In June 1945, the U.S. Supreme Court issued a 4,900-word opinion that significantly curbed the power of an aspiring monopoly known as the Associated Press (AP).Footnote ¹

The case arose out of the wire service’s adoption of two new bylaws. The first allowed its 1,200 member newspapers to block their competitors from joining the service, thus denying a large number of news outlets access to the vital information provided by the wire. The second banned member newspapers from selling their content directly to any nonmember newspaper. In short, news organizations that were members of the AP had access to news from around the country and the world, but those that were not part of the news agency were denied not only the AP’s wire content but also all content produced by the member papers themselves. If one of their competitors managed to gain AP membership, then they were banned from joining as well. The Supreme Court, however, ruled that these new policies were antitrust violations under the Sherman Act, which, among other things, explicitly prohibits businesses from banding together to undercut their competition.

Among its defenses, the AP had argued the government was infringing on its constitutionally protected press freedoms. But Justice Hugo Black, writing for the Court, rejected that argument and held that the First Amendment did not allow the AP to run nonmember papers out of business. In fact, he asserted that the constitutional provision functioned to ensure the opposite. The First Amendment, Black wrote, “rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public,” and “a free press is a condition of a free society.”

Rather than simply a ban on government interference, Black identified in the First Amendment an affirmative right, held by each American, to have access to the breadth and depth of information that only a robust and diverse press can provide. Black’s son would later recall that his father believed press freedom meant more to “the preservation of our democratic republic than” any other part of the Constitution, even as he believed it was necessary to break up concentrated media power and “(disperse) that power more equably.”Footnote ²

Black’s contention that there is a public right to robust, accurate information has been a core value held by many of America’s most consequential journalists, who understood it to be a central prerequisite of any nation that aspires to be equal, equitable, and just: “The people must know before they can act. And there is no educator to compare with the press,” wrote Ida B. Wells.Footnote ³

Half a century later, Ralph McGill expounded on this idea, declaring, “Freedom of the press is not the personal property of any one editor or publisher, or of any association of them. It is not something that can be locked in the safe at night … It is merely one of the guarantees to the people. It is their property.”Footnote ⁴

Most often taken as ensuring a freedom of the press as an industry, Black’s ruling suggests a more proper reading of the First Amendment provides an individual right to the press, namely, that citizens in our democracy will have access to reliable, accurate, and comprehensive information in order to empower their full enfranchisement in our democracy, with the promise that each citizen has a right to know.

A free press is often heralded as a key cornerstone of American democracy, functioning as a vital institution tasked with informing the public and holding those in power accountable. Yet, as the industry faces an existential crisis, with the collapse of traditional business models and the rise of deep political polarization amid a sea of misinformation and propaganda, it has become increasingly clear that thinking of press freedom only as a market that must be protected from government interference cannot sustain the kind of robust, diverse, and accessible press that a healthy democracy requires. This chapter argues that to truly fulfill the promise of a “right to know” for all people, we must reimagine the relationship between the press and the public and consider bold new forms of public support for journalism.

***

By the time of Black’s opinion in Associated Press, the American press had evolved far beyond what it was 150 years earlier, when James Madison first crafted the language that would become the First Amendment. In his later writings, Madison argued that in a representative republic in which citizens elect their leaders, care of the public opinion is a paramount concern. “Without the rule of public opinion, government cannot rightfully be considered free,” wrote historian Colleen A. Sheehan of Madison’s ideology, noting that he and other founders took it as a given that there would be a vibrant, diverse, privately owned American press and that the government had a proactive obligation to ensure that it remained so. “In Madison’s understanding of free government, the representative is thus made responsible for influencing and guiding public opinion … Because public opinion is sovereign in a free society, the republican statesman is obliged to advance its formation and expression.”Footnote ⁵

By the late 1800s and early 1900s, the American press had transformed from a relatively niche industry in which men of letters debated the vital issues of the day into loyal organs of competing political parties and then, finally, into an increasingly powerful form of mass communication. “Far more important than any part they ever played in politics, newspapers finally established themselves in an indispensable role as journals of vital information,” opined Ken Cooper, the longtime chief executive of the Associated Press.Footnote ⁶

From the beginning, however, this new form of the press, charged with disseminating nonpartisan information, faced criticism for failing to live up to the nobility of its mission. As the century turned, newspaper titans Joseph Pulitzer and William Randolph Hearst pioneered “yellow journalism” – a sensationalist style that blended fact and fiction in order to maximize profits. In turn, Adolph S. Ochs founded The New York Times on the promise that its news reports would be unbiased, staid, and impartial. Yet, in response to The Times’ failures to live up to its own stated standards, critics like Walter Lippmann lambasted the paper, noting that for all its vows of impartiality, its reports often depicted a version of reality skewed by its journalists’ establishmentarian biases. “The current theory of American newspaperdom is that an abstraction like the truth and a grace like fairness must be sacrificed whenever anyone thinks the necessities of civilization require the sacrifice,”Footnote ⁷ Lippmann wrote, accusing The Times of censoring views and ignoring facts that cut against status quo beliefs.

Newspaper editors largely rejected Lippmann’s calls for rigorous journalistic methods (even as they later developed a self-mythology in which they claimed him as their patron saint). Generations of critics echoed Lippmann and other early twentieth-century press dissidents concerning the dangers of a greedy, lazy, irresponsible commercial press and were similarly dismissed.Footnote ⁸

During World War II, University of Chicago President Robert Hutchins and Time magazine founder Henry Luce convened a thirteen-member panel of prominent scholars to examine the state of the press. In its 1947 final report, the Hutchins Commission observed and warned that

If the charge of the press is to nurture our public opinion, which in turn powers our democracy, then the performance of the press can be judged by the health of that democracy. By that measure, then as now, there is no question our press has fallen desperately short.

The Hutchins Commission noted that the American press was controlled by private businessmen who too often utilized their presses to spread divisiveness, misinformation, and political propaganda. Its members warned that an irresponsible press that prioritized profits over the public good would result in an American populace willing to support significant governmental impositions on press freedom. Today, the leader of one of our country’s major political parties proclaims the press “the enemy of the people,” vows to alter libel and defamation laws in order to undercut press freedoms, and directs his raucous crowds to target individual journalists who fail to indulge him. We are living the Hutchins Commission’s nightmare.

***

The technological innovations of the last century – from broadcast radio and television to cable and then the digital revolution ushered in by the internet – have upended the media industry, the public square, and the geopolitical order. Ultimately, cellphones, broadband internet, and social media have placed publishing and distribution power in the hands of every individual citizen, giving each the equivalent of their own printing press and the possibility that their dispatches, no matter how factual or farcical, could be consumed by the world.

We, furthermore, live in an era of significant media consolidation. Locally owned newspapers beat out and bought out their cross-town competitors, before themselves combining into regional and then national chains. Many of those companies then shifted from being privately owned to publicly traded companies, requiring them to optimize profit at the expense of the information needs of the public. The internet ripped the heart out of the print advertising business and upended the general-interest news bundle, forcing publishers to chase online traffic and decode ever-changing tech algorithms.

A handful of innovative media outlets have managed to thrive in this challenging environment, often by serving niche audiences, such as political obsessives or high-income finance workers. Others, however, have resorted to monetizing divisiveness and propaganda. As journalist George Packer observed in The Atlantic, “[v]enerable outlets perish or self-mutilate; newer ones come and go in a flash; mountains of bait are thrown into the water to see what rises to the surface.”Footnote ¹⁰ Packer’s assessment leads to a damning, if understated, verdict: “This exhausting effort consumes so much time and talent that it’s difficult to face the obvious truth: The for-profit model of journalism shows signs of being broken.”Footnote ¹¹

These signs are not small ones but rather billboards projecting a dire warning from high above the graveyard that houses a century’s worth of corpses.

In the 1940s, America was a nation of about 133 million residents with 44 million newspaper subscriptions among them – nearly a newspaper per household. Circulation continued to climb through the mid-1980s before leveling off and then, with the spread of the internet in the 2000s, plummeted into the abyss. By 2022, there were just 20.9 million American newspaper subscriptions, including digital subscribers – less than one for every 20 of the country’s 333 million residents.Footnote ¹² “It is clear that the for-profit model cannot be sustained except at a few national news brands,” asserts Neal Zuckerman, a media analyst with the Boston Consulting Group. “Consumers’ and advertisers’ willingness to pay is not sufficient to cover the costs of creating, distributing, and operating local newspapers.”Footnote ¹³

The most recent study by Northwestern University found that since 2005 the country has lost nearly 2,900 newspapers and almost two-thirds of its newspaper journalists. “The last 20 years of local news have been grim, a narrative told in verbs such as demise, decimate, devastate, and decline,”Footnote ¹⁴ according to political scientists Danny Hayes and Jennifer Lawless. They further assert, “No part of the business has gone unaffected, with some newspapers disappearing altogether and others reduced to such shells that it just seems like they’ve disappeared.”Footnote ¹⁵

Notably, there are a few national mainstream media outlets that have managed to turn our current moment into a financial boon. Take CNN for example. Between 2016 and 2022, as the network’s on-air reporters and anchors were (accurately) proclaiming that the fate of American democracy was imperiled, CNN’s corporate owners and their shareholders pocketed more than $1 billion a year in profit.Footnote ¹⁶ Along similar lines, in November 2023, an article headlined Uncertain Times Have Been Good for Dow Jones explained that the corporate owners of the Wall Street Journal and Barons were on pace to make the most money of any quarter since Rupert Murdoch acquired them in 2007.Footnote ¹⁷ That same year, The New York Times projected that the paper would earn close to $100 million in profits, despite it being one of the American media’s worst years in recent history, with thousands of journalism jobs lost.Footnote ¹⁸

Our nation needs organizations like The Times which, despite others’ best efforts, has no journalistic peer. To its credit, The Times has for years been among the leading chroniclers of the demise of local newspapers. The Times has also invested in significant investigative partnerships with local outlets, sponsoring rigorous journalism in places where market forces long ago forced such work to extinction. But this corporate charity cannot change the fact that The Times and its would-be peers are, first and foremost, businesses with financial interests that will always clash, at least to some extent, with their stated values. No matter its newsroom’s ethics, The Times’ primary institutional prerogative will always be making (or at least not losing) money. The Times has nobly declared its editorial independence from political causes, movements, and ideologies,Footnote ¹⁹ but actual independence – true freedom – cannot be achieved by an outlet that remains a slave to the market; its decisions are necessarily dictated by the demands of advertisers, online traffic trends, and the sensibilities of its subscribers. The Times and its peers are not actually, as former managing editor Gerald Boyd was known to call them, “a public trust.”Footnote ²⁰ At their best, they provide a vital service to society, but they remain, at their core, profit-seeking private enterprises. “The Times goes to great lengths to assert its independence; it’s practically the company’s mission statement. Some of this, undoubtedly, is driven by business interests … it wants the largest possible audience,”Footnote ²¹ media critic Margaret Sullivan, who spent four years as the paper’s public editor, has observed. “A big tent, if the entry fee is high enough, is a lucrative tent. That’s one of many reasons for this emphasis on ‘independence.’”Footnote ²²

Even within the most professional newsrooms, journalistic decisions are made based on the concept of “news values” – what assignments, headlines, and story framings will attract the most readers, drive the most clicks, and sell the most newspapers by being the most attractive and compelling to readers – which is a capitalistic incentive, not a journalistic one. In 1987, Pamela Shoemaker offered (and critiqued as tools of the status quo) what remains the widely accepted list of “news values.”Footnote ²³ Shoemaker listed timeliness, proximity, impact, interest, conflict or controversy, sensationalism, prominence, and oddity. These values, or built-in biases, underscore the extent to which our news ecosystem is not based on providing the public what it actually needs to know to nurture a healthy democracy. “News values can be seen less as a reflection of what type of information citizens want or need,”Footnote ²⁴ researchers Tony Harcup and Deirdre O’Neill have argued, “[a]nd more as a reflection of organizational, sociological and cultural norms combined with economic factors.”Footnote ²⁵

Most “sensational” stories hold little tangible relevance to citizens’ lives and livelihoods. Timeliness, by its nature, prioritizes speed over rigor. Proximity precludes thoughtful coverage of consequential events from across the country and around the world, thus denying readers the broad base of knowledge needed to fully participate in the democratic process and to influence not just local matters but global ones. A focus on how many people are “impacted” by a story or event provides a means of dodging the responsibility to accurately document the realities of minority communities. A bias toward framing stories through the lens of controversy or conflict is a recipe for removing necessary context, complication, and nuance. An emphasis on audience “interest” is pure capitalism – defining something as news if people are willing to consume it.

Through that lens, it should not be surprising to see studies like a recent report published in the Columbia Journalism Review, which examined political coverage that appeared on the front pages of The Times and its chief rival The Washington Post during the months leading up to the 2022 midterm elections.Footnote ²⁶ The study found that our nation’s leading news organizations had provided coverage that offered “little insight into policy.”Footnote ²⁷ Researchers found that, out of The Times’ 219 frontpage articles about domestic politics, just 10 “explained domestic public policy in any detail.”Footnote ²⁸ On the frontpage of The Post, just four pieces out of 215 “discussed any form of policy,” and not a single one probed the “policies that candidates aimed to bring to the fore.”Footnote ²⁹ During a vital election year, amidst a historic battle for the future of our multiracial liberal democracy, our leading journalistic outlets produced reams of political “news,” yet, by at least this measure, managed to offer the public little in terms of vital knowledge and information necessary for self-government.

Of course our leading journalistic organizations provide more political theater criticism and horse race analysis than they do substantive coverage about the stakes of public policy. This is because they operate in a market that has made it clear what it is willing to pay for and what it is not. For decades, press critics, with Jay Rosen at the forefront, have been detailing the democracy-corroding norms of most mainstream political journalism. In 2008, Rosen aptly described the pervasive “who’s-gonna-win” mentality: “‘Who’s-gonna-win?’ is portable, reusable from cycle to cycle, and easily learned by newcomers to the press pack.”Footnote ³⁰ It’s a mentality, Rosen explained, that “generates an endless series of puzzles toward which journalists can gesture as they display their savviness, which is the unofficial religion of the mainstream press.”Footnote ³¹

Such journalism has continued largely unaltered not because most journalists disagree with the substance of these critiques, though some, of course, do. Rather, it persists because of the underlying financial realities. For the companies that control our media, journalism befitting our democracy – focused on substance and complexity, not ephemeral scoops and partisan conflict – is not a viable business plan. It can’t win ratings wars, it doesn’t sell papers and drive traffic, and it certainly doesn’t produce the kind of profits needed in order to keep owners, executives, shareholders, and their offspring firmly planted within the American aristocracy. Adequately informing the whole of the public and maximizing profits are incompatible aims. We’ve convinced ourselves our goal is the former, yet we’ve constructed our democracy’s information ecosystem around the latter.

It is necessary to draw a distinction between a media system that prioritizes “news” and one that aims to disseminate “information.” All news contains some information. But not all information or journalism is “news.” The most vital information – how to participate in democracy, what public services are available and how to procure them, what your government is actually doing and not doing, how to best understand and contextualize daily societal occurrences – is almost never relayed in our “news.” Instead, most “news” consists of context-lacking micro-updates, singular scenes cut from an ongoing public soap opera that are nearly incomprehensible to anyone who has missed the last episode and that will be proven inaccurate, irrelevant, or both by the airing of the next one. As famed writer Gay Talese recalled of his childhood impression of the press, “[n]ews” was not information, facts, or even knowledge but was “ephemeral.”Footnote ³² “News is a commodity, not a mirror image of reality,”Footnote ³³ economist James T. Hamilton wrote in 2004. “Focusing on media economics shows how consumers’ desires drive news coverage and how this conflicts with the ideal of what the news ought to be.”Footnote ³⁴ Or, as Lippmann noted a century ago: The truth and the news are not the same thing. “The function of news is to signalize an event,”Footnote ³⁵ he wrote, and “[t]he function of truth is to bring to light the hidden facts.”Footnote ³⁶

Truth has tangible value; it decodes complexity and equips the citizenry with the ability to navigate an ever-complicated world. News is now produced at an unprecedented clip by social media influencers, podcasters, and virtually every person with access to the internet. News sows distrust because most news is sensational, lacking rigor, and incomplete. What American democracy needs, what it craves, is quality information: vetted, trustworthy, and complete. “Citizens need journalists more than ever, precisely because there is so much information available, of such varying quality and relevance,”Footnote ³⁷ Thomas E. Patterson wrote in 2013’s Informing the News, in which he argued that the journalism required for healthy democracy must be reflective, not reflexive. Patterson called for “knowledge-based journalism,” in which journalists develop expertise and deploy slow, rigorous methods.Footnote ³⁸ “There are plenty of conscientious journalists. But their efforts are diminished by what other reporters are doing.”Footnote ³⁹

***

Although there have been American news organizations operating as nonprofits for more than a century, the post-Watergate era witnessed the birth of a small but influential wave of nonprofit outlets that set the stage for the sector’s current explosion. The movement began with the founding of Mother Jones magazine in 1976 and the Center for Investigative Reporting in 1977. These outlets were explicit about their mission: to tell the types of stories that corporate-owned media were disincentivized from producing by deploying the kind of journalistic rigor often absent from daily news coverage. “As news organizations have reduced their commitment to serious journalism, there has been an incalculable cost to communities, to citizens’ ability to monitor those in power, and of course to those professionals directly impacted in the profession of journalism itself,”Footnote ⁴⁰ wrote Charles Lewis, a pioneer of the nonprofit journalist model. In 1989, Lewis founded the Center for Public Integrity,Footnote ⁴¹ and in 1997 he launched the International Consortium of Investigative Journalists. He would later be among the co-founders of the Institute for Nonprofit News and launch the Investigative Reporting Workshop.Footnote ⁴² “The question was,” Lewis wrote in 2006, “Is there a way to create a modest attempt at a journalistic utopia …?”Footnote ⁴³

Once an outlier in the journalistic landscape – for much of the last century, nonprofit media consisted primarily of National Public Radio and its various local affiliates – the sector ballooned in the 2000s, as the bottom finally fell out of the newspaper industry. Over the last two and a half decades, a number of high-profile nonprofit newsrooms have been launched, including ProPublica in 2008, the Texas Tribune in 2009, the Marshall Project in 2015, the 19th* in 2020, and a wave of lesser-known news organizations that have sprouted up across the country. In many cases, these organizations have framed their missions not as replicating the corporate media outlets that they hope to replace but as explicitly offering a public service that those organizations refuse to provide. In 2015, the Institute for Nonprofit News had about 120 members.Footnote ⁴⁴ Today, it represents more than 400 nonprofit news organizations, about 300 of them local newsrooms.

The nonprofit news ecosystem is primarily bankrolled by a handful of major philanthropic organizations and includes structural support, consisting of, among others, programs that help these publishers establish membership programs, run end-of-the-year giving campaigns, and share editorial and business best practices. These noble efforts have unquestionably bettered our field and resulted in a nonprofit media sector that produces meaningful journalism. Indeed, to some, nonprofit journalism is the coveted answer to the failings of the commercial press, especially at the local level.

Reality, however, suggests that we remain far from the utopia Lewis envisioned because there simply is not enough money available to finance a nonprofit journalistic nirvana. The best estimates suggest that rebuilding the local news and information ecosystem will require between $1 billion and $3 billion each year.Footnote ⁴⁵ As of 2023, the Boston Consulting Group estimated that current philanthropic giving to local journalism totals about $150 million a year.Footnote ⁴⁶ A coalition of longtime journalism funders, led by the MacArthur Foundation and Knight Foundation, has recently launched a campaign called “Press Forward,” which aims to mobilize $500 million over the course of five years toward rebuilding, revitalizing, and reimagining local news.Footnote ⁴⁷ It is a noble, unprecedented effort that is undoubtedly already the largest fundraising campaign for news and information in American history.

It’s also a band-aid being frantically fastened over a gaping bullet hole. Even if Press Forward reached its goal of pumping half a billion dollars into local nonprofit news over the course of five years, and even if every single one of those were new, previously uncommitted dollars, that would bring the total of philanthropic funding for local news and information to about $250 million a year – somewhere between 8 and 25 percent of what has been deemed necessary, and nowhere close to the amount needed to stabilize American democracy.

And there are legitimate concerns, often voiced quietly by those unwilling to risk earning the ire of such prominent and important potential funders, that such a centralization of nonprofit funding could in fact create a more risk-averse, stylistically monochromatic nonprofit press. In April 2024, Richard Logan, a leading journalism funder, warned attendees of an investigative journalism conference at UC Berkeley that, intended or not, such consolidation of foundation giving would have the same disastrous effects that corporate media consolidation had over the course of the previous century, leading to a nonprofit press corps too terrified of upsetting its wealthy benefactors and powerful foundations to do its job: “The writing has been on the wall for a long time,”Footnote ⁴⁸ Logan declared, according to the notes I took from the audience. “If you think life without freedom and democracy is worth living, then well I guess when we’re in the camps we’ll have very little to talk about.”Footnote ⁴⁹

And those nonprofit news organizations who succeed in earning the favor of philanthropies and foundations are then tasked with completing the same puzzle that for-profit media failed to solve for a century, namely convincing a sizable-enough portion of the public to pay sufficient money to support an information system that can effectively serve the masses before this philanthropic seed money runs out. “No one in the foundation world wants to think these nonprofits are going to be dependent on foundations for a long time,”Footnote ⁵⁰ an employee of a major foundation remarked in 2010. “Journalism startups have got to figure out some way to get people to pay for them.”Footnote ⁵¹ More recently, when announcing support for a new local nonprofit news organization in Houston, a major journalism funder described philanthropy’s role as supporting the Fourth Estate “until the industry finds its footing”Footnote ⁵² – as if the flailing information system undermining our democracy were a younger sibling in need of some cash to cover their housing deposit.

The assumption at the heart of the push for nonprofit media “sustainability” is that, despite a century of available evidence, local markets across the country are not only capable of but willing to support healthy information ecosystems. But unacknowledged in this formulation is the fact that many of the core components of the local news bundle that kept newspapers, magazines, and television news profitable for much of the twentieth century – sports scores, classified ads, weather predictions, crosswords, coupons, and comics – are now readily available, for free, to would-be news consumers via the internet.

Also unacknowledged in this plan is the reality that all too often the communities most in need of healthy civic information are also those least able to pay for it, even if they wanted to. “Business models for local news … simply don’t work for outlets serving low-income communities,”Footnote ⁵³ observed Madeleine Bair, who in 2017 founded El Timpano, which serves Latino and Mayan immigrants in the Bay Area of California. “Sustainability has become a core focus for many journalism funders, who want to see that a news outlet will not rely on philanthropy for the long term,”Footnote ⁵⁴ Bair continued,

If there is one lesson the last one hundred years of the American press has taught us, it is that the type of rigorous information ecosystem required of a healthy democracy is not sustainable as a market-supported enterprise – at least not in many of the communities that most desperately need accurate news and information, and certainly not at scale. Yes, some local nonprofit news efforts have – through subscription, sponsorship, membership, events, and foundation money – found innovative ways to fill information gaps. But we cannot allow small successes to distract from inescapable conclusions. Through its focus on the unachievable aspiration of local news sustainability, philanthropy has made clear it is unwilling and unable to support democracy’s long-term information needs. So too have the consumers. National Public Radio – described as public media but more accurately understood as a nonprofit outlet with some public support – has spent decades attempting to build a membership model. It is currently in a crisis, with at least one industry watcher predicting all of “public radio” could collapse within a decade.Footnote ⁵⁶

Amid these realities, many of the journalists most successful at building nonprofit organizations have explicitly called for a non-market-based remedy. “More ambitious philanthropy and business model improvements will not be enough to reverse the loss of local news, let alone build a better, more robust, more inclusive local news sector than we’ve had before. Government must play a role,”Footnote ⁵⁷ argued Steve Waldman, the co-founder and former president of Report for America and his Rebuild Local News coalition colleague Anna Brugmann. Sewell Chan, the outgoing editor-in-chief of the Texas Tribune and incoming editor of the Columbia Journalism Review, wrote an essay pleading for urgent investments not just from philanthropy and citizens but from the government in order to stem what he described as an “information apocalypse”:

Or, as Elizabeth Green, the CEO and co-founder of Chalkbeat, has put it: “We have to subsidize reporting if we want democracy to survive.”Footnote ⁵⁹

***

In American democracy, innovative and provocative ideas – from abolition to suffrage to desegregation to marriage equality to drug legalization to redress and reparations – often begin in states before eventually marching their way to Washington. And recent years have seen a movement, largely led by Waldman and his colleagues, to convince local and state governments to provide public funding as a means of infusing resources into our dying media ecosystem.

If a free press is truly a vital public good, with the best media outlets vowing to serve as a public trust, then we must create an actual federal public trust to ensure every American has access to the news and information they need to be full citizens in our democracy. The aim would not be a government-run media but rather a government-ensured one. Rather than create a centralized public media that could be punished by politicians who dislike its coverage – or commandeered as a propaganda tool by a demagogue president – we could instead direct federal news and information money directly to local communities.

If Congress were to create such a trust, it could, for example, pledge to provide $10 million in annual federal public information grants to each of the country’s 435 congressional districts. This would channel urgent public resources to every community in the country, instantly transforming the news and information landscape for the relatively modest, by federal budgeting standards, price tag of $4.35 billion per year. Such a program would place money directly in the hands of local media outlets, neighborhood organizations, and civic institutions that reflect the demographics, values, and sensibilities of America’s various communities.

Such a program could follow the successful, widely accepted model of the U.S. National Science Foundation, a federal agency established in 1950, which in fiscal year 2023 distributed more than $7 billion in taxpayer money to researchers at US colleges and universities.Footnote ⁶⁰ And there is precedent, in the Corporation for Public Broadcasting (CPB), for the independent administration and distribution of government dollars to support a free press. The $4.25 billion allotment for public information could be administered through the creation of a new agency, governed by a charter that ensures and insists it is operated in a way that is, as President Lyndon B. Johnson vowed when he authorized the creation of the CPB, “carefully guarded from Government or from party control. It will be free, and it will be independent – and it will belong to all of our people.”Footnote ⁶¹

Federal public information money could be limited to news and information efforts, excluding pure opinion journalism, and available to any institution that proposes innovative efforts to expand the availability of rigorous, factual information in order to empower citizens to fully participate in our democracy. Eligible institutions could include for-profit and nonprofit newsrooms, other nonprofit organizations, colleges and universities, libraries, and other civic institutions. It is easy to imagine a host of projects, carried out by news organizations, civic institutions, or partnerships between both, that would meet such criteria. These projects could ensure that every citizen has access to information about registering to vote, polling locations, and local candidates and political issues on their ballot, as well as their community’s local history and contemporary challenges. This money could also guarantee that an accessible public record is created of every government meeting, that a transcript is taken and archived of every court proceeding, and that there are trained professional journalists in every city hall and statehouse to help sift through and interpret all of this information. Importantly, at a time when news organizations face, among other things, a distribution crisis, the funds would ensure that such information is actively disseminated to citizens in order to inform public opinion.

Just as the point of a public library is not to replace or compete with the bookstore, such an agency would not aspire to construct a public media system to replace or displace commercial and nonprofit media. Rather, it would provide for a suite of services that the market will never incentivize for-profit businesses to create on their own – services that compile and curate information while also working to ensure that all citizens, regardless of means, have access to that information. “Americans need accurate, contextual news and information to make decisions that help our communities thrive. It’s tempting to think that means news leaders need only focus on gathering and publishing facts. But local news has other essential roles that complement and enhance reporting,”Footnote ⁶² Samantha Ragland and Kevin Locker of the American Press Institute have argued, highlighting public information efforts, including the “solutions circles” convened by the Mississippi Free Press to brainstorm ways of addressing community problems, public forums held by the Cardinal News in Virginia, and storytelling events run by The Tennessean that help community members share their own experiences, among others. “Media should also be a force for social connection,” asserted Ragland and Locker, and further, media should be “[a] convener of people across differences and a facilitator for what to do after the facts are laid bare.”Footnote ⁶³

What those who champion such public information (also referred to as civil information and, in the mid-1990s, “public journalism”Footnote ⁶⁴) understand is that democracy will not be saved by fact-checks, investigations, or view-from-nowhere-coded news dispatches alone – not even if today’s media organizations possessed a means of distributing them to a majority of the population (which they do not) and not even if that population trusted our media organizations (which it does not). In fact, decades of social science tell us that presenting people with facts that contradict their beliefs and opinions is not enough to change their minds or eradicate falsehoods.Footnote ⁶⁵

“No one is ever forced by just the collection of facts to accept a particular theory of their meaning,”Footnote ⁶⁶ philosopher John Dewey wrote in 1927. “The imagination of the founders did not travel beyond what could be accomplished and understood in a congeries of self-governing communities,”Footnote ⁶⁷ Dewey continued, calling for us to consider democracy, especially a geographically vast and racially diverse one, impossible without the development of a shared “great community.” A similar framing was echoed, decades later, in the final book published by the Rev. Dr. Martin Luther King Jr. prior to his assassination, which wrestled with how, following the 1965 Voting Rights Act, Americans could best build cohesive multiracial democracy. “Where Do We Go From Here,” asks the book’s title, “Chaos or Community?”Footnote ⁶⁸

While often framed as having been in ideological “debate,” Dewey and Lippmann are better read together, as an argument for democratic cohesion: the belief that a healthy public opinion, and thus a functioning democracy, requires both that the public have access to reliable, rigorously compiled and honestly presented facts as well as thriving local communities, well-tended by reliable institutions (the press chief among them), for that information to be digested and debated. A democracy fails if it has one but not the other. Currently, our democracy has neither.

As Richard Young, the founder and executive director of CivicLex, a media organization in Lexington, Kentucky, put it:

***

There will likely be a powerful, vocal opposition from within journalism and the media, not just to the particulars of this proposal but to any step toward providing significant public funding to support the American press. The core of this is an ideological rejection of anything that could threaten the perception that our media is independent of the government that it covers.Footnote ⁷⁰ And there is no question that there is significant reason for vigilance to prevent political figures and partisans from wielding indiscriminate power over the press that holds it to account.

Yet the American market is as powerful a force in American life as the American government. We’ve spent centuries worrying that some president or king will seize our presses when all along it has been our own owners, publishers and editors – ever anxious about the sensibilities of advertisers, readers, and subscribers – who are those most likely to halt them and most often actually halting them. It has been a press that is hopelessly wedded to that market that incentivizes our industry’s worst professional instincts and has helped bring our democracy to the brink. As poll after poll shows trust in the American press at the lowest levels on record,Footnote ⁷¹ too many industry leaders and journalistic practitioners insist that the only potential solution is more of the same. Surely, we can survive a mild resetting of the scales. Because the market, left to its own devices, does not build community. It sows chaos.

There is a growing movement in favor of more market regulation, especially as it relates to technology companies who now hold near monopolies on the distribution of information. And there are arguments being made for a more robust, fully funded public media. Both are based in the same principle, namely, that the government must play a proactive role in encouraging and facilitating a healthy information ecosystem, as the argument for the creation of a public trust to sponsor public information. Such government investment should not be seen as a replacement for the growing philanthropic support for journalism but rather as a welcome supplement to it. Nothing in this chapter should be taken as an argument in favor of centralized, government-run media. Instead, it is an endorsement of a news and information ecosystem composed of countervailing forces: a healthy, properly regulated market-based press; an ascendant nonprofit press sector; and a properly funded public media. All of those distinct forces would then, in this system, be buoyed by the possibility of receiving government support in exchange for providing vital public information they would otherwise be disinclined by market forces to produce.

Imagine an American information ecosystem constructed as a stool with three distinct legs. When one wobbles or falters, the others are able to carry its weight. But the stool itself cannot stand if it is constructed on top of sand. A healthy press requires a firm foundation, a minimum flow of healthy information available to all, and communal venues in which all can gather to digest and debate it. A public trust for the press would help ensure that foundation, incentivizing each pillar of our press toward its better angels.

Legal scholar Martha Minow has argued, “Government action always carries risks and need to comport with constitutional guarantees, but government inaction can also jeopardize constitutional guarantees.”Footnote ⁷² Minow has also opined that,

If there truly is, as Justice Black argued, an American right to know, then there is little choice but to subsidize our news and information ecosystem. Our society has a long-established solution for public entitlements that the free market will not support equitably: We have the government pay for them. Such a system would not be a government-controlled press but rather a government-ensured one. And such public investment would ensure every American has news and information providers that, as journalist Darryl Holliday has put it, “strengthen democracy rather than erode it.”Footnote ⁷⁴ If we aspire to be a true multiracial and multicultural society, then we must ensure that each American has an equal claim to public goods and protected rights, and, perhaps most crucially, their right to know.

American journalism is an essential public good. Representative democracy would mean little were the people not capable of informing themselves, sharing ideas with one another, and overseeing those who govern them. It was this understanding, along with a hard-won knowledge of the lengths to which powerful actors will go to suppress the free flow of information and ideas, that led Revolutionary-era thinkers “routinely [to] suggest[] that the ‘Liberty of the Press’ was ‘a great Bulwark of the Liberty of the People’….”Footnote ¹ These lessons have been relearned generation after generation throughout American history. In the 1970s, for instance, Justice Stewart spoke approvingly of investigative journalists’ dogged pursuit of abuses of power, like those that brought down the Nixon presidency.Footnote ² Relating those examples back to the pre-Revolutionary Crown’s efforts to stymie the press, Stewart remarked that the Crown understood all too well that “the free press meant organized, expert scrutiny of government.”Footnote ³ Today, with authoritarianism on the march at home and abroad and with misinformation and disinformation as growing problems,Footnote ⁴ we need a vibrant, professional press more than ever.

And yet, just as we need it most, the American press is in crisis. The troubles are partly sociopolitical, fueled by the same antidemocratic forces that make journalism so essential today.Footnote ⁵ The crisis also has a substantial economic component. As Victor Pickard put it recently, “We no longer have a commercial market that can support the levels of journalism that democracy requires.”Footnote ⁶ He elaborates that the collapse of the traditional revenue model for journalism has had dire consequences: Since 2005, “the U.S. has lost almost one-third of its newspapers and nearly two-thirds of its newspaper journalists … [M]ore than one half of American counties have little or no access to local news.”Footnote ⁷ Pickard aptly concludes that “[t]his isn’t just a journalism crisis: it’s a democracy crisis.”Footnote ⁸

Although no single elixir will save the American press, enhanced public funding is among the tools needed to address its existential crisis. In a sense, this is an old idea. As Martha Minow observes, “[p]ublic resources to support journalism and news have been a feature of American life since shortly after the founding of the nation. Early postal subsidies permitted newspapers to be sent through the mail at reduced rates,” and “[t]axpayer dollars … support public broadcasting.”Footnote ⁹ Still, public support for journalism in the United States is paltry compared to state financial investments in news media in other democratic nations.Footnote ¹⁰ Pickard and Timothy Neff note, for example, that “[a]t $465 million dollars, 2020 federal funding of US public media amounted to just $1.40 per capita. By comparison, countries such as the UK, Norway, and Sweden devote around $100 or more per capita toward their public media.”Footnote ¹¹ Relative to other democracies – indeed, relative to countries that considerably outrank the United States in a leading index of world democraciesFootnote ¹² – the United States has ample room for growth in public media funding.

However, public funding raises the specter of state capture. The concern is a legitimate one, but it is hardly insurmountable. Indeed, as just noted, the United States has maintained some form of support for the news media since shortly after its founding, and some of the world’s strongest democracies far exceed the United States’ level of investment in public media. The solution is not to abandon the idea of public support but to ensure that protections are in place to shield public journalism from partisan or political capture. Such protections necessarily are multi-faceted, with aspects that evolve over time as conditions shift. They include funding-source decisions, legislative and regulatory directives, and informal norms. The governing constitutional framework, too, is a matter of no small importance. In this chapter, I focus on the latter.

Specifically, I explore First Amendment tools to protect publicly subsidized journalism against state capture. Although I emphasize judicial decisions and arguments, I urge readers to keep in mind the larger legal, social, and political frameworks within which such decisions and arguments exist. In other words, courts and litigation comprise but one piece of the anti-capture infrastructure. Furthermore, although constitutional arguments typically center on courts, they can and should be made in other venues as well. First Amendment considerations, including those that I raise here, ought to be weighed not only by courts but also by legislators crafting funding legislation.

My constitutional arguments center primarily on what I call the “anti-distortion principle.” To be clear, the principle I discuss here is different from the similarly named concept that was raised in some campaign finance cases. I say more about the distinction between the two in the accompanying footnote.Footnote ¹³ As I use the term here, the anti-distortion principle is the notion that the government may not impose conditions on subsidized speech that would distort the very nature of the type of speech at issue or the process through which it is created. For example, should a state create a program to fund “investigative journalism on state and local issues important to the community” but prohibit using the funds for stories that “cast the governor in a negative light,” the prohibition would raise valid anti-distortion concerns. The state, one could reasonably object, is purporting to fund investigative journalism while short-circuiting the reporting and editing processes that characterize it. This would enable political actors to use a discipline – investigative journalism – associated with rigorous information-gathering and corroboration practices to launder political messaging. Such message laundering undermines key values associated with the Speech and Press Clauses, including government distrust and checking the powerful.

Neither the concept of anti-distortion nor the importance of public funding is unique to the press. Rather, each is part of a larger phenomenon that I call public knowledge production and that I explored in earlier work.Footnote ¹⁴ Public knowledge producers – which I define very similarly to Vicky Jackson’s definition of “knowledge institutions” – are “those government entities, officials, or employees who, in the ordinary course of their work, engage in ‘knowledge production or dissemination … according to disciplinary norms.’ This includes government scientists, economists, and other disciplinary experts.”Footnote ¹⁵ It also includes publicly employed or subsidized journalists and teachers. As with publicly supported journalism, public knowledge production on the whole fills informational and educational gaps that the commercial marketplace alone cannot provide. Its existence does, however, demand vigilance against state capture.

Given the presence of public knowledge production in the United States – within and outside of the realm of journalism – and given the risks of state capture, it is unsurprising that the foundations of an anti-distortion principle already exist in aspects of free speech case law. Still, the principle requires substantial elaboration, both because its articulation in judicial precedent is underdeveloped and because there are countertendencies in the case law that must be addressed.

The principle’s justification – that is, the reason why distortion is concerning from a First Amendment perspective – is only thinly gestured at in existing precedent. The same is true of the principle’s implementation – in other words, of how one can determine the nature of a type of speech or of an expressive institution and assess whether it has been distorted. Furthermore, applying anti-distortion analysis to journalism implicates the First Amendment’s Press Clause as well as its Free Speech Clause. It also is far from clear where the anti-distortion principle ends and the “government speech doctrine” begins. The latter is the notion that when the government employs personnel or subsidizes private speakers to convey the government’s own message, the First Amendment simply does not apply; the government may impose whatever restrictions it likes on the resulting speech.

In Section 23.1 of this chapter, I elaborate on what the case law presently has to say about both anti-distortion and government speech. Sections 23.1.1 and 23.1.2 discuss cases that entail public knowledge production apart from journalism, whereas Section 23.1.3 focuses entirely on cases involving the press. In Section 23.2, I aim to build out the anti-distortion principle’s theoretical underpinnings, elaborating on why distortion undermines key values associated with speech and press freedoms. In Section 23.3, I draw from existing cases, particularly those involving public or subsidized news media, to identify guidelines that courts and legislatures can use to determine when distortion is afoot.

23.1 What Judicial Precedent Currently Says About Distortion, Government Speech, and State-Subsidized Journalism

23.2 Why Distortion Is a First Amendment Problem

The precedent described above reflects two things about existing free speech case law. First, government speech doctrine is potentially a very expansive means to empower federal and state legislative and executive bodies to cloak political messaging in the vestments of professional expertise – whether journalistic, pedagogical, scientific, or otherwise. Second, extant judicial doctrine contains the makings of an important counter-force – the anti-distortion principle – to guard against such expansion. However, the latter is currently lacking in two important respects. First, the why of anti-distortion – specifically, why distortion is a problem from a First Amendment perspective – is not explained with depth or consistency across the cases. Second, the how of the principle – that is, how one determines whether and when distortion exists – has not been considered with deliberateness, although aspects of it can be inferred from existing cases.

In this section, I consider the why question raised by the anti-distortion doctrine. I explain that distortion is a First Amendment problem for reasons involving both negative First Amendment theory, which focuses on the dangers of speech regulation, and positive First Amendment theory, which focuses on the affirmative benefits of speech and press freedoms. With respect to negative theory, distortion enables the government to pull the wool over the people’s eyes, leveraging its largesse to present political, even partisan messaging as the product of disciplinary expertise. This is a cause for alarm whenever it impacts the expression of public employees or subsidized private actors. There are special bases for concern when the government claims to be funding journalism. Second, when the government purports to fund knowledge production but conditions its subsidies on speech restrictions that have a distorting effect, it undermines the affirmative First Amendment values of the very enterprise that it claims to subsidize. In the case of funded journalism, distortion undercuts journalists’ ability to perform core First Amendment and structural constitutional functions: overseeing the actions of society’s most powerful actors, including government actors, and educating the American public about important issues and events that impact their community and the larger world.

23.3 Identifying Distortion

Even if one supports the principle of anti-distortion in theory, there remains the practical question of how to determine when distortion is afoot. To make matters trickier still, identifying distortion is a two-step process. One must first define the baseline: What is the nature or ordinary practices of the knowledge institution or type of expression at issue? One then must ask whether the challenged condition or directive is reasonably compatible with that baseline.

These are not easy questions, but they are also not impassable ones. Because they are deeply fact-driven inquiries, there is no one-size-fits-all formula to resolve them. One can, however, identify factors for courts, legislatures, and other decision-makers to consider. The existing case law itself is a useful starting point toward this end. Recall from Section 23.1 that although courts have not identified anti-distortion as a distinct legal principle, they have implicitly considered whether distortion exists on a number of occasions. In this section, I draw from those cases to suggest several factors that courts, legislatures, and other decision-makers can use to guide distortion inquiries.

23.4 Conclusion

Neither the First Amendment in its own right, nor courts interpreting it, can make publicly funded knowledge producers impervious to state capture. First Amendment case law does, however, contain a surprisingly rich set of arguments and ideas to grapple with the problem of capture. Most importantly, it contains the seeds of an anti-distortion principle to the effect that the government may not condition funding – whether through employment or through a subsidy on a private actor – in a manner that distorts the nature of the type of speech or expressive institution that it purports to fund. The anti-distortion principle is important in its own right, and as a tool to limit a risk factor for capture – government speech doctrine – that was created by the judiciary itself.

Of course, judicial doctrine and litigation can get us only so far. Anti-distortion arguments grounded in case law are but one tool to support public knowledge production and to protect against its capture by the state. Such arguments most obviously can be wielded in litigation. They can also be invoked in the legislative drafting process to help guide the design of statutes regarding public employment or funding of knowledge producers. More so, the underlying threats against which anti-distortion principles guard – particularly the danger that political actors will launder partisan or political messaging to pass it off as the product of disciplinary expertise – can be raised in public discourse.

Perhaps somewhat counterintuitively, anti-distortion arguments also provide occasion to encourage public knowledge production. This is so for at least two reasons. First, the anti-distortion principle is justified not only by the government distrust associated with negative speech theory but by the positive aspirations of affirmative free speech theories. Second, robust anti-distortion principles are responsive to an argument routinely made against state funding – that is, the risk of capture.

Journalism’s existential crisis casts into sharp relief both the affirmative benefits that anti-distortion principles help to foster and the dangers against which they guard. With respect to the former, recall the arguments that an active press is essential to oversee powerful government and private actors and, more broadly, to make democracy function. Where the market alone cannot provide this public good, some state support is essential; that support itself must be subject to anti-distortion principles to protect the funded reporting’s value. With respect to the latter, government capture of the media bears harms that an anti-distortion principle is essential to guard against. To be sure, the anti-distortion principle is far from sufficient to save journalism. But insofar as public funding is an essential part of any rescue mission, so too is the anti-distortion principle.

Elementary democratic theory holds that self-governance requires a free – and, by implication, a functional – press system.Footnote ¹ However, today, much of the American press infrastructure is being dismantled by a deeply systemic market failure, with little hope for self-correction. While significant democratic deficits have always existed in American journalism, it is becoming glaringly obvious that a purely commercial press system cannot provide for a multiracial democratic society’s basic information and communication needs. At the time of this writing, the United States has lost nearly one-third of its newspapers and two-thirds of its journalists since 2005 – a profound structural crisis that promises to significantly worsen in the coming years.Footnote ² It is no longer debatable that the advertising-dependent business model that supported commercial journalism for well over a century has irreparably collapsed. Systemic alternatives are desperately needed.

If democracy requires a press regardless of its profitability, it is incumbent upon society to develop a rationale for why the government must guarantee a baseline level of news and information for all members of society, not just the privileged few who happen to live in affluent neighborhoods. Otherwise, we guarantee a future of informational redlining and market censorship in which entire communities will be consigned to living permanently in news deserts, effectively disenfranchised from media production, dissemination, and consumption – and from fully participating in everyday civic life.Footnote ³

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

With an eye toward such a lofty objective, this chapter aims to articulate a positive-rights paradigm that marshals contemporary, historical, and international legal frameworks to argue that government should have an affirmative duty to guarantee meaningful access to news and information for everyone. Drawing from democratic, legal, and economic theories, the chapter builds on a long lineage of argumentation – from Alexander Meiklejohn and Jerome Barron to more recent arguments advanced by C. Edwin Baker and Martha Minow – for why the First Amendment does not forbid government interventions that promote journalism. If we assume that press freedom is rendered meaningless without a press to protect, we arguably should go even further to compel the government to make targeted and democratically determined interventions into the media marketplace to guarantee public alternatives when private commercial media institutions fail to serve democratic needs.Footnote ⁵

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

24.1 Why We Need Positive Rights

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

Positive rights typically require state action to provide a particular service or benefit, whereas negative rights require the government to refrain from doing something. As political theorist Emily Zackin succinctly summarized: “Negative rights are the bases of demands for restraint by the government, while positive rights are the bases of demands for intervention.”Footnote ⁷ In highly inegalitarian societies such as the United States, achieving positive rights necessitates redistributing power. The Australian legal scholar Andrew Kenyon observed that positive rights promote participatory democracy because they “aim to give voice to the marginalized and support material and social preconditions for participation [in society].”Footnote ⁸

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

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

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

Leading constitutional law scholars have long acknowledged the government’s necessary role in promoting positive press freedoms that considered not just the freedoms of the press owners but also those of the public. For example, Thomas Emerson suggested that subsidies might be necessary to enable citizens to voice opinions in the commercial press and that the government had an “affirmative power” to support infrastructures that protected a public’s “right to hear.”Footnote ⁹ Elsewhere, he argued for an “affirmative First Amendment” through which government intervention could be justified if it promoted greater opportunity for expression and increased diversity of viewpoints and voices in the public sphere.Footnote ¹⁰

More recently, former Harvard Law School Dean Martha Minow argues in her book, Saving the News, that while the First Amendment forbids abridgement of US citizens’ freedoms, it does not forbid the government from intervening to ensure such freedoms exist. Minow also suggests, per a review of the extant literature, that “[t]he First Amendment’s presumption of an existing press may even support an affirmative obligation on the government to undertake reforms and regulations to ensure the viability of a news ecosystem.”Footnote ¹¹

Similar arguments for more positive rights vis-à-vis the press have accumulated in recent years. In 2010, for example, former Columbia University President Lee Bollinger authored an op-ed in The Wall Street Journal titled Journalism Needs Government’s Help.Footnote ¹² Around the same time, other legal scholars argued that press subsidies are not only consistent with US history and international standards but also constitutional.Footnote ¹³

Similarly, scholars have long argued that the mere absence of state intrusion does not automatically guarantee press freedoms.Footnote ¹⁴ These arguments are buoyed by a continuous – if often overlooked – tradition of legal discourse that legitimates affirmative government intervention to protect the press. Moreover, this affirmative tradition sees such positive rights as superseding the protection of individual liberties and serving as a kind of social protection of the press.

These special protections are further evidenced by what appears to be a constitutional carve-out for the unique democracy-enabling status of the press as an institution – notably, the only private industry guaranteed such special constitutional protections. One often-cited example is Supreme Court Justice Potter Stewart’s argument that First Amendment protections exceed individuals’ speech freedoms to treat the press as an autonomous and necessary institution, thereby rendering support for a free press “a structural provision of the Constitution.”Footnote ¹⁵ At the very least, press freedom, in this context, can be interpreted as serving society as a whole and not merely individual press owners.Footnote ¹⁶ Moreover, under this interpretation, the press can be seen as engaging in special institutional First Amendment activities and performing an important proxy role for broader publics.Footnote ¹⁷

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

24.2 An Unfinished Project

Throughout the twentieth century, democratic theorists, media critics, reformers, policymakers, and social movements wrestled with but largely failed to establish a firm positive theory of press freedom.Footnote ³⁰ This outcome was less the result of an ideological constraint or lack of political imagination – though in many cases, these deficiencies were certainly contributing factors – and more a consequence of the repressive backlash against a social democratic media reform project in the 1930s and 1940s.

The postwar 1940s witnessed a roiling debate around determining the normative role of the press in a democratic society. For example, the Hutchins Commission on Freedom of the Press convened a group of the nation’s leading intellectuals to define press freedoms and formulate the best means of protecting them. Despite issuing clear articulations of valuing positive rights in defining press freedoms – especially those put forth by William Hocking, who, in his solo-authored contribution to the Commission, likened the press to that of a “public utility in private hands,” speculating it should be treated as a common carrier and promising a public right to the pressFootnote ³¹ – the Hutchins Commission ultimately fell back on mostly industry-friendly positions. Their conclusions later became narrated as the “social responsibility” model of the press, which, in many ways, recapitulated the libertarian model while holding out some hope for a more positive-rights-based model.Footnote ³²

The debates of the 1940s over defining press freedoms coincided with a reckoning around the failures of commercial broadcast media.Footnote ³³ After reformers mostly failed in their efforts to establish a more social democratic vision for media, their policy battles over radio’s normative role in a democratic society culminated in codifying some modest positive freedoms by the end of the decade, such as those represented by the much-maligned Fairness Doctrine.Footnote ³⁴

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

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

This reasoning, however, did not prevail several years later with regard to print media in the Tornillo decision, in which the Supreme Court unanimously struck down a Florida law that granted the positive right of a “right to reply” for political candidates whose personal character had been impugned by newspapers.Footnote ³⁹ Hence, positive rights did not extend as far to the press as they had with broadcasting. Other media, such as telecommunications, have seen a mixed legacy, including the pronouncement at times of government interventions to support positive freedoms, especially in the areas of state action doctrine, must carry obligations, and common carriage.Footnote ⁴⁰ Positive-rights discourse also has been central to the ongoing debates over net neutrality, which the Federal Communications Commission recently reinstated.Footnote ⁴¹

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

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

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

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

24.3 Positive Rights in State Constitutions

In seeking out more expansive articulations of the necessity for protecting positive freedoms, especially as they relate to the press, we may look at how they are rendered in state constitutions.Footnote ⁴⁴ Indeed, more positive equivalents of this doctrine are readily found in state constitutions across the country. Many state constitutions include articulations of positive rights protecting speech and press freedoms that were adopted prior to the existence of the federal First Amendment. Some of these statements and declarations offer greater protections than those grounded in the U.S. Constitution and sketch out a more expansive notion of the government’s affirmative duties toward press provisions.

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

The press-specific provisions of many state constitutions have mirrored the federal First Amendment, but some contain language that is considerably more grounded in positive rights. For example, Steven Calabresi and Sarah Agudo note that Missouri’s “expression clause” states that “the free communication of thoughts and opinions is one of the invaluable rights of man, and that every person may freely speak, write and print on any subject.”Footnote ⁴⁵ Many other states have similar clauses that are remarkably expansive in their positive rights-oriented framing of expressive rights.

The Pennsylvania constitution goes so far as to feature language that seemingly guarantees public access to printing presses for government reporters. In Article 1, Section 7, the Pennsylvania constitution states: “The printing press shall be free to every person who may undertake to examine the proceedings of the Legislature or any branch of government….”Footnote ⁴⁶ Specifically stressing the importance of public investigation into matters of public interest, this wording suggests special protections for the press’s unique watchdog role. Such articulations of press freedoms in Pennsylvania, which emerged within discourses that imply the importance of an institutional press, inspired strong positive language in other state constitutions.Footnote ⁴⁷ For example, the Kentucky state constitution also declares that “[p]rinting presses shall be free to every person who undertakes to examine the proceedings of the General Assembly or any branch of government.”Footnote ⁴⁸

New York state courts have often gone beyond the boundaries delineated in the federal First Amendment to extend press freedom protections to journalists and media institutions.Footnote ⁴⁹ Their embrace of positive rights is even more pronounced around government guarantees for public education. For example, the New York Court of Appeals has interpreted the state constitution’s Education Article to mean that the state is required to provide students with the opportunity for a “sound basic education.”Footnote ⁵⁰ It also seems clear that the New York state constitution directs the state to maintain and support a system of free common schools that serve a social, collective right and prevent education from being dictated by class-based inequities.

Some states’ amenabilities to expansive interpretations of press freedoms might signal openness to new arguments even where positive-rights analysis has not yet been embraced. For example, California has long been a national leader in demonstrating greater protections for press freedom than federal law, especially for student journalists and student media.Footnote ⁵¹ While we might see protections for student journalists as an example of negative rights in protecting them from obtrusive government meddling and censorship, this case also demonstrates how states can provide greater press protections than the federal government. It also highlights states’ capabilities for expanding the legal and statutory understanding of who qualifies as a protected member of the press. California also contains positive language for the public having a “right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny….”Footnote ⁵²

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

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

24.4 Positive Rights in International Codes and Laws

Generally speaking, positive freedoms are more established in press-related doctrines and codes internationally compared to the United States. One notable example is Article 19 of the United Nations Declaration of Human Rights – sometimes associated with the right to communicate – which codifies the right to “receive and impart information and ideas through any media.”Footnote ⁵³ This code has long inspired international media reform efforts, often used to advocate for expanding public access to media institutions.

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

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

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

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

Political scientists have noted that Article 5 bears striking differences compared to the U.S. First Amendment.Footnote ⁶⁰ Its protections clearly are not limited to prohibiting state interference, suggesting that its provisions could be invoked against nonstate actors beyond governments. Furthermore, Article 5 is much more specific in protecting rights of speech against censorship and mentions modern types of mediated communication, such as film and broadcasting.

The German constitution also devotes a fair amount of language to defining public broadcasting, even constitutionally mandating its existence, and conferring upon it a preferred status over private and commercial broadcasters to prevent market censorship.Footnote ⁶¹ This acknowledgement that a commercial media system is structurally ill-equipped to provide for a democratic society’s information needs is strikingly absent in American legal doctrine. Drawing from international articulations of positive rights and the government’s affirmative duty to protect them can help denaturalize the US libertarian paradigm that continues to impede structural media reform and press protections.

24.5 Potential for Reorienting the First Amendment

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

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

The various traditions sketched above may contribute to a foundation for advocating for a more positive First Amendment. Arguably, the most promising angle toward advancing positive press freedoms is to draw from the examples found in state constitutions. In theory and in practice, the abstention doctrine, as well as principles associated with federalism in general, grant states the power to use their own constitutions in interpreting and effectuating state laws. State constitutions often provide more expansive rights, especially around issues such as public education, environmental protection, and labor. Although states must adhere to basic federal minimum standards and guidelines, the U.S. Supreme Court lacks authority to overturn state legal decisions in most cases.Footnote ⁶² As one legal textbook notes, courts have often interpreted state constitutions “to more broadly protect and supplement key fundamental rights and protections.”Footnote ⁶³ This check on the federal government is, in fact, an intended feature that allows states to exceed federal standards and to offer broader rules and protections.

This balance of legal power helps explain an increasing trend in recent years toward turning to state courts and state constitutions to protect individual rights. Certainly not all these legal movements have worked to advance positive freedoms, especially in cases involving reproductive rights. But some measures have been quite progressive, such as targeting climate change in the state of Montana, where a state court judge argued in a 2023 case that it violated the public’s state constitutional right “to a clean and healthful environment.”Footnote ⁶⁴

Decades ago, Justice William J. Brennan Jr. advocated for the strategy of relying on state constitutions to advance rights far exceeding protections provided for in the Bill of Rights. He argued that federalism affords us with “a double source of protection for the rights of our citizens,” and we can turn to state courts and constitutions – which should be seen as a “font of individual liberties” – when the Supreme Court is too limited in its legal interpretations.Footnote ⁶⁵ Given the US federal government’s caution and conservativism, it stands to reason that, in the near term, at least, we should focus on state-level initiatives based on a public right to the press that would mandate state governments to ensure the existence of local journalism in all communities. If such a protection were to take hold in several states, perhaps it would someday be embraced at the federal level.

While using a rights-based argument to advocate for guaranteed social benefits is open to reasonable criticism,Footnote ⁶⁶ it nonetheless lends some hope. This is especially true once we look beyond the federal level, such as the recent spate of state-level laws aimed at protecting local journalism that state legislatures are considering or have already implemented in places like New Jersey, Washington, DC, California, New York, Illinois, and Wisconsin. Under these plans, news outlets prioritizing local journalism receive various kinds of public subsidies and grants from state governments, and more such initiatives will likely take root before long. But until we scale up these plans to cover all communities across the entire nation, we still need more far-reaching plans for the long term.

24.6 The Need for Non-reformist Media Reforms

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

With this aim in mind, we might look to “non-reformist media reforms” that seek to ultimately transform journalism and significantly lessen, or remove altogether, the commercial pressures and logics that decimate and degrade our media at a structural level, from incentivizing low-quality journalism online to hollowing out newsrooms throughout the country.Footnote ⁶⁷ Loosely derived from the political theories of André Gorz, this framework privileges social needs over profit imperatives.Footnote ⁶⁸

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

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

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

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

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

In the final analysis, guaranteeing media access for all members of society requires a robust public media system. Working towards this universal service mission, we can leverage already-existing public infrastructures as initial building blocks for a new public media system. These may include post offices, libraries, public access media, public broadcasting stations, universities, and other public spaces and institutions. However, given that the United States is a global outlier for how little it funds public media in general, more ambitious investments – as well as structural reforms – are still necessary.Footnote ⁶⁹

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

24.7 The Long Road to Reform

The precise nature of today’s media-related challenges and threats to democratic governance are distinct from those in years past. This is true even compared to those that existed fifteen or twenty years ago at a time when Jerome Barron’s work was enjoying renewed attention and C. Edwin Baker’s work was central to a resurgent media reform movement.Footnote ⁷⁰ During this juncture in the early 2000s – a time of war and neoliberal hegemony – many media reformers and policymakers perceived the most severe threat to a democratic press as the increasing concentration of media ownership. More specifically, they decried the growing monopolistic power of media conglomerates as grossly limiting the diversity of the public sphere, and much of the strategic thinking was focused on how to reign in or crush these media monopolies.

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

In many ways, the market’s hidden hand in media systems is that of a censor. As such, its pernicious effect on journalism must be minimized. This “market censorship” argument is central to making the case for government intervention. As C. Edwin Baker, James Curran, Sue Curry Jansen, and other political economists have argued for many years, the market actively and predictably filters out specific voices, distorts coverage, and underserves entire communities along socioeconomic and racial lines.Footnote ⁷¹ Government intervention on behalf of media that effectively ameliorates this discrimination would, in fact, be promoting a kind of negative liberty by preventing economic factors from silencing voices, discriminating against particular viewpoints, and barring entire groups from full participation in democratic society.

That the violence of the market against the press is routinely accepted as part of the natural order of things is striking. When authorities forcibly shut down newsrooms and oppress journalists – as was the case when local police raided the offices of the Marion County Record, a small weekly newspaper in Kansas, in August 2023 – such actions justifiably draw intense outcry and condemnation from news organizations and from the public in general.Footnote ⁷² But when the commercial market does essentially the exact same thing – dismantling local media outlets and marching journalists out of newsrooms onto the street – we resign ourselves to this silencing of the press. It is unfortunate, we may tell ourselves, but the market has spoken, and there is little we can do.

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

Fortunately, even if often absent from the dominant liberal policy consensus, creative and large-scale ideas for structural reform are accumulating.Footnote ⁷³ For example, increasing numbers of analysts and activists argue for transitioning platforms into public utilities by devolving platform ownership and control to tech workers or users as cooperatives.Footnote ⁷⁴ While some advocates have called for breaking up platform monopolies into smaller firms or forcing them to share more advertising revenues with media producers, others have gone even further by advocating for an entire “public stack” in which each layer of our digital media system – including news media publishers, social media platforms, and even the pipes that bring internet services to our homes – is decommodified and radically democratized.Footnote ⁷⁵

Towards this aim, one compelling model is the Local Journalism Initiative, which would enable people to vote on allocating funds to local news organizations of their choice, thereby guaranteeing competition between multiple newsrooms in every county.Footnote ⁷⁶ To create the massive resources needed to launch such a program, the journalist John Nichols has called for a “Marshall Plan.”Footnote ⁷⁷ Similarly, The Washington Post columnist Perry Bacon recommends spending $10 billion annually to support 200 new journalists in each US congressional district.Footnote ⁷⁸ I have called for establishing in every community a “Public Media Center,” a new type of anchor institution that is federally guaranteed but locally owned and governed.

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

The drafters of the First Amendment could not have anticipated such a hypercapitalistic, corporate-dominated media system developing in the United States.Footnote ⁷⁹ They could not have predicted systemic market failure because their political economy was so radically different from that which exists today. The eighteenth-century press was not nearly as market-driven and advertising-dependent as it would become in the twentieth century. From the framers’ vantage point, it could be safely assumed that the publishers’ interests and the public’s interests (at least among those who were seen as full-fledged members of the polity) were one and the same against an all-powerful state.

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

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

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

In colonial America, a small network of local newspapers proved crucial in the lead-up to the Revolutionary War. They facilitated the exchange of information between the colonies, fostering a collective sense of identity among politically distinct entities.Footnote ¹ They also spread news of British injustices, creating a shared set of grievances that ultimately coalesced into more united opposition to foreign rule.Footnote ² This circulation of news throughout the colonies “made the American Revolution possible.”Footnote ³

Yet these crucial information exchanges did not occur on their own. Rather, they were the product of deliberate government intervention. In 1754, Benjamin Franklin served as the postmaster general in the colonies under the British Crown.Footnote ⁴ He decided to exempt newspaper-to-newspaper exchanges from postage and delivery fees. Under this policy, printers could send their editions to one another through the mail at no cost.Footnote ⁵ Congress later codified this rule with the enactment of the Postal Act of 1792. The statute also permitted newspapers to send issues to their subscribers at a lower rate.Footnote ⁶ Collectively, these interventions facilitated the free exchange of ideas and created a vibrant public sphere for intellectual discussion and debate.Footnote ⁷ The number of newspapers proliferated.Footnote ⁸

Since then, the government has intervened in countless ways to support the press. It has offered various forms of financial support, such as tax subsidies and grants.Footnote ⁹ It has also recognized new property-like interests, such as “hot news,” in order to allow media organizations to seek a return on their investments in newsgathering.Footnote ¹⁰ It has invested substantial resources in critical information infrastructure, such as telegraph and radio cables, satellites, broadband internet cable, and more.Footnote ¹¹ And it has engaged in myriad forms of regulation that have facilitated growth in media, such as creating rules to manage and allocate broadcast spectrum.Footnote ¹²

Yet this effort takes on new urgency today. The American press is in a period of decline. Since 2005, the nation has lost roughly a third of its newspapers and nearly two-thirds of its newspaper journalists.Footnote ¹³ Local newspapers have been especially hard hit, leaving large swaths of America without any local news coverage at all.Footnote ¹⁴ Members of the press have described it as an “extinction-level event.”Footnote ¹⁵

This has prompted a wave of new efforts to save the local press. Many of these have been undertaken voluntarily by the media. Press institutions have tried innovating to attract back advertisers and subscribers. These efforts have included increased investments in video and data-driven journalism,Footnote ¹⁶ new financial structures like journalism cooperatives or direct public offerings to subscribers,Footnote ¹⁷ and an expansion of nonprofit, digital-only outlets.Footnote ¹⁸ They have also included the sale of struggling media institutions to wealthy individuals.Footnote ¹⁹ But these private-sector and internal reforms have had only limited success and have not yet stemmed the decline of the local press.Footnote ²⁰

In response, scholars, policymakers, and journalists have called for the government to take more aggressive steps to bolster the press, especially the local press. Many interventions have been proposed or adopted in recent years. They include intellectual property rights, tax credits, subsidies, prizes, and grants.Footnote ²¹ These reforms have also been proposed by a wide range of government actors, including international organizations; foreign countries; and federal, state, and local legislators.Footnote ²²

Yet there has been little effort to develop an overarching framework to compare and evaluate these many different policy interventions.Footnote ²³ This chapter begins this work. It argues that the local news crisis should be understood as a kind of innovation failure, one that calls for solutions drawn from areas of the law that have long grappled with similar problems. In markets like pharmaceuticals and technology, policymakers often employ “innovation policy pluralism,” or combinations of intellectual property protections and other government tools, such as prizes and grants.Footnote ²⁴ Such combinations harness both free-market forces and government regulation to foster socially valuable services in productive and efficient ways.Footnote ²⁵

Drawing on the work of scholars who have examined various combinations of innovation policy levers in other contexts, we map these existing and proposed press interventions onto this innovation policy rubric. Specifically, we rely on an innovation policy framework developed by scholars Daniel Hemel and Lisa Larrimore Ouellette. We adopt this framework to plot various press policy proposals across two indices: whether the interventions are government-sponsored or market-driven; and whether the innovation reward is allocated ex ante or ex post.Footnote ²⁶

Consider an example. The Postal Act of 1792Footnote ²⁷ represents a government intervention designed to bolster innovation and, specifically, press innovation.Footnote ²⁸ Congress set the price of the subsidy and determined who would shoulder the costs – in this case, private letter-senders who paid higher postage fees.Footnote ²⁹ Further, the incentive was imposed ex ante: The government offered the subsidy in advance to any qualifying newspaper, regardless of their business model, focus, or level of success.Footnote ³⁰ We argue that each press policy intervention can be plotted along these two dimensions. Further, we suggest that categorizing the various press policy interventions in this way permits a comparison among the different policy levers and an analysis of how these levers can be combined and layered to meet different innovation goals.Footnote ³¹

After mapping out these various proposed press policy interventions, we conclude by suggesting that intellectual property and other market-driven mechanisms alone are insufficient to ensure continued local news creation in today’s media landscape. Yet a pure government-funding model is also inadequate. Instead, intellectual property solutions should be combined with other government incentives like grants, subsidies, tax benefits, and prizes.Footnote ³² In future work, we intend to evaluate the benefits and drawbacks of combining them in different ways at various levels of the local news supply chain by drawing on interventions in other industries, such as pharmaceuticals, that have also suffered from innovation failures.Footnote ³³ This chapter lays the descriptive groundwork that will allow us to advance these normative claims.

It does so in three sections. Section 25.1 describes the innovation policy framework. It then argues that this rubric can be a useful lens for evaluating press policy proposals. Section 25.2 applies this framework to various existing or proposed press policy interventions. It outlines five categories of regulatory interventions when it comes to the press: market-set, ex post rewards; market-set, ex ante rewards; government-set, ex post rewards; government-set, ex ante rewards; and hybrid approaches. It then concludes by briefly examining the implications of the press policy pluralism framework. It outlines our plans for future research by offering early lessons learned by mapping press policy innovations onto the policy pluralism rubric.

25.1 Innovation Policy Levers

“Innovation” is a nebulous concept. Among policymakers and in popular discourse, it usually refers to the fostering of technological or scientific breakthroughs. But, as scholars of intellectual property contend, innovation can and should be a broad umbrella, referring to the production of all “knowledge goods.” It encompasses anything that contains ideas and/or information, including but not limited to, “[b]ooks, blueprints, films, and pharmaceutical formulas.”Footnote ³⁴

By adopting this approach, we treat journalism as a form of innovation.Footnote ³⁵ As discussed further below, the market failures that have plagued the news industry correspond closely to the market failures known to occur in other innovation-focused industries, such as technology, pharmaceuticals, and entertainment.Footnote ³⁶

Indeed, innovation in general is often understood to require some kind of legal or regulatory intervention to occur effectively. The law involves itself in innovation not simply because many innovations are socially desirable but because the production of knowledge goods commonly poses economic difficulties. Knowledge goods generally suffer from a classic public goods problem: They can be used simultaneously by many without leading to scarcity (nonrivalrousness) and their use cannot inherently be limited to some and not others (nonexcludability).Footnote ³⁷

In more concrete terms, a song or a pharmaceutical formula or a piece of investigative reporting can be copied and shared indefinitely without any inherent way for the creator to police such sharing. This runs in contrast to tangible goods – from apples to airplanes – that can only be used by one person at a time (rivalrousness) and, by virtue of the good’s physical nature, can be protected from use by nonowners (excludability). Many contend that, because of the problems of nonrivalrousness and nonexcludability, innovators will lack an incentive to produce socially valuable knowledge goods unless they are guaranteed some possibility of financial reward for investing the time and money that innovation generally requires.Footnote ³⁸

Most notably, patent and copyright law provide this financial reward by granting innovators a limited right to exclude access to their innovations and, therefore, charge a market-based price. Without this property right, the theory goes, innovators would lack the incentive to produce valuable knowledge goods. But property-based interests are not the only way this innovation incentive can occur. The government can also directly reward innovators through grants, prizes, or tax credits.

Legal scholars, in particular Lisa Larrimore Ouellette and Daniel Hemel, have categorized the variety of ways that a government can facilitate “innovation policy.”Footnote ³⁹ Specifically, they note the distinctions between when the innovation reward is set temporally (ex post vs. ex ante) and who actually sets the reward amount (market vs. government).Footnote ⁴⁰ A brief discussion of the four categories follows.

Market-Set, Ex Post Rewards. This category includes any intervention that grants an innovator the right to exclude and thus charge a market price. Patent, copyright, and other forms of intellectual property are all examples of such policy levers. Patent law, for example, grants inventors twenty years of exclusivity for nonobvious, useful innovations.Footnote ⁴¹ Thanks to this exclusivity, the patent owner can earn a financial reward through licensing the invention or through producing the invention itself.Footnote ⁴²

The compensation structure of intellectual property is ex post because the innovator will only be able to demand compensation if they successfully produce a knowledge good that the public actually finds valuable. Simply attempting to write a novel or invent a new pharmaceutical is not sufficient; the innovator must actually produce something of value. The reward is market-set because the precise compensation will be dictated by market demand. The government itself is neutral as to the specific innovation and the kind of compensation it warrants.Footnote ⁴³

Market-Set, Ex Ante Rewards. This category includes tax preferences and other interventions that lower the costs of doing business for innovators. For example, the tax code explicitly allows researchers to deduct certain expenses related to research and development.Footnote ⁴⁴ Through these preferences, innovators are incentivized to spend more money more quickly on research than would otherwise be financially feasible.

Tax preferences are ex ante because they are provided neutrally to anyone engaged in a specific form of innovation before the results of the innovative activity are known. But the reward is still dictated by the market because the benefits of a tax preference are meaningless if innovation does not ultimately yield a marketable product. The preference may enable a quicker route to that possibility, but it does not guarantee it.Footnote ⁴⁵

Government-Set, Ex Post Rewards. This category includes government prizes that promise compensation if a specific innovation goal is achieved. For example, if the government is concerned about a specific disease, it may set a prize for the successful development of a vaccine for that disease.Footnote ⁴⁶

A prize operates ex post because only successful achievement of the prize’s criteria will yield a reward. But, unlike a patent, the reward is government-set; compensation can be received regardless of whether the innovation has market value.

Government-Set, Ex Ante Rewards. This category includes direct spending by the government on innovation. Such direct spending can be done through grants or through direct government ownership of entities engaging in research. Examples of the former include funding provided to private researchers by the National Institute of Health, and examples of the latter include direct government-funded research at the Department of Energy’s National Laboratories.Footnote ⁴⁷

Through such direct funding, research and development can occur without regard to market-driven returns on investment. But, in contrast to prizes, the reward is not conditioned on a specific successful outcome. Thus, the reward is government-set because the government makes the compensation decision, but it is ex ante because the reward is given before the government knows whether the innovative activity has actually proven fruitful.

***

These categories provide a helpful heuristic for making sense of various innovation policy proposals in any industry focused on the production of knowledge goods, including, as the next section argues, the press. It is important to note, however, that the categories are more ideal types that can encompass a variety of policy arrangements. As Hemel and Ouellette note, many actual interventions operate on a spectrum between government-set and market-set rewards and even between ex ante and ex post reward settings.Footnote ⁴⁸ Moreover, specific policy interventions can entail intricate combinations of different innovation strategies. For example, government-funded researchers may be permitted to also seek a patent – a mixing of patent and grant strategies. Or the government might license a pharmaceutical patent at a market-set price and then distribute the corresponding medicine for free – a matching of a market-set reward with government-driven allocation. In addition to discussing how the four primary innovation policy categories already operate in the press landscape, some of these combinations are also discussed in the next section.

25.2 Innovation Policy and the Press

For much of the nation’s history, the press has been governed largely by market forces.Footnote ⁴⁹ Technological innovations throughout the 1800s caused publishing costs to fall, making newspapers more widely available to the masses.Footnote ⁵⁰ By the end of the 1800s, media magnates like William Randolph Hearst and Joseph Pulitzer had established media empires through the sale of salacious and scandal-ridden “yellow journalism” papers.Footnote ⁵¹ The industry continued to grow from there. Newspaper advertising revenue grew from roughly $3.7 billion in 1960, to $14.8 billion in 1980, to $48.7 billion in 2000.Footnote ⁵²

Yet around the turn of the millennium, the press’s long-standing financial model began to break down. The invention of the internet brought a series of cascading financial, technological, and cultural changes that disrupted the media’s financial viability. Job and real estate listings had long subsidized news reporting.Footnote ⁵³ But the internet allowed for the disaggregation of classified advertisements from journalism products.Footnote ⁵⁴ Further, critical advertising revenue migrated online to other platforms.Footnote ⁵⁵ Many newspapers and magazines also offered their publications for free online. Readers became accustomed to accessing news without paying for the content, and it became difficult to later reshape consumer expectations again.Footnote ⁵⁶

Local news outlets were hardest hit by these developments, especially local newspapers. Since 2005, 2,900 newspapers have closed.Footnote ⁵⁷ Many that remain are now “ghost newspapers,” with little or no staff and limited original reporting.Footnote ⁵⁸ More than half of American counties now have no local newspaper or only a single paper,Footnote ⁵⁹ and most of the existing local newspapers today are published only weekly.Footnote ⁶⁰ The rise of digital-only outlets has not come close to making up for this loss.

Against this backdrop, governments have begun to experiment with new and expanded forms of financial support for the press. The press has always functioned with some measure of intervention and assistance from the government in the United States, although the government’s support has traditionally been limited.Footnote ⁶¹ Given the depth and severity of the current local news crisis, however, many government actors, both domestically and abroad, have begun experimenting with new forms of press assistance. Many advocates have also proposed innovative new forms of support that have not yet been implemented. This section surveys these efforts, categorizing them according to the innovation policy pluralism framework developed by intellectual property and innovation law scholars.

25.3 Conclusion: Towards a Press Policy Framework

A range of innovation policy levers are already at play in the press ecosystem. From copyright and other intellectual property protections, to tax credits, to grants, to prizes, the government has frequently intervened to encourage the creation of media products. As the last section explained, categorizing these interventions as ex post or ex ante and as government-based or market-based showcases that they fall within the innovation policy pluralism framework that has been used in other industries where innovation is prioritized.

We hope this categorization is valuable in and of itself, but we also believe that innovation policy pluralism provides a necessary path to tackling some of the biggest problems facing the press today. A full discussion of these issues – including analogizing to interventions in other industries that frequently suffer from innovation failures – will be the subject of future research. But we conclude here by briefly offering some preliminary observations.

First, and perhaps most obviously, the press must be understood as a form of innovation that can benefit from numerous, and overlapping, policy interventions. The choice here should not be between market-based remuneration and full government control of the media. Rather, a range of more subtle interventions can be used in combination to solve the specific problems facing the media. For example, just as financially lucrative pharmaceuticals – like weight loss drugs – can generally be incentivized solely using market-based interventions, like patents,Footnote ²⁰⁷ so too large, national media organizations may be able to survive primarily by using market-based interventions, like copyright or press publishers’ rights.Footnote ²⁰⁸ But just as other pharmaceuticals, such as “orphan drugs” for rare diseases, often require direct government funding,Footnote ²⁰⁹ so too media in smaller, less established markets may require more direct grants in order to successfully operate.Footnote ²¹⁰

Second, paying attention to both the timing and institutional nature of a press policy intervention may help with weighing the pros and cons of an intervention, including First Amendment implications. While many are naturally skeptical of government control of the press,Footnote ²¹¹ not all government intervention is the same. The government, for example, can intervene using broadly applicable tax credits for media organizations. If structured properly, such an approach can provide a necessary financial boost, while still trusting the market to ultimately allocate rewards to media products based on public demand.Footnote ²¹² This might help ensure the government does not engage in content- or viewpoint-based discrimination in choosing how to allocate funding, while still recognizing that the press cannot survive if forced to shoulder all of the harsh realities of a market-focused business model.

Third, the question of innovation incentives can and should be decoupled from the question of allocation. Scholars and policymakers have criticized intellectual property and other forms of market-based pricing for failing to account for distributive justice and other values.Footnote ²¹³ Considering the role of the press in fostering democratic engagement, this concern certainly also applies to media products.Footnote ²¹⁴ But the government can step in in subtle ways to enable broader distribution of press products, even if incentives are market focused. Just as the government may purchase a vaccine patent at the market price and then distribute the vaccine for free, the government can (and has, in the case of public libraries and education institutions) purchase press products at market-based prices and then allocated those products for free.Footnote ²¹⁵ Such an approach may be particularly valuable since it frees the press’s decision making from government supervision but still enables broad access to media products.Footnote ²¹⁶

Fourth, and finally, new interventions may be necessary to successfully solve the many financial problems facing the press, especially in an age of platform-based intermediation and increasing public distrust of the media in general. The numerous interventions in other innovation-intensive industries like pharmaceuticals, music, or technology – such as compulsory licensing, various grant and tax credit programs, and new or adapted intellectual property rights – could be mined to discover promising solutions to the crises facing the press. These examples demonstrate that innovation in general is rarely a one-size-fits-all policy problem, and solving the problems facing the media will be no exception.

Reports of declining local news have become all too familiar.Footnote ¹ The crises in the news ecosystem are numerous: The funding model for local news has collapsed as advertising and eyeballs have migrated to online social media platforms.Footnote ² Digital platforms and partisan media outlets are enabling (not halting) the rise in misinformation and disinformation. Private equity companies, committed only to short-term profits, are purchasing and strip-mining even profitable local news outlets. As a result, the public’s trust in conventional (and fast disappearing) news outlets is declining rapidly.Footnote ³ Meanwhile, these patterns of consumption and distrust of information sources are reflecting and contributing to our social and political divisionsFootnote ⁴ as digital platforms continue to expose people to disinformation and misinformation, with little progress in redressing these problems.Footnote ⁵

Since I published on the issues a few years ago, these trends have only continued and, indeed, accelerated.Footnote ⁶ I argued then, and still believe, that the U.S. Constitution’s First Amendment – including the Speech and Press Clauses – recognizes the functions of newsgathering and circulation as fundamental to the projects of self-government.

Practices that once sustained vibrant newsgathering and distribution ecosystems have now been disrupted and are in jeopardy in the wake of the practices of social media platforms, the behaviors of private equity investors, and the choices made by media entities themselves. With a particular focus on local news, this chapter first sketches federal constitutional and governmental support of newsgathering and circulation; then turns to current sources of disruption and potential constructive reforms; and finally identifies some promising developments and further questions that they present.

26.1 Affirmative Governmental Support

Many of the Constitution’s framers recognized the importance of free speech and the press to self-government and freedom from tyranny.Footnote ⁷ In their writings and in their actions, James Madison, John Adams, Thomas Paine, George Washington, and Thomas Jefferson emphasized the vital importance of the freedoms of speech and of the press to democracy and freedom.Footnote ⁸ The First Amendment’s freedoms provide a distinct bulwark against autocracy and a foundation for self-government by the people, which are key rationales for their protection.Footnote ⁹

The federal Constitution’s guarantees of free speech and press curb governmental restrictions, but do they also entail positive duties? Courts may not be well-positioned to articulate or enforce governmental duties affirmatively to assist free speech and press, but the Constitution is not only directed to courts. Those who swear allegiance to the Constitution and all who take seriously the survival of the government it established should understand constitutional commitments as obliging actions that respect and support both speech and the press.Footnote ¹⁰ These duties could include taking steps to strengthen the viability and reliability of newsgathering and distribution, as demonstrated by the actions of the federal government from the start and through time.

The Press Clause is the only provision in the Constitution that explicitly protects a private industry. But in practice, the federal government throughout history has done more than simply shield the press from governmental restrictions.Footnote ¹¹ Congress established discounted postal rates for newspapers and the free exchange of newspapers between news printers and publishers.Footnote ¹² Subsequent governmental support shaped communication, including the sharing of news, through the telegraph, telephone, computer, and the internet.Footnote ¹³ And the government constructed the system of broadcast licenses, the regulation of cable, the antitrust laws molding the communications industry, the Newspaper Preservation Act of 1970, the Freedom of Information Act, the Public Broadcasting System, and other federal policies.Footnote ¹⁴ State and local governments have also supported newsgathering and circulation.Footnote ¹⁵

The constitutional guarantees of free speech and free press are primarily justified by their support of democratic self-governance, yet a nonviable press poses a grave threat to Americans’ ability to engage in self-governance.Footnote ¹⁶ The goal of safeguarding democracy through the existence of countervailing powers underlies both the separation of powers among the three federal branches and the division of power between the federal government and the states. The press and the private sector serve as yet another countervailing power.Footnote ¹⁷ Moreover, state constitutions, many of which were drafted before the federal Constitution, embrace positive duties on government to support the press.Footnote ¹⁸ The duty to take action to safeguard the press hence has roots in this constitutional rationale, as well as in the long-standing history of governmental support for and involvement in news technologies and practices. A variety of policies and laws that undergird the circulation of news (and the human enterprises making it possible) are therefore both consonant with, and even bolster, these constitutional principles.

Some may view the federal Constitution solely as a set of restrictions on federal governmental power, but that misunderstands the commitment, which was motivated by the failure of the limited-government conception of the Articles of Confederation, to create and maintain an effective government.Footnote ¹⁹ How can there be effective self-government without access to news? And how can public and private power be held to account without workable journalism? These are the questions that the now undeniable crisis in the news world, especially in local news, urgently raises.

26.2 Causes and Results of the Declines in Local News Production

Since 2005, the United States has lost more than 2,900 newspapers, and as of 2023, it is losing them at an average of 2.5 a week.Footnote ²⁰ Related trends have left 200 communities with no local news coverage,Footnote ²¹ while half of all local communities in the United States now have only one newspaper, and most of these are published just once a week.Footnote ²² As local news rapidly loses audiences, newspapers and broadcasters in small cities and towns are merging or being sold to chains or private equity investors. These new owners pursue economic returns through cost reductions and restructuring.Footnote ²³

Advertising revenues have followed people to digital platforms, whose owners and managers often choose not to invest in news production. This means they do not pay even for copyrighted news reports posted by users. It also means that they do not participate in what once was a virtuous circle where publishers used revenue from subscriptions and advertisements to support additional reporting. These trends especially decimate what might be called “local government accountability reporting,” such as reporting on the excessive reliance on fines and fees by Ferguson, Missouri, where the police shooting of Michael Brown, an unarmed Black man, triggered racial riots across the country.Footnote ²⁴ It turns out that the city of Ferguson had no daily newspaper, no news blog focused on local government, no community radio station, and no local public-access television.Footnote ²⁵ After the identification of lead in the water supply of Flint, Michigan, whistleblower and public health expert Dr. Mona Hanna-Attisha said to me, “Actually, we were lucky.”Footnote ²⁶ When I asked why, considering that the discovery of lead represented a major crisis of public health, law, and politics, her reply was unforgettable: “We have good local news. There are hundreds of Flint, Michigans out there without local news, so we don’t know about them.”

The news ecosystems in this country were never perfect. Many communities had little coverage and faced biases affecting what was covered and how stories were reported or missed. News outlets often have neglected covering politics and abuses of power in their reporting and too frequently only reflect the interests of certain segments of the community. In the nineteenth century, political parties sponsored local news, and it was not until the turn of the twentieth century that journalists claimed to be objective.Footnote ²⁷ Yet the loss of local journalism has palpable costs to democracy and community well-being. Communities lacking local news have higher rates of public and private corruption, as well as lower voter turnout than those with a steady supply of local news.Footnote ²⁸

There is a certain irony that it is local journalism facing the starkest challenges, because it has been among the most trusted sources of news – far more than national outlets.Footnote ²⁹ Indeed, regions that lose local news become more partisan.Footnote ³⁰ Perhaps the lower partisan divisions in local communities reflect how local politics and local issues tend to be less partisan and divisive than national politics.Footnote ³¹ News organizations not only reflect but also help to constitute a “public,” a community of interest.Footnote ³² Journalists invite people to identify with a community and also stand in for the polity in holding those in power accountable.Footnote ³³ When the press loses its viability, when it disappears, or when trust in it fades, then social trust and the sense of participation in a shared community also dissipate. Understanding why local news providers are disappearing thus matters for larger issues of social trust and democracy’s future, and the following discussion explores contributing factors.

26.3 Potential Responses

Policymakers can pursue several kinds of responses. The first approach would tackle the forces undermining the viability of local news by holding social media platform companies to the standards applied to responsible actors and by protecting the companies’ readers and users. The second would bolster existing local newsgatherers and providers, as well as nurture potential ones, while also cultivating the public’s demands and taste for their efforts. The third approach would promote innovations in business models for local news, in newsgathering and dissemination, and in the institutional arrangements affecting the news ecosystem.

26.4 Reflections

Alarm about diminishing local news operations has become to stimulate responses. Philanthropies, governments, and innovators in business and technology are taking action, but it is too soon to tell whether the results will sustainably strengthen reliable and abundant sources of local news in the United States. Failure, however, risks democratic governance and trust, increased public and private corruption, and jeopardy to the health of individuals and communities.

Long-standing traditions of governmental and private investments in newsgathering and reporting offer legal and practical foundations for new reforms, but the challenges to local news in an age of large-scale digital communications require innovation, persistence, and care.