as part of the vanguard of movements for social change. In this telling, journalists work tirelessly to fulfill two proverbial goals: to “give voice to the voiceless” and to “speak truth to power.”Footnote ⁴¹

A reparative journalism approach to teaching about press freedom would critically examine this depiction of the press, its work, and its successes. Again, a consideration of the history of race and journalism in the United States would provide a useful frame. Scholars have shown that only within the last two decades have news organizations begun to seriously examine and acknowledge their amplification of narratives that fixed Black people at the bottom of the country’s racial hierarchy.Footnote ⁴² The fantasy of being “a voice for the voiceless” extends to the position journalists imagined they have taken with respect to freedoms for those included in aforementioned groups as well.Footnote ⁴³ But as John Nerone noted in an essay about journalism’s hegemonic crisis, news workers reshaped their collective orientation to the ideal of racial equality only after political elites began to understand and respond to its implications for the future of electoral politics.

In order to propel our students toward a reparative journalism consideration of the First Amendment, we must consider the enduring impact of racial subjugation within the country’s institutions, including the Fourth Estate. We must also interrogate how effectively journalists have historically “spoken truth to power,” as opposed to supporting existing systems, as Nerone noted.

The concept of “fearless speech,” introduced by Mary Anne Franks, provides a framework for the latter discussion.Footnote ⁴⁵ In a 2018 essay, Franks draws upon Michel Foucault’s articulation of the Greek concept of parrhesia, or fearless speech, and his argument that it emphasizes candor, mortal risk, and a commitment to the social duty of truth-telling above all that might be gained from engaging in more flattering or complementary speech. Contemporarily, fearless speech is that which refuses to exchange the ability to win favor and influence others (which seems to be the currency of the twenty-first century) for the responsibility of upholding unflinching truths. We may, perhaps, find examples of fearless speech in difficult spaces, such as confronting the realities of surveillance, war, and genocide in Gaza. We may also find examples of fearless speech in journalism, but asking students to consider the response of institutions – including media organizations – to the fearless speech of individual journalists offers a fruitful path for discussion.

The contestation over journalistic works such as Nikole Hannah Jones’ reporting on the re-segregation of US public schools via school choice, charter schools, and redistricting policies is an example of fearless journalistic speech that confronts structural oppression.Footnote ⁴⁶ The 1619 Project, an in-depth narrative exploration of the indelible effect of chattel slavery on multiple American institutions, might similarly be deemed an example of fearless speech.Footnote ⁴⁷ The project, designed to contest hegemonic and unchallenged narratives about American history, was met with censorial response by lawmakers at the federal and state levels. In July 2020, Senator Tom Cotton (R-Ark.) filed S.4292, the “Saving American History Act,” during the 116th Congressional Session, which would have expressly prohibited elementary and secondary schools from teaching the project’s curriculum under threat of withdrawn federal funding.Footnote ⁴⁸ The bill’s text was echoed in bills introduced in Arkansas, Iowa, and Mississippi in 2021.Footnote ⁴⁹ Had Cotton’s bill passed and been signed into law, schools would have been forced to consider the cost of engaging with the curriculum, as the restrictions demanded that no school that taught 1619 content receive federal funding for professional development.Footnote ⁵⁰ Additionally, the bill would have required that the secretaries of agriculture, education, and health and human services create a formula to prorate decreased federal funding for any school that implemented the curriculum.Footnote ⁵¹ These measures could arguably have had a “chilling effect” on the speech of teachers, students, and support staff, pushing them to err on the side of caution and reject the curriculum outright rather than risk the loss of a school’s federal funding.Footnote ⁵² According to the National Center for Education Statistics, US public school districts received anywhere from 5 percent to 20 percent of their annual revenue from federal sources as of 2021.Footnote ⁵³

In keeping with a reparative journalism framework, educators would also consider the political and social context of threats against fearless speech, such as the proposed bans on the 1619 Project curriculum. Each of these measures was introduced during a period in which federal and state governments were considering legislation to ban teaching antiracism and critical race theory (CRT).Footnote ⁵⁴ The CRT Forward Project, housed at UCLA Law School’s Critical Race Studies Center, tracked more than 560 government-related measures of this sort.Footnote ⁵⁵ The documents range from carefully worded executive orders, including one signed by President Trump in September 2020 that outlawed the teaching of “divisive concepts”Footnote ⁵⁶ on race and gender; to state-level legislation, such as the Stop WOKE ActFootnote ⁵⁷ signed into law by Florida Governor Ron DeSantis in April 2022; to district policies, such as the Temecula Valley Unified School District’s anti-CRT resolution approved in December 2022.Footnote ⁵⁸

Considering the rules and guidelines that are applied within institutions to manage media employees provides another useful starting point for a discussion of the meaning of fearless speech in journalism. Such examples include the perennial conflicts around student journalism, including administrative budget cuts that restrict funding and ultimately impact the ability of student journalists to do their work.Footnote ⁵⁹ In 2018, for instance, the student government association at Wichita State University cut the student newspaper’s budget by two-thirds following reporting on the university administration’s business affairs.Footnote ⁶⁰ Similar cuts were aimed specifically at student journalists’ salaries in 2007 when the student legislature slashed The Missouri Miner’s budget at the University of Missouri at Rolla.Footnote ⁶¹ The Student Press Law Center has designated such actions as Red Flags, highlighting the ways in which budget cuts may amount to censorship if undertaken disproportionately and in response to coverage.Footnote ⁶²

The reactive media codes of conduct that police and silence journalists are another point of entry for operationalizing fearless speech. On matters of journalism ethics and public critique of issues, educators could point to the examples of The New York Times writers Jazmine Hughes and Jaime Keiles, who were forced to resign after signing a protest letter about Palestinian genocide in Gaza.Footnote ⁶³ Arguments, of course, will be made about the appropriateness of allocating university funding to support student media or about requiring journalists to adhere to an organization’s code of conduct, but both serve the same function: They are disciplinary measures that manufacture the illusion of the journalists’ consent to self-censor under penalty of material expulsion from the organization. Certainly, journalists who wish to engage in conduct that counters the cultural demands of an organization, be it a university’s journalism program or a corporate newsroom, are free to do their work elsewhere. But the inability to “stand on business” while maintaining one’s professional standing and having equal access to resources exposes the charade of free speech as we’ve conceived it vis-à-vis the First Amendment.

A discussion of fearless journalistic speech might also ask students to critically examine the different levels of protection enjoyed by the press as opposed to “citizen journalists,” even in cases where the First Amendment rights are theoretically the same. This discussion might invite students to consider the different levels of risk incurred by those engaging in fearless speech. For example, the right to record police activity in public spaces has been widely recognized by courts as a right shared by everyone, not only the press. And in the past decade, two incidents of police brutality that sparked nationwide protests and debate were initially recorded and shared not by professional journalists but by individuals recording on their smartphones: Ramsey Orta, who filmed the NYPD officers who put Eric Garner in a stranglehold that killed him, and Darnella Frazier, whose recording of George Floyd’s police murder sparked some of the largest protests ever seen in the United States. In both cases, their First Amendment right to record the incident was clearly protected by law. But in both cases, the resulting attention upended their lives, made them fear for their safety, and made them potential targets for retaliation by police.Footnote ⁶⁴ (Classroom instructors might also consider linking these examples back to the Sullivan case and its consequences for the four Alabaman civil rights activists named as defendants.)

19.5 Conclusion

The interpersonal domain of oppression prompts us to consider how we teach journalists to conceive of themselves and their roles in the field. The notion of a fearless speech orientation acknowledges warnings that the First Amendment rests on an ephemeral foundation. For if we were to reconceptualize our responsibilities as journalists from the perspective of those who, by their own expression, would benefit from having their messages amplified and, at times, clarified by our profession, we would move toward recognition that there are few truly voiceless individuals in our society and that the pursuit of broad press protections, rather than those limited to a specific professional class/designation, is in our collective best interest. It follows that people from structurally marginalized social positions are among those who need protection the most. The rest of society will undoubtedly benefit.

Knowledge institutions play a critical role in maintaining constitutional and democratic guardrails, encouraging the pursuit of reliable knowledge, providing the public with accurate information, and fostering informed debate about office-holders, candidates, and public policies. For this reason, authoritarian leaders often attack knowledge institutions (alongside other common targets like political opponents, and independent government bodies) in efforts to consolidate power, suppress dissenting voices, and control public narratives.Footnote ¹ Among the key, often-targeted knowledge institutions are a free truth-seeking press and independent universities.

Knowledge institutions are public and private entities that have a central purpose of pursuing knowledge – creating, disseminating, and preserving it.Footnote ² They include universities, libraries, museums, the press, government offices charged with collecting and reporting data, and independent research institutes. As organized entities with continuity over time, they pass on to new generations their cultures of knowledge-seeking and verification. Knowledge institutions and their active members seek to apply standards of a wide range of intellectual disciplines, differing across fields and institutions. They aspire to apply these standards autonomously, not to reach results tailored to satisfy government or business preferences, but with independence according to the professional norms of their field and institution.Footnote ³

As institutions, they offer protection to knowledge-related values that go beyond those secured by individual freedoms of expression. They do so for several reasons, described at length in my earlier work. First, such institutions help define, in ways no individual can, the best disciplinary tools and practices oriented to discovering or verifying knowledge. Second, institutions transmit cultures of knowledge-seeking across generations – again, in ways that individuals by themselves cannot. Third, institutions provide “focal points”Footnote ⁴ for organizing around the protection of those individual freedoms so essential to the free inquiry on which searches for better truths are founded. Fourth, institutions have legal and financial resources that can be deployed to help protect the knowledge-seeking efforts of their members. Finally, institutions, on the whole, have stronger functional and normative claims than individuals do to act with authority as intermediaries in an ocean of information and misinformation.

In recent years, however, the authority of the press and universities as knowledge institutions has increasingly come under scrutiny – and not just from rising populists. Critics are asking questions such as: Are these institutions genuinely devoted to producing and disseminating knowledge, or are they primarily focused on protecting and aggrandizing their own reputations or economic interests? Is the press overly fixated on sensationalism and short-term news coverage at the expense of deeper and more substantive reporting? Are universities too preoccupied with maintaining “politically correct” stances to be trusted to perform their knowledge-seeking roles and to maintain a free and open campus environment for all students? Can these knowledge institutions truly claim independence from the powerful forces that control so much of society? Are the ethical norms they espouse admirable or despicable? Are their ethical norms sufficiently adhered to in practice to warrant their continued recognition as guiding principles of the press and universities?

This chapter sketches some tentative responses to these questions. It considers how the press and universities are similar as knowledge institutions and how they differ. It explores the nature of journalistic and academic topics and judgments, their independence in the pursuit of knowledge, the time frames of their work, and their ethics. It aims to draw attention to how these two institutions use overlapping but not identical tools to develop shared knowledge and test knowledge claims, and how sustaining the independent competencies necessary towards this goal is challenged by rising polarization and mistrust and by diminishing public and private financial support. I close with some reflections on the relationships among knowledge institutions and why the interdependent infrastructure of knowledge institutions matters so much to constitutional democracy.

Constitutional democracies are not necessarily self-sustaining. They must safeguard the independence and integrity of elections, government structures, and knowledge institutions, including universities and the free press. Doing so requires honest assessment of their strengths and weaknesses, adequate funding for their central tasks, and appropriate degrees of institutional autonomy to preserve the reliability of their knowledge functions.

20.1 Professional Judgment in Pursuit of Genuine Knowledge

Constitutional democracies depend on knowledge to sustain their governments. Whether conceptualized as the need for competence,Footnote ⁵ expertise,Footnote ⁶ or effectiveness,Footnote ⁷ governments depend on the development of shared conceptions of reliable knowledge. Knowledge institutions, including academia and the press, play key roles in the development of this shared knowledge.Footnote ⁸

Ideally, both the institutional press and higher education institutions seek to protect the exercise of professional judgment by those who do knowledge work within them. For the press, the core knowledge work is done by journalists (including reporters and editors).Footnote ⁹ For academia, the core knowledge work is done by individual faculty members, sometimes alone, sometimes working with others, and subject to the more indirect and less collaborative constraints of peer review and evaluation.

For the press, a classic concept of the editorial process embraces the active involvement of editors as internal checks throughout the entire news production cycle. In serious press organs, the relationship between editors and reporters (and other kinds of journalists) is collaborative. It often begins with the selection of which stories to pursue, continues with discussions about when stories are sufficiently established by the facts, and ends with editing of the final article. Editors can be an integral part of the process of reporting a story at many junctures, reflecting a degree of joint venturing between reporters and editors as allies in the development and production of news stories.

The growth of new outlets for reporting through social media sites and blogs may pose a challenge to the continued viability of the model of editors who act as internal intermediaries checking what journalists write and reinforcing disciplinary norms of good investigative journalism.Footnote ¹⁰ Yet, the idea of internal checks remains an important aspect of contemporary journalism. The most respected newer journalism sites, such as ProPublica,Footnote ¹¹ as well as “legacy” organs, continue to rely on editors to protect the integrity of their journalistic process, though empirical work on the extent of this practice remains to be done.

In academia, such partnerships between editors and researchers in developing scholarly works are less common than in journalism. Editors of scholarly journals or books may sometimes – but need not – play a role similar to news editors in deciding what themes or subjects authors should pursue. Some invited scholarly collections or journal symposia, for example, are framed by the scholarly editors’ careful guidance on what topics different chapters should seek to cover. But many scholarly books are conceived entirely by their authors and are submitted to a publisher only after they are complete or well set on course. The checks of peer review are thus both less sustained and more independent than those of an editor in a journalistic institution working with reporters.Footnote ¹²

In contrast to journalism’s collaborative editorial process, academia relies on peer review in assessing quality both in granting tenure and, for journals, in deciding whether to accept articles for publication. Although the specific practices vary across disciplines, peer review is a key part of academia’s decisional processes.Footnote ¹³ The review process for publication in a peer-reviewed journal may be quite substantive and contribute materially to improving the published work. (Publication in peer-reviewed journals is important in many academic fields; a possible exception, however, is the field of law in the United States, where prestigious reviews are often edited by students, not peer-reviewed.) Publication-specific peer review is part of the academic process of knowledge production; it operates in a more arm’s-length manner than the process of editors checking journalists’ work.

While a faculty mentor may feel some sense of engagement with junior faculty, it would be unusual for that relationship to be seen by either party as the kind of alliance journalists often share with an editor. Faculty members may be able to obtain additional peer feedback and critique from workshopping their papers or sending them out for critical comment from colleagues, which can be an important and helpful part of the scholarly process. But the relationship is not that between an editor and a reporter. Other faculty members offering feedback (rather than as part of a peer review process) do not operate as gatekeepers to the publication of academic work in the same way a traditional news editor could be a gatekeeper to journalists’ work. However, some scholars do work in very large collaborative groups on work having many coauthors; this surely provides opportunities for review and checking, although it also raises predictable temptations for individual contributors to focus only on the aspects of the work to which they directly contributed, rather than on the entire project.

The comparisons between how the institutions of academia and journalism create knowledge raise a number of questions warranting further consideration. For example, does the insulation of much academic work, as compared to the ongoing (theoretical) relationship of reporters and editors, have any implications for their knowledge-producing roles? Or, is what matters the overall cluster of opportunities for checking and incentives for accurate work? Are there more such opportunities for checking and incentives for accuracy in academia, given its longer time frame for production and extended period during which critiques, modifications, and even retractions can occur? Or are there more such opportunities in journalism, where a wider readership may be quick to point out flaws or questions?Footnote ¹⁴ Alternatively, is what matters more the commitment of participants to truth-seeking modes of work? How significant is the presence of legal and practical protections for the independence of the overall process – in journalism, for reporting and editing, in academia, for researching, writing, teaching, and publishing of scholarship?

Both news media and academic journals have suffered embarrassing and very public failures of their truth-checking processes in recent years.Footnote ¹⁵ Academia has sought to develop measures to prevent systemic problems in reliability.Footnote ¹⁶ The declining numbers of journalists and immense financial pressures faced by news organizations of all sizes may inhibit devoting more resources to improving accuracy, yet some journalists, academics, and organizations engage in regular critiques of what they see as flawed journalism.Footnote ¹⁷ Ideological commitments may impair, or be seen to impair, an institution’s willingness to adhere to truth-seeking practices, including open inquiry.Footnote ¹⁸

These are human institutions, and failures at some levels are to be expected. These failures should be critiqued when they result from deviations from truth-seeking norms and corrected going forward. My point, for now, is that each type of institution employs distinctive mechanisms designed to sort good, accurate reporting from bad, unreliable reporting or good, reliable scholarship from bad, unreliable scholarship. Each knowledge institution has internal mechanisms designed both to reinforce the goal of accuracy at the outset and to provide checks when that goal is not met. At a time when both institutions face serious threats, attention to these mechanisms is of particular importance.

20.2 Independence and the Ideal of Objectivity in the Application of Professional Judgment

Biased precommitments are antithetical to the aspirations for objectivity, impartiality, or fairness associated with good scholarship and good journalistic reporting.Footnote ¹⁹ Even opinion journalism, which may be quite partisan or advocacy-oriented, should rely on a reasonable factual basis.Footnote ²⁰ The search for genuine knowledge must be conducted independently of commercial or governmental interests in predetermined answers.

For most reputable journalists and academics, their perceived and actual independence – including from powerful influences of friends, family, business, or government – is an important element of professional self-understanding.Footnote ²¹ Press and academic institutions deploy various methods, some overlapping, some distinctive, to protect that independence.

Some academics enjoy “tenure,” that is, a guarantee of their position absent extraordinary justification for removal. Tenure is believed to contribute to the desired independence of thinking, research, writing, and teaching. Yet increasingly, teaching loads at colleges and universities are filled by nontenure track faculty, many of whom are part-time workers with relatively little job security or bargaining power.Footnote ²² Many journalists likewise work without any institutional guarantees of tenure or even long-term contracts in an increasingly shrinking part of the economy. Even without tenure protections, though, other factors may help sustain commitments to journalistic independence. These include working as part of a team, collaborating with an editor, and operating in a journalistic culture that values independence and accuracy of reporting.

Job tenure is not the only source of independence. Ethical norms in academia also insist on intellectual independence and integrity. The first principle in the American Association of University Professors’s (AAUP) Statement of Professional Ethics provides that professors’ “primary responsibility … is to seek and to state the truth as they see it … [and] practice intellectual honesty,” while not allowing “subsidiary interests” to “seriously hamper or compromise their freedom of inquiry.”Footnote ²³ The ethos of objectivity or impartiality in professional judgment remains an important aspect of both academia and professional journalism, and it may be as dependent on institutional cultures as it is on structural protections of job security.Footnote ²⁴ Institutional cultures in academia and journalism nurture norms about what it means to value accuracy, knowledge, and independent judgment.

The New York Times’ Ethical Journalism handbook, for example, discusses several situations of apparent conflicts of interest that might threaten “the impartiality and neutrality of The Times and the integrity of its report.”Footnote ²⁵ It prohibits accepting “free or discounted lodging and transportation except where special circumstances give little or no choice” and includes a sample letter to return gifts, along with a policy forbidding acceptance of all but “trinkets of minor value.”Footnote ²⁶ The Times also forbids accepting “anything that could be construed as a payment for favorable coverage or as an inducement to alter or forgo unfavorable coverage.”Footnote ²⁷

Similarly motivated rules appear elsewhere in news organs and associations. The Guardian’s Editorial Code of Practice and Guidance requires news staff to disclose financial interests that might “create the impression of a conflict of interest,”Footnote ²⁸ prohibits journalists from holding public office,Footnote ²⁹ and substantially limits the receipt of “freebies.”Footnote ³⁰ The Global Charter of Ethics for Journalists likewise provides for the avoidance of conflicts of interests by journalists and asserts that the “right of the public to truth is the first duty of the journalist.”Footnote ³¹ (The contrast here with the alleged conduct of the tabloid National Enquirer in paying to “kill” a news story and keep it from the public is obvious.Footnote ³²)

Some traditional news media have reflected their concern for independence by separating the reporting divisions from the business divisions – a separation that has come under strain in recent years as the economic challenges for legacy news media have increased.Footnote ³³ For example, The New York Times forbids consultation between the news and business division, except when advertising needs are “directly related to the business of the news department;” the Times also limits and regulates (rather than prohibits) information exchange between the news and advertising departments.Footnote ³⁴ Such consultations can play a critical role in helping news media navigate great economic challenges and maintain enough financial viability to be able to report independently on the news.Footnote ³⁵ Yet if a particular story is shown to have been “pulled” or held back because of political or economic influence, it reflects badly on the press organ’s reputation.Footnote ³⁶

Academia faces similar concerns about conflicts, although it handles them differently. In the last decades of the twentieth century, commercial and governmental collaborations in university-based research increased substantially, creating heightened opportunities for conflicts of interest.Footnote ³⁷ Universities have developed policies and structures to help manage these new relationships, including technology transfer offices and offices of sponsored programs.Footnote ³⁸ These programs can involve policies that, in contrast to general academic norms of openness, permit researchers to withhold their findings, for example, to allow time for patenting. In some fields, individual faculty members may develop separate consulting businesses related to research work patented by the university, which complicates their roles as members of the academic community.Footnote ³⁹ In these respects, scholars may be much more financially involved with outside influences than are journalists.

Universities and press organizations increasingly adopt conflict of interest policies designed to prevent – or at least disclose – influences that might undermine the independence of professional judgment. At some news media companies, policies limit involvement between journalists and the subjects they are writing about, and editors may reassign reporters if involvements create the appearance of partiality.Footnote ⁴⁰ In academia, the scholar herself may be the primary judge of whether her work presents conflicts of interest.Footnote ⁴¹ And in some fields of research, such as anthropology, the role of participant observation as a research method is relatively well-established. While news media may tightly control what other entities their reporters can work for (for example, prohibiting freelance work for competitorsFootnote ⁴²), academics – especially in the sciences – frequently collaborate with faculty at other institutions. Competition among journalistic media is the norm; academia can be very competitive, but there are also major areas of collaborative work. Scholarly journals increasingly require a statement either disclaiming or disclosing potential conflicts of interest, and many universities have policies requiring disclosure of potential conflicts of interest.Footnote ⁴³ Disclosure is no panacea,Footnote ⁴⁴ but it is a recognition of the importance of upholding ethical norms of independent judgment.

Both journalists and academics may be influenced in their choice of research or writing topic by incentives from outside and within their institutions. In academia, the interests of leading journals, or the availability of grants, may influence scholars’ topics of inquiry. Some academics may choose topics regarded as easier to publish on, in the interest of obtaining tenure or other academic benefits. Grants are more likely to be available for novel findings (at least in some scientific fields), which may influence the incentives of the researcher – discouraging replication studies, for example, despite their importance for the continued verification of initial results. In law, there are “popular” topics in which student editors (who play an important role in the US scholarly legal literature) or even academic editors are deemed more likely to have an interest.

In the press, the increased conjoining of business with reporting concerns reflects the reality that the press (whether traditional legacy press or new blogs or websites that want to be viewed as impartial news sources) must attract sufficient audience share to sustain themselves. Publishers care, as they usually have, about net revenue; reporters care about how many followers they have on Twitter or Facebook. Thus, financial and popular incentives may influence reporters in what kinds of topics they pursue, as may the ideological commitments of their employer. (This raises the question of whether stronger norms of impartiality and independence exist in what is reported in a story than in the selection of what topics to pursue or report on.Footnote ⁴⁵)

While the ideal of independence is important, it is unsurprising that neither academic research nor news reporting, as human institutions in a world of finite resources and attention, are conducted based only on the abstract importance of the subject or the internal interests of the researcher. For the press, the combined, related pressures of current popular interest, the role of clickbait and unseen algorithms, and financial sustainability (which may favor what those who are advantaged in society are interested in) may play a larger day-to-day role on topic choice than in parts of academia. For academics, the rise of untenured faculty in the US may threaten both the time and the independence faculty have for research. Yet journalists and academics retain considerable freedom on what topics to write on. The aspiration for independence of judgment in what is reported or what is written remains an important distinguishing feature of both. A major challenge for years to come is how to sustain both forms of independence as they face pressures from economic change, political controversies, and unusually virulent attacks.

20.3 Time, Resources, and the Nature of Knowledge Development

The different time scales of journalism and academia influence the kind of topics and the depth of coverage that academic and journalistic work produce. Universities – major ones, at least – will provide a depth of knowledge-related resources in libraries, access to scholarly databases, scientific equipment, and the collective presence of scholarly experts in many fields. Press organizations are likely to be quite differently and perhaps more thinly resourced, but journalists may be able to more readily gain access to information from current officeholders than academics.

Daily or even weekly journalists report on sudden, unexpected eventsFootnote ⁴⁶ and look for “scoops” – that is, important newsworthy developments that have not been discovered or reported by others. This task is becoming more challenging given the widespread public sharing of breaking news on social media, including reporting by noninstitutional reporters. Professional journalists who develop networks of reliable information providers are still able to produce such scoops, especially in areas in which information is tightly controlled and not accessible to casual observers.Footnote ⁴⁷ Daily reporters, moreover, regularly work against very tight deadlines. Even feature reporters for newspapers and magazines may be working on deadlines related to the topicality of their subjects. Investigative journalists may work on a time frame of months pursuing a story in depth – but if they are associated with news media, typically not years, as many academics may spend on a single book or article.

Academics face different time pressures than do members of news media. As noted above, writing even a single good article for publication in an academic journal can take months or even years; academic books can take even longer. Moreover, most faculty in the United States also have teaching responsibilities; devoting time to good teaching means that most faculty usually cannot devote their work life exclusively to research.Footnote ⁴⁸ Untenured academics who are hoping for tenure face definite time pressures to produce published scholarship before tenure consideration; in systems with regular review of all faculty, pressures to show regular research publications continue throughout an academic career. Junior faculty and those outside the United States with competitively ranked systems based on regular review of faculty publications have serious incentives to frequently produce scholarship that is placed in well-rated journals.Footnote ⁴⁹

It continues to be the case that academic life allows more time for reading and reflection than most journalism positions do. Yet commentators have expressed concerns about the prioritizing of quantity over quality in articles in academia. Professors in highly competitive fields are facing increased pressure to produce more papers in shorter time periods, although this is not the same type of time pressure as is faced by journalists who work under daily deadlines. Academic time scales allow – or, in some cases, requireFootnote ⁵⁰ – more time for deep research, reflection, and multiple drafts in ways that journalism often does not. This gives rise to an expectation of fewer errors in academic work than in daily journalism. Nonetheless, although the time pressures differ, they exist in both fields.

The analytical tasks that can be expected of academic work and journalism also differ, though there are areas of overlap. Some areas of academic inquiry, such as in the physical sciences, are simply beyond the capacities of those who do not have a quality lab to work in. Some areas of academic inquiry are not sufficiently contemporary, or take too long to research, to be possible (or of interest) for journalists.

The press is better situated than academia to quickly produce daily or weekly reporting and in-depth investigations that are published close in time to the events being investigated. Unlike academics, press outlets typically do not have processes that can delay, sometimes by many months, even being able to start interviewing sources.Footnote ⁵¹ Yet the search for the popular (or sensational) does not always correspond with what is important to public well-being; commercial incentives may be at war with reporting that informs citizens about events relating to government policy. The topicality that news media see – reporting on current developments in government in regulation, in politics, and in events and trends affecting people’s daily lives – is wide, but under these pressures, still limited.

In contrast, the choice of topics for academic research in universities is quite broad and not constrained by subjects of current topical interest. Classicists pore over ancient texts in languages no longer spoken; archeologists explore understandings of peoples and societies’ lives from the past; historians pursue improved understandings of different periods of history of different peoples and countries around the world; physicists seek to improve understanding of the smallest particles in the universe and the largest distances between objects in the universe; biologists and chemists work to improve understandings of processes of physical change. Scholars can pursue research into more lasting forms of knowledge than journalists, deepening or challenging existing understandings in philosophy, history, literature, and art, or testing the continued validity of scientific beliefs or mathematical propositions and developing new ones. Sometimes these avenues of research yield interesting perspectives on current topics, but often they do not, yet they contribute to the development of valuable human knowledge by engaging with the world and existing understandings in an epistemically open and (hopefully) rigorous way.

In areas of overlapping interests, which may arise in fields of social sciences, scholars may be better – in part because they have more time – at developing and testing theoretical explanations for phenomena, periodizing large amounts of historical data, and more generally identifying patterns across time and societies. Journalism, on the other hand, is superior to most academic work in its currency, which can provide raw material for historians and other academics by offering a daily diffusion of new information on contemporary life, government, elections, candidates for and incumbents in public office, emerging problems, conflicts, and trends. Journalism also continues to provide a forum for curated public discussion through letters to the editor and opinion pieces, a feature not so available with respect to academic work. Occasionally, journalism has also risen to provide astonishingly deep levels of research requiring immense collaboration in the acquisition and presentation of data, as exemplified by The New York Times’ daily charts on the COVID pandemic.Footnote ⁵²

The time constraints and substantive work of journalists and academics share some characteristics but also differ in important ways. Do journalists chase stories that have little long-term value but appeal to currently popular obsessions? Do academics pursue topics of interest only to a small number of other academics, or, alternatively, write in “safe” or “politically correct” well-ploughed veins? Yes, all of these occur, as well as more concerning conduct.

Yet, both academics and journalists regularly produce highly valuable reports, discoveries, and analyses, which may inform the public of major problems with government or business (often being concealed by those who benefit from them) or offer the kind of medical discoveries that have extended life spans dramatically. History suggests that only free and open fields of inquiry – that will inevitably include some low-value or mistaken research and reporting – will produce these and other such valuable results. Increased awareness of these benefits, increased attention to the resources needed to sustain knowledge institutions, and constructive critique to help institutions improve their own work will benefit both knowledge institutions and the constitutional democracies to which they are so important.

20.4 Ethical Constraints Supported by Professional or Related Organizations

Books about universities tout these organizations’ importance to advances in science, cross-cultural knowledge, competitiveness (in business and more generally), amelioration of poverty, and government policy or public administration.Footnote ⁵³ Some also emphasize their contributions to democracy more generally and to social equality.Footnote ⁵⁴ Books about the press tout its importance to civic knowledge, communication among readers, “watchdogging” those in positions of (private or public) power, and holding them to account.Footnote ⁵⁵ Yet these books do not as often claim that the press facilitates effective government or business competitiveness, even though some of the origins of the European press in newsletters concerning commercially valuable information plainly existed to serve business interestsFootnote ⁵⁶ and even though there is a long linkage between the press and government functions (and a link between local “news deserts” and corruption).Footnote ⁵⁷ Notably, writers do not call on the press to develop innovations that enable better business practice or governance, while they do assign this task to universities. The ethos of the press as independent and as reporting on rather than “making” the news would resist such instrumentalization. Consequently, a quite different ethos animates academia and journalism.

Despite this and other differences, both journalism and academia have commitments to pursuing genuine knowledge, and both have developed ethical principles, which may be reinforced by standards of conduct adopted by specific institutions (that is, specific newspapers or universities). The ethical standards of both entities include an emphasis on transparency, accuracy, and truth-seeking. I have discussed the ethical, truth-seeking, and information-verification norms of the press in earlier writing.Footnote ⁵⁸ Below I discuss academic ethics.

The AAUP Statement on Professional Ethics asserts, as a basic obligation of faculty: “Their primary responsibility to their subject is to seek and to state the truth as they see it … They accept the obligation to exercise critical self-discipline and judgment in using, extending and transmitting knowledge. They practice intellectual honesty.”Footnote ⁵⁹ In succeeding paragraphs, the statement addresses obligations to students, colleagues, the institution, and their community.Footnote ⁶⁰

Discrete disciplinary associations of faculty across universities often reflect on the ethics of scholarship in their fields. For example, the publishing arm of the American Institute of Physics sets technical precepts for authors, including the expectation that “results of research should be recorded and maintained in a form that allows analysis and review, both by collaborators before publication and by other scientists for a reasonable period after publication.”Footnote ⁶¹ The Institute also establishes norms, including that “fabrication of data is an egregious departure from the expected norms of scientific conduct, as is the selective reporting of data with the intent to mislead or deceive, as well as the theft of data or research results from others.”Footnote ⁶² Similarly, in the humanities, the American Historical Association says that while historians have much they disagree on, they all agree on some precepts: “All historians believe in honoring the integrity of the historical record. They do not fabricate evidence. Forgery and fraud violate the most basic foundations on which historians construct their interpretations of the past.”Footnote ⁶³

Some ethical norms differ between journalists and academics. Journalists typically name their sources, and they generally contend that the sources a reporter relies on for a story should only be kept confidential in special circumstances. In contrast, social scientists who do survey research are expected to take measures to maintain the confidentiality of their survey respondents. For both reporters and academics, the obligation to protect the confidentiality of a source once a promise of confidentiality has been given may raise conflicting moral and legal obligations.Footnote ⁶⁴ On occasion, journalists have gone to jail rather than comply with a subpoena and reveal an anonymous source without the source’s consent. Some condemn those journalists for obstructing justice, while others hail them as heroes. Most US states provide some protection for journalists from forced disclosure of confidential sources. Although similar protection for academics is less well established, they have sought it on similar grounds and on occasion been successful.Footnote ⁶⁵ As many state journalist-shield laws recognize, sometimes confidentiality assurances are the only way to verify and get an important story of government or private malfeasance out to the public.

The aggressive critique that follows public disclosure of departures from ethical standards suggests the continued relevance of these norms in both journalism and academia. There are too many such departures. But they attract controversy and critique – through which norms of honest, truth-oriented work can be upheld.

20.5 Knowledge Institutions’ Interdependence and Constitutional Democracy

The shared aspiration of journalism and academia to honesty and to “extending … knowledge”Footnote ⁶⁶ is reflected in their intellectual interdependence. In earlier work, I have provided examples of how the press, universities, and government offices that collect and provide data draw from one another’s work and are, in a sense, parts of an interdependent epistemic infrastructure; the press may play an important role in circulating new ideas from academia.Footnote ⁶⁷ However, the interdependence of knowledge institutions goes beyond these kinds of instances of direct utilization by one kind of institution of the work of another. Historically, increases in education and literacy helped promote press readership.Footnote ⁶⁸ More generally, knowledge institutions can play a role of supporting overarching values that benefit society and government in constitutional democracies – of “truth, science, morality and arts in general,” as the Continental Congress proclaimed about the role of the press in 1774,Footnote ⁶⁹ and the ideals of disciplined truth-seeking searches for better knowledge.

These overarching values include a commitment to rationality in decision-making. This commitment, in turn, requires that people have skills of critical inquiry and understanding, including skills in evaluating evidence that bears on important public questions. These values also include the importance of public knowledge of government – not just knowledge of what the institutions are but understanding of how government actually works – appreciating the need for trade-offs in desired ends, for example, or developing an ability to distinguish abuses of power from ordinary disagreements. For these tasks, President Washington and many other US presidents thought a national university was required.Footnote ⁷⁰ The national universities that exist today, created through more decentralized mechanisms, continue to be urged to consider whether they are providing the education that participants in our constitutional democracy need.Footnote ⁷¹

From the earliest days, the press has been viewed as playing a central role in serving as a watchdog that could criticize government officials, providing a forum for letters and opinions from a range of readers, and promoting public knowledge of government. A postal subsidy for newspapers was provided in the 1792 Act establishing the postal service.Footnote ⁷² Even earlier, in September 1789, the very first Congress mandated the secretary of state to receive all enacted laws and to assure their publication in “at least three public newspapers.”Footnote ⁷³

Finally, these knowledge institutions and others together help promote the idea that the truth, or truths, or better understandings of the world, are worth pursuing. Without the idea that there is knowledge – that at any given time, there are better (more accurate) and worse (less accurate) understandings of facts and trends, physical and social processes and causes; and that study, reason, and consideration of evidence can help arrive at ever better understandings – it is almost impossible to find a shared epistemic space for democratic self-governance. There are also necessarily uncertainties in the real pursuit of knowledge, which both universities and journalists can help us understand. But trying to have a democracy without some shared basis for establishing what is, at least contingently, accepted as usable knowledge is almost impossible to imagine.

Whether the press or universities will retain their current institutional and economic forms is a serious question.Footnote ⁷⁴ The press, in particular, has undergone a dramatic economic and professional shift over the last two decades; governments in recent years have “disinvested” in public universities; and public trust in both news media and universities has declined markedly.Footnote ⁷⁵ But the functions these institutions serve – of attempting honestly and accurately to report on daily events and attempting honestly and accurately to understand the human and natural world in all its manifestations – are essential to good societies. In helping to hold governments accountable, they are of particular importance to constitutional democracies, where decisions by an informed citizenry are at the theoretical foundation of the legitimacy of the state.

For many years, press freedom advocates have seen law enforcement as a threat to journalism’s autonomy and independence. But the nature of that threat is changing. In the past, press freedom concerns typically centered on the risk that law enforcement might compel or coerce journalists to become unwilling participants in prosecutions and investigations of third parties. Statutory, constitutional, and regulatory interventions have been developed in response to stave off that possibility. Yet those protections, while still meaningful, do not address the potential criminal liability that reporters face in gathering and reporting the news. Today, the prospect of journalists facing arrest and prosecution is not as far-fetched as it might once have seemed.

Consider a few representative incidents. In December 2017, prosecutors charged citizen journalist Priscilla Villarreal with violating Texas’ prohibition on “misuse of official information” after she got a tip from a Laredo police officer.Footnote ¹ In March 2019, San Francisco police searched freelance journalist Bryan Carmody’s home and office, confiscating his devices, as they investigated who had leaked information about the sudden death of Public Defender Jeff Adachi.Footnote ² In December 2021, sheriff’s deputies arrested citizen journalist Justin Pulliam as he recorded a mental health check outside Houston.Footnote ³ In August 2023, police raided the newsroom and the home of the publisher of the Marion County Record, a local newspaper that was investigating a business owner’s application for a liquor license.Footnote ⁴

There are two competing ways of seeing these kinds of episodes. In the first vision, these kinds of occurrences are affronts to press freedom and show that press-specific legal protections are necessary to blunt law enforcement’s ability to target and harass the media. Faced with the question of how best to protect journalism and a free press, many scholars have zeroed in on what is sometimes called “press exceptionalism,” calling for special protections for the press against generally applicable laws. Special protections constitute “targeted statutory and constitutional protection of the press functions.”Footnote ⁵ A basic premise of press exceptionalism is that, although the press faces particular challenges in exercising its constitutional rights, it is treated the same as an ordinary individual or business.Footnote ⁶

In the second vision, these incidents are disturbing examples of widespread dysfunction in law enforcement. Broad and vague laws are commonplace, overcriminalization runs rampant, and law enforcement enjoys substantial discretion in how to investigate, deter, and prevent crime.Footnote ⁷ Although the press may have particular complaints about these dynamics, these are not problems unique to the press. Perhaps these incidents underscore the unique and disproportionate effects of criminal charges and investigations on the press. But they also illustrate the fundamental inability of distinctive legal protections to shield the media from law enforcement activity that is, for a large number of Americans, simply expected and routine.Footnote ⁸

As with all ailments, how we diagnose the problem will shape how we think about the right treatment. If the problem is press specific, then the law should address these challenges by treating the press differently, perhaps by conferring special advantages or relieving general burdens, enabling the press to engage in its constitutionally recognized functions in ways that it currently cannot. If the press’s woes are symptomatic of a more systemic problem in law enforcement, however, then the press ought to prioritize limiting law enforcement’s power and discretion in ways that would benefit the press alongside many others as well.

This chapter reflects on the limitations of press exceptionalism. In my view, even if press-specific interventions are valuable in other domains, they are unlikely to be effective remedies for most law enforcement activities that target the press. My reasons for pessimism have more to do with criminal law and procedure than with free expression. Because criminal law is so broad, many routine newsgathering activities might run afoul of any number of state and federal statutes.Footnote ⁹ Reporters might also be accused of soliciting unlawful disclosures or aiding sources who violate substantive criminal laws.Footnote ¹⁰ Even where law enforcement may not intend to pursue charges against a journalist, the existence of broad criminal liability enables police and prosecutors to evade procedural restrictions on investigations of the press.

Press-specific protections are not well matched to these law-enforcement dynamics. Even the strongest procedural defenses for the press are likely to falter in the face of substantive law that criminalizes the acts that constitute newsgathering. Press-specific status rules are also hard for law enforcement to administer on the fly. And experience has shown that existing remedies do little to disincentivize unconstitutional conduct by law enforcement agencies. Furthermore, and perhaps most important of all, a model of protection that relies on the press to litigate its rights on a case-by-case basis is almost by definition ill-suited to systemic law enforcement dysfunction.

Even assuming that special press protections are valuable, they also have significant, underappreciated costs. Enabling the press to claim special legal status may entrench distrust of press actors. Recognizing special press rights to be free of surveillance and monitoring, for example, can help to consolidate and legitimate law enforcement’s substantial power to surveil and monitor everybody else. In the name of creating legal certainty and stability for newsgatherers, conferring special rights on the press also invites a different form of instability and uncertainty as decision-makers determine what terms like “newsgathering” and “press” mean. At least with respect to law enforcement – the focus of this chapter – press-specific protections are at best only mildly helpful and at worst counterproductive. The protections the press really needs are the same general safeguards against government overreach and broad law-enforcement discretion that all speakers should enjoy, not specific rules narrowly focused on the press.

The rest of the chapter proceeds in three main sections. First, I trace the existing protections for journalism – and those that are absent – to make the case that the press is relatively unprotected from law enforcement. Second, I argue that special protections are ill-equipped to solve systemic law enforcement problems. Finally, I point to some paths for the press to take a more aggressive role in reshaping law enforcement without using special protections to do so.

21.1 The Current Landscape

Many scholars have identified problems for press freedom that arise out of criminal law and procedure. Historically, a particular concern for the press was that it might be dragged into investigations or prosecutions of its sources because it possessed information obtained in confidence that was evidence of criminality.Footnote ¹¹ As a result, and in response to the lack of constitutional protection, a variety of statutory and regulatory constraints have developed to shield the press from being made to comply with these sorts of demands.

21.2 The Limits of Special Protections

Special protections such as shield laws and rules barring newsroom searches have operated somewhat well to protect press actors from being obligated to participate in criminal proceedings. To be sure, these protections do not function as well as many would like.Footnote ⁵⁷ Indeed, the practical value of special protections is an open question, because they often fail to deliver on their promise. Calls for reaffirming the press’s special protections are often loudest when existing protections fall short.

But press advocates are too optimistic about the potential of extending special protections to meaningfully constrain law enforcement. Indeed, special protections are both structurally and substantively ill-suited to the problems posed by law enforcement entanglements with the press.

21.3 New Approaches

The usual framing of press-specific protections – as special rights, privileges, or defenses that only press actors can invoke – is reactive rather than proactive. It assumes that the existence of press-specific protections will deter abuses and infringements on press freedom, and it relies on individuals and press institutions to litigate and pursue claims against powerful actors after violations have occurred.

The assumption that special protections will work to curtail the gravest threats to journalism is rooted in a fundamental faith that individual rights effectively safeguard government accountability. At bottom, they are designed for a different time, one in which the press and the government occupied a relatively stable “equilibrium,” and each institution served as a check on the excesses of the other.Footnote ¹³² As Christina Koningisor and Lyrissa Lidsky have demonstrated with respect to government secrecy in particular, the “underlying beliefs that the press is sufficiently powerful and the government is sufficiently constrained” underpin many of the core features of press freedom jurisprudence.Footnote ¹³³ Today, however, both elements of that equilibrium are under strain, with the diminishment of journalism and the rise in government power altering the balance in favor of the state.Footnote ¹³⁴ Meanwhile, these shifts are occurring against a background of substantial uncertainty about the scope and reach of First Amendment protections.

Without dramatically limiting the discretion afforded to criminal law enforcement agencies, doctrinal exceptionalism will not provide sufficient protection to the press function. Yet we most often see narrow and procedural protections instead of broad and substantive ones. The reason is, at least in part, ideological: The appeal of special procedural protections is in part that they enable the press to claim legal protection without outright challenging or critiquing substantive criminal law. Press institutions often prefer not to challenge law enforcement power outright, as doing so “could be seen to undermine journalistic objectivity by inserting press institutions into a broader debate.”Footnote ¹³⁵ Instead, the press has embraced a strategy of “seeking specific protections for journalists or ‘neutral’ actors” while leaving broader substantive criminal law intact.Footnote ¹³⁶ Press institutions have historically been reluctant to take a position on substantive issues related to criminal law enforcement. As I argue in earlier work, the press’s commitment to journalistic objectivity has also influenced its legal strategy and shaped its choices about advocacy.Footnote ¹³⁷ Because of a combination of scarce resources and institutional values, press institutions often prioritize litigation about issues such as government transparency or newsgathering rights instead of broader accountability-oriented litigation.

All of this is to say that I share the press exceptionalists’ concern that reporters and journalists face unacceptable levels of uncertainty about their legal protections as they gather and report the news. Where we part ways is with respect to the appropriate solutions. If my account so far is correct, then special protections are not the right path forward. So how can we effectively constrain government meddling and interference with the press function without special rights?

Part of the answer must be that any rights-based approach to press freedom has to be backed up by meaningful police reforms that decrease law enforcement’s ability to interfere with press functions. These reforms are more likely to be holistic than press-specific. To date, however, the press industry has typically stayed out of debates about police authority unless they directly implicate journalism.Footnote ¹³⁸ The press has been short-sighted about the potential threats that criminal law enforcement may pose to cherished constitutional values.

If the press were to change strategies – if the industry were to pursue greater limits on law enforcement power to ensure that newsgathering could operate with fewer inhibitions – it would reshape their advocacy efforts. The press is a powerful interest group capable of influencing policymaking, but it has chosen not to engage in many legislative debates that have deep implications for newsgathering.

A primary area on which the press ought to take a more aggressive position is the policing of protest. As one press freedom advocate has put it, “[C]overing protests routinely is the most dangerous activity for journalists.”Footnote ¹³⁹ Mass arrests at protests are common, and law enforcement often uses aggressive techniques to maintain order that have dramatic implications for journalists’ safety and ability to gather the news. For selfish reasons, then, the press industry ought to support meaningful reductions in law enforcement’s power to curtail protest.

Some changes to law enforcement practices are already afoot to restrict police discretion in controlling demonstrations and protest. In the last several years, political pressure and court-ordered settlements have compelled some of the nation’s largest law enforcement agencies to change how they police protests, including by creating new systems to respond to demonstrationsFootnote ¹⁴⁰ and restricting the use of “less-lethal” munitions.Footnote ¹⁴¹

Although these changes undoubtedly benefit the journalists and reporters who interact with law enforcement, they are largely not “special rights” – they reflect that broader changes to the policing of dissent are necessary to protect expressive freedoms.Footnote ¹⁴² As Joel Simon pointed out in his report for the Knight First Amendment Institute at Columbia University, “Many of the most serious press freedom violations that have occurred in recent years do not stem from any difficulty on the part of the police in distinguishing who is and who is not a journalist.”Footnote ¹⁴³ Instead, intentional targeting of press actors by law enforcement appears increasingly and disturbingly common.

The impediments to recovery of monetary damages for civil rights violations also suggest that the press ought to take a more aggressive and proactive role. The press could, for example, call for an end to qualified immunity, which often stands in the way of recovery for civil rights violations.Footnote ¹⁴⁴ Return for a moment to Villarreal v. City of Laredo, the case in which Lagordiloca was charged with misdemeanor solicitation of nonpublic information. While the U.S. Court of Appeals for the Fifth Circuit conceded that Villarreal had the right to publish the information that she received, the majority held that the city of Laredo was entitled to qualified immunity because it was not “clearly established” that Villarreal had a right to solicit nonpublic information from a government source – in other words, that she had a right to gather the news.Footnote ¹⁴⁵ The court suggested that Lagordiloca should have “followed Texas law, or challenged that law in court,” before engaging in newsgathering.Footnote ¹⁴⁶ As I write, the Fifth Circuit is reconsidering Villarreal’s case after the Supreme Court remanded it.

Despite lingering uncertainty about the outcome for Lagordiloca, Villarreal suggests that press institutions should affirmatively seek legal clarity about the scope of newsgathering and thus invites the press to consider what such a litigation strategy could look like. In particular, there are two areas in which the law of newsgathering could be developed. First, the press could employ a coordinated litigation effort to clarify and develop newsgathering protections. Numerous states have laws that affect newsgathering. While Texas’ prohibition on the solicitation of nonpublic information seems unique, many states have criminalized other elements of newsgathering through prohibitions on trespass, interference with official acts, or the receipt of stolen property. A litigation strategy oriented toward limiting the impact of these criminal laws on the free flow of information may produce some certainty about constitutional newsgathering protections. It may even produce major benefits for press freedom. It need not, however, be press specific or even centered on the press.

One such strategy might center on the role of subjective intent as a limit on broad criminal statutes that affect newsgathering. For First Amendment scholars, the role of intent in circumscribing potential civil and criminal liability is familiar: In cases involving obscenity, defamation, and true threats, the Supreme Court has required that, even in cases involving utterly unprotected speech, prosecutors must demonstrate that a defendant acted with subjective intent to produce the danger that the law is meant to prevent.Footnote ¹⁴⁷ But many statutes criminalizing newsgathering already include mens rea requirements, limiting this strategy’s utility. A further-reaching strategy might be modeled on the successful effort to secure judicial recognition and protection of the right to record government officials in public.Footnote ¹⁴⁸ That effort involved a mix of pre-enforcement challenges and Section 1983 suits.Footnote ¹⁴⁹ Notably, although the ability to record is of critical importance to journalists and the press, the right to do so is not limited to those exercising the press function: It is a right possessed by all.Footnote ¹⁵⁰

Another area for development is the use of class action lawsuits against law enforcement agencies that systematically engage in actions that infringe on press freedom. Litigation over racial profiling in traffic enforcement provides a useful model: Class actions alleging a pattern or practice of discriminatory enforcement that violates the Fourth and Fourteenth Amendments have overcome some of the many barriers to police reform and resulted in ongoing court-ordered monitoring.Footnote ¹⁵¹ If press actors have compelling evidence that a police agency is purposefully engaging in practices to stifle newsgathering and retaliate against First Amendment-protected activity, law enforcement reform litigation can be a powerful tool. Indeed, police reform litigation is doubly significant for the press because it not only relies on government information (which the press might be skilled at uncovering) but also frequently uncovers additional information of significant public concern (which the press could use in its news reporting).Footnote ¹⁵²

Nevertheless, it is not at all obvious that efforts to “settle the law” through litigation will necessarily advance press freedom.Footnote ¹⁵³ Villarreal itself reveals a circuit court that is highly deferential to criminal law enforcement. Efforts to clarify and strengthen the law of newsgathering may risk undermining the tenuous protections that currently exist. Indeed, in the context of the Espionage Act, some have suggested that “benign indeterminacy” ultimately may be preferable to settling the question.Footnote ¹⁵⁴

Broader restrictions are necessary to reshape police authority and law enforcement’s relationship with the press. But legal action is unlikely to accomplish these goals without sustained pressure and community involvement. In this respect, it is a real problem that many press institutions have taken the position that objectivity requires reporters to act apolitically. Indeed, many news organizations bar their employees from engaging in political activism or supporting political causes.Footnote ¹⁵⁵ These policies inhibit the ability of journalists and reporters to challenge how law enforcement clamps down on free expression. Ironically, the objectivity paradigm prevents journalists from participating in grassroots organizing alongside others who are advocating for their First Amendment rights.

Even so, press institutions can take a more aggressive tack in addressing law enforcement agencies’ choices in interacting with the communities they serve. Press institutions might take the lead in advocating for new training, policies, and regulations for how law enforcement engages with First Amendment rightsholders, for example. Or they might call for meaningful constraints on law enforcement surveillance, in recognition of pervasive monitoring’s implications for free expression.Footnote ¹⁵⁶

21.4 Conclusion

As mainstream news outlets wither and the job of producing press coverage is distributed more broadly, the classic protections for press freedom are becoming less effective at protecting journalists. The distribution of press work means that journalists are harder to identify, and it is therefore more difficult to determine whether an individual is entitled to special protections or not. Meanwhile, very broad substantive criminal laws also permit law enforcement to investigate, monitor, threaten, and ultimately punish press actors, regardless of special protections that may apply. This dynamic is especially concerning as states have acted to criminalize protest activities,Footnote ¹⁵⁷ undercover investigations,Footnote ¹⁵⁸ and other expressive conduct.Footnote ¹⁵⁹ Broad statutes are proliferating; at the same time, First Amendment doctrine supplies only limited avenues for effectively challenging them.

In short, the problem that press freedom faces is not simply a problem of insufficient protections; rather, it is that any procedural protections are likely to be less effective against a very powerful state.Footnote ¹⁶⁰ Press freedom advocacy needs to become bolder, braver, and more aggressive if it is to ensure that the values of journalism remain viable amid threats to democratic discourse and critical news coverage.