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

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

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

3.1 Objectivity and Subjectivity

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

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

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

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

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

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

3.2 Institutionalism and Populism

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

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

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

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

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

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

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

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

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

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

3.3 Conclusion

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