Right Now | Constitutional Questions
The Extinction of the Press?
When America’s Founders drafted the First Amendment, including its protection of a free press as key to self-governance, they could not foresee the twenty-first-century media landscape: Twitter and Facebook, filter bubbles that feed readers stories that reinforce their beliefs, and the shrinking number of local newspapers, now considered “legacy” media.
Dwindling access to reported news threatens to undermine democracy, warns former Law School dean and 300th Anniversary University Professor Martha Minow. “Newspaper newsrooms lost 45 percent of their employees between 2008 and 2017,” she says. “And since the start of the pandemic, there is a cascading set of reductions and cutbacks in [news] production, which is ironic…when people are so eager and desperate for news.”
Compounding the problem are a growing number of “news deserts”: communities where there are no longer media outlets sending reporters to city-council meetings, to monitor how tax dollars are spent, or to ask local public-health officials about their response to COVID-19. Minow once met one of the whistleblowers who exposed the problem of lead in the water in Flint, Michigan. “She said to me, ‘There are many Flints all over the country, and the difference was that in Flint there was some news media.’”
As social-media platforms become a predominant news source, “Professional journalism, messages from your cousin, or messages from a Macedonian adolescent paid to design arresting ads can seem equal,” Minow wrote in a recent article published in the Loyola Law Review. There’s no human editor vetting the news, or ensuring that content meets journalistic standards. And unlike newspapers, in which a reader might head first for the sports page but encounter topics such as business or politics along the way, social-media sites such as Facebook deliver highly curated content based on readers’ habits, shielding them from other topics and perspectives.
Because user-behavior data, including shopping habits and search history, are collected along with demographic information and sold to advertisers eager to reach target audiences, “It makes the selling of ads far more efficient,” Minow explains—including ads for political candidates, which “are often a very important part of the business for many media outlets. Now the political ads can be very, very sculpted and sent only to some people, so other people don’t see those messages.”
Can a healthier news ecosystem be built? Minow, who is writing a book on this topic (forthcoming from Oxford University Press), sees a role for government in ensuring citizen access to reliable information, and views this approach through the particular lens of a constitutional lawyer. “What’s striking to me is how many proposals for change have been met with the argument, ‘Oh no, that violates the First Amendment,’” she says. Courts, she adds, largely refrained from interpreting the First Amendment this way until the twentieth century, only then beginning to enforce it gradually, and then, in the past two decades, adopt a libertarian conception.
Prior to this, “There was always deep involvement by the government in supporting media, assisting media, and shaping media,” she says. This began with subsidies that reduced postage for colonial newspapers, which yielded “more newspapers in circulation in this new country per capita than there were in England.” Throughout U.S. history, the Supreme Court has halted taxes on newspapers, government policies have promoted the growth of communications technologies from the telegraph on, and antitrust laws have been used to foster competition among media outlets.
Minow acknowledges the inherent risks of government involvement in media. “We certainly do not want a government censor,” she says. “On the other hand, there’s a lot of latitude for government action—particularly around the structures of media.” Some experts propose using antitrust laws to break up Facebook and other media giants, an idea with some bipartisan support in Congress. Minow is “less confident that that’s a promising solution, because even if Facebook and Google were broken up into four or five companies each, they’d still be enormous.” But she offers a host of other strategies, including the use of consumer-protection laws to require media-company transparency about how their algorithms operate. Social-media companies could be treated like utilities, privately owned but subject to regulation, to protect citizen access to information. Tax policy could be used to incentivize new news organizations, particularly in news deserts.
She also calls for more enforcement of fraud in cases of election interference, particularly for political ads generated by bots in other countries. “There should be some consequences, including shutting some operations down,” Minow asserts. To counter the echo-chamber effect of social media, she sees potential in “serendipity algorithms,” which generate content very different from what users normally encounter or seek out. Government entities shouldn’t control the information users see, but they could require disclosure of serendipity algorithms as an option, and require social-media outlets to offer them, Minow says. She also recommends requiring companies to honor their own service agreements, and to pay for news circulated on their platforms. “Otherwise,” she points out, “you’ll just have more and more journalists who are laid off and we won’t have new news.” And she calls for improved media education to help kids become discerning information consumers. “It’s a public-health requirement at this point,” she says, “and to go back to the Framers, it’s necessary for democracy.”
“There’s only one private enterprise that is mentioned in the United StatesConstitution and it’s the press,” Minow emphasizes.
There’s no silver bullet, Minow declares; such problems will require a variety of solutions. Though she stresses that the history of the press in the United States is hardly all rosy, she argues that nurturing a healthy press is a vital project. “There’s only one private enterprise that is mentioned in the United States Constitution and it’s the press,” she emphasizes. “That raises the question: is the Constitution, our way of life, our government, all predicated on the existence of an institution that may not exist? When the news function is folded in as part of the selling of Internet platforms, where gathering news and distributing it are not even in the top five purposes, what happens to a democracy?”