This chapter considers how advocacy of press freedom necessarily implicates contested political questions about desirable structures of governance and social interaction. Professor Magarian discusses two political oppositions that strongly influence how the free press functions: objectivity vs. subjectivity and institutionalism vs. populism. First, the chapter describes the late-twentieth-century news media’s heightened commitment to objective reporting. That commitment has strong political resonance with our era’s anxiety about submergence of objective truth in political debates. At the same time, the news media’s push toward objectivity fostered a stultifying homogeneity that prompted dynamic efforts, embodied imperfectly in the Fairness Doctrine, to complicate hegemonic narratives. Present advocates for press freedom must assess which truths the press should propound and which positions it should interrogate. Second, the chapter juxtaposes the institutionalized character of dominant late-twentieth-century news media with the populist fragmentation of news sources in the age of online communication. Institutionalized mass media have inculcated valuable journalistic norms of professionalism and ethics that contemporary online news sources often elide. However, populist mass media present a wider, more diverse range of voices than institutionalized media support. Present advocates for press freedom need to pursue the optimal balance between these opposing virtues.

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

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.

The Supreme Court has consistently declined to interpret the First Amendment to extend exclusive protections for the press. Across areas like newsgathering, rights of access, and protection of confidential sources, the Court has repeatedly rejected the press’s claims to particularized constitutional treatment. Yet many states have pursued a different approach. Each state constitution contains independent press and speech provisions. These provisions diverge from the First Amendment – in their texts, drafting histories, and interpretive precedents – in ways that can be rights-expanding for the press.

This chapter argues that these state constitutional provisions have been underutilized by press advocates. These state constitutional press and speech protections, along with other related constitutional provisions, hold promise as a powerful source of independent protection for journalists. They can be used to fill gaps left by the Supreme Court’s often flimsy and scattershot First Amendment approach. They can be more easily amended to respond to new and growing threats to the press. And they can operate as a safety net to catch the press if the Roberts Court decides to withdraw critical First Amendment press protections. Moreover, the lessons of the state constitutional experience can be used to support expanded federal press protections under the First Amendment.

There is a conflict in law and in journalism ethics regarding the appropriateness of truthful but scandalous information: What should be published and what should be edited out? In the past, judges routinely gave the press the right to make such determinations and often sided with journalists even in surprising situations in which the privacy of the individual seemed clear. In modern internet times, however, some courts are more willing to side with the privacy of individuals over First Amendment press freedoms – and the case brought by professional wrestler Hulk Hogan against the Gawker website for publishing his sex tape without permission is one example. This chapter uses that scenario to explore the clash between an individual’s privacy rights and the rights of the press to decide what is news.

The news industry today is no longer economically powerful: Newspapers are in peril, television and cable viewership are in decline, news deserts dot the landscape, and jaw-dropping numbers of journalistic staff cuts have drained expertise from newsrooms. Social media have cannibalized content and replaced scarcity of frequencies with scarcity of attention, and the news industry has far less political power.

Under these circumstances, the fate of the press’s functions is an existential question both for the news media as we know it and for contemporary American democracy. Managing the complexity of this kind of information environment calls for independent and principled engagement with issues of public concern by those who hew to journalistic values, such as truth, verification, completeness, investigation, and context. It also calls for appropriate legal protections.

In this chapter, I seek to explore the evolving mosaic of threats facing the American press and consider what, if any, legal “rights” wielders of the press function need in response. I begin by identifying a set of key threats facing the press – from economic, legal, technological, and audience-based developments. I then propose some initial responses to these threats along five dimensions: funding conditions, a mixed legal strategy, AI policy, industry restructuring, and trust enhancement. I also call for a commitment to press self-examination from the vantage point of fundamental journalistic values in a democracy.

If the press can claim rights different from those guaranteed to every speaker, it must be because we understand the Press Clause to serve constitutional values different from the freedom of speech clause and because these values require distinct forms of rights for their protection. In this short chapter, I explore four distinct constitutional values that at various times have been claimed to be uniquely served by the press: 1) the value of public discourse, 2) the Meiklejohnian value of distributing information, 3) the checking value, and 4) the value of the public sphere. Each of these values yields a different constitutional definition of the “press,” and each might imply a different array of rights that ought to accrue to the press. Although these values are distinct, the press may simultaneously serve one or more of them.

How is the capacity to learn from mistakes a vital but poorly understood part of contemporary press freedom? If an autonomous press has the power to continually create and recreate the institutional arrangements that it thinks best enable public life, then this press must be able to manage its changes with knowledge and intention. It must be able to see, understand, revise, reject, and invent the relationships and systems that influence its reporting, writing, editorial judgments, publishing, and public missions. It must be able to know how and why its arrangements succeed or fail. Today, though, many of the press’s successes and failures intertwine with sociotechnical systems – platforms, algorithms, datasets, machine learning – that originate outside of newsrooms, have little appreciation or care for editorial nuance, and are simply hard to understand. How can a press be free if it lacks the full capacity to know these systems and, specifically, to know why these systems fail and when their failures matter to the press’s public function? This chapter aims to answer this question in three sections: first, tracing scholarship on how the press has historically defined and learned from its mistakes; second, analyzing cases when journalistic uses of generative artificial intelligence failed; and third, sketching a new press freedom framework that shows publishers and technologists alike the power of equipping journalists with the capacity to learn from sociotechnical mistakes.

This chapter examines the continuing impact of Food Lion v. Capital Cities/ABC, Inc., a case in which a large grocery store chain sued ABC and its news producers for conducting an undercover investigation that resulted in a nationally broadcast television news story showing serious concerns about Food Lion’s food handling and sanitation practices. Although the court’s decision affirmed only a nominal damages verdict against the producers who investigated the story, the court rejected the defendants’ contention that Food Lion’s tort claims were in any way limited by the First Amendment. The chapter argues that Food Lion has had an ongoing, significant chilling effect on undercover investigations, particularly those where an investigator secures employment with the investigation’s target. Such investigations are critical to the discovery and dissemination of truthful information on matters of profound public concern. Drawing on limited public data and published information as well as interviews of those who conducted the Food Lion investigation, the chapter shows the reduction in undercover investigation since the case was decided. It concludes by contending that reconsideration of Food Lion’s legal analysis is long overdue and sets out the groundwork for recognition of a limited First Amendment newsgathering privilege for undercover investigations.

The Freedom of Information Act was imagined as a tool for the press. Journalists, it was thought, would use FOIA to unlock government files and inform the public to further democratic accountability. But, for the press, intractable delays and unchecked over-withholding render FOIA’s promise too often illusory. This chapter suggests structural reforms that would deliver FOIA to the press by making it work for journalists. First, it suggests opportunities for government to serve non-oversight FOIA users through other means, freeing up resources to better serve the news media. Second, it argues that creating an administrative oversight model rather than relying on judicial review would better vindicate the rights of news media frustrated with government noncompliance with the law. The chapter concludes by describing how these measures not only would improve FOIA’s functioning, but could transform FOIA into a tool that acts as true public support for and investment in journalistic efforts at a time that the news media industry faces existential challenges.

The American press is facing a perilous moment. A confluence of economic, cultural, technological, and political shifts has abruptly upended our longstanding sense of how the news media operates. Suddenly, it seems, these sweeping changes have realigned the traditional relationships between and among democracy, newsgathering, and press freedom, prompting new questions about what it means to value and support a free press in the United States.

Social media and the internet are the most important changes in communication since the development of the printing press. They democratize the ability to reach a mass audience, but they can also quickly spread harmful information and threaten the viability of traditional media that are essential for newsgathering. Courts have thus far largely approached these media by applying existing doctrines of freedom of the press and freedom of speech. But these doctrines are often, though not always, inadequate to deal with the issues posed by social media and the internet. It is important to identify those areas where traditional doctrines are inadequate and to begin to develop new First Amendment and statutory approaches.

This chapter examines how government entities determine who is a journalist to allocate resources under conditions of scarcity and to assure that the press can conduct its functions without undue government regulation and interference. Using a new dataset of 172 laws, rules, and procedures that different government entities have used to define the press, it describes the most common tests government entities use for identifying journalists and compares them to each other. The chapter then makes four normative recommendations about the tests government entities should use to define journalists. First, government entities should have explicit and meaningful standards for press exceptionalism. Second, most press exceptionalism should be limited to professional journalists who regularly produce news stories or commentary. Third, press exceptionalism should not turn on the type of technology used to communicate. Fourth, government entities should continue to have the power to grant press exceptionalism to “bona fide correspondents of repute in their profession” so long as they do not engage in viewpoint discrimination.

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