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.