A central tenet of contemporary First Amendment law is the metaphor of the marketplace of ideas – that the solution to bad speech is more, better, speech.1 This basic idea is well established in both judicial and scholarly writing – but it is not without its critics. My contribution to this volume adds a new criticism of the marketplace-of-ideas metaphor. I argue that there are circumstances where ostensibly “good” speech may be indistinguishable by listeners from bad speech – indeed, that there are cases in which any incremental speech can actually make other good speech indistinguishable from bad speech. In such cases, seemingly “good” speech has the effect of “bad” speech. I call this process by which ostensibly good speech turns the effects of other speech bad “a noisy speech externality.”

It was 1971 and Los Angeles Times editor Nick Williams had what he called a “terribly uneasy feeling.” In a letter to one of the paper’s Washington correspondents, he wrote of his suspicion that journalism had “lost credibility … with an alarming percentage of the people.” If the plummet continued, Williams fretted, journalists will have “destroyed or weakened a keystone of our Constitution.”1

The internet has remade both the media and the social institutions that surround the media. Speech was not cheap in the twentieth century. News organizations had to buy newsprint, paper, distribution networks, transmitters, spectrum licenses – all kinds of things that cost much more than a Facebook page – if they wished to reach an audience. But the few news organizations that could cover these costs held a safe market position, and from this perch, they wielded a great deal of epistemic and moral authority in their communities. They became “gatekeepers” with the power and the responsibility to decide what information, and what claims, were fit to print. Much of media law, and particularly First Amendment law, seems to have developed around the assumption that news organizations could and would play this gatekeeping role, and that the government should therefore rarely need to.

Despite the sharp decline in the number of local newspapers, it’s important to understand that other legacy news-delivery platforms – particularly local TV news – have not been suffering the same degree of loss. Pew Research Center found that local TV news actually saw its audience increase across the evening and late-night timeslots in 2020, and that local TV companies earned more revenue than the previous year.1 In fact, local TV was deemed to be on par with or outpacing cable and network TV. Pew survey data show more Americans still prefer to get their local news from television than from any other medium, including online. Even with an increasing preference for digital delivery, “local television stations have retained a strong hold in the local news ecosystem.”2

It is usually a mistake to suppose that a company is the best judge of how its business works.1 Or that an industry is the best judge of how the industry works. AT&T is a good example. When the Justice Department sat down with management in 1981 to negotiate a breakup of what was then a monopoly provider of telephone service, government lawyers asked which part of the company management wanted to keep after the breakup – the long-distance operations or the regional networks.2 The long-distance operations had long been the company’s most profitable, so management asked for those.3

Media have traditionally relied on a mix of advertising and subscription revenue to keep the lights on – and to produce a mix of high-quality, thoughtful, well researched, compelling news, information, educational, and other content that is necessary in a modern democracy. The internet has disrupted those revenue streams. And while some media outlets have shored themselves up on other sources of support – grants, government transfers and licensing fees, wealthy patrons, or the like – such funding is both the exception and de minimis in the overall operation of our media ecosystem.

Trust in media institutions has declined more or less apace with trust in every other kind of major institution in public life. Or perhaps it is more correct, as Ashutosh Bhagwat observes in his contribution to this project, to say that trust has declined in the types of media institutions, the proverbial Walter Cronkites, that dominated “the media” during the twentieth-century period when modern American ideals around free speech and journalistic value were still taking form.

As indicated by the title, this chapter covers cases raising issues not covered in other chapters. Most prominent are cases concerning recusal not related to campaign fundraising or expenditures, most of which do not result in an order for recusal. Other issues covered include judicial districting unrelated to voting rights, retaliation, challenges to the creation of new positions arising in the context of filling them, method of selection (appointment or election) unrelated to filling an interim vacancy, recall, and a range of other miscellaneous issues.

Chapter 3 provides a statistical portrait of the 2,103 cases concerning the selection of state judges identified in the research. This portrait includes the frequency of such litigation over time and across states, the issues raised in the litigation, and how those issues vary over time, across states, and by type of election used. The chapter includes a comparison of litigation in state courts versus federal courts, noting that federal litigation over state judicial selection is a relatively recent phenomenon and has been driven in significant part by the Voting Rights Act. Importantly, the vast majority of the litigation occurs in states using contested judicial elections to select and/or retain judges.

This chapter examines litigation related to the appointment of federal judges, including administrative law judges (ALJs). Key issues raised in this litigation include recess appointments, the confirmation process, and whether and how the Appointments Clause applies to non-Article III judges including ALJs. In recent years, most of the litigation over federal judicial selection has concerned the appointment of ALJs.