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Advance Praise for Saving the News
“Dramatic technological and economic change threaten the information infrastructures that democracy requires to survive. Martha Minow provides a legal and policy roadmap for a 21st century media ecosystem. As we face a global crisis of democracy, Minow’s analysis and proposals are more timely and urgent than ever. A must-read.”
K. Sabeel Rahman , President of Demos, and Associate Professor of Law, Brooklyn Law School
“Addressing one of the most vexing challenges of our time, Martha Minow has written the essential book on the topic. Easy to say that something should be done about the affect of tech and social media on news and civic discourse. Much harder to say what to do. This brilliant, illuminating and much-needed book moves the discussion toward solutions. Saving the News is thoughtful and thought-provoking, and a must-read.”
Julius Genachowski , Managing Director of global technology, media and telecommunications, The Carlyle Group, and former Chairman of the US Federal Communications Commission
Other books in the series:
Not a Suicide Pact
The Constitution in a Time of
National Emergency
Richard A. Posner
Out of Range
Why the Constitution Can’t End the Battle over Guns
Mark V. Tushnet
Unfinished Business
Racial Equality in American History
Michael J. Klarman
Supreme Neglect
How to Revive Constitutional Protection for Private Property
Richard A. Epstein
Is There a Right to Remain Silent?
Coercive Interrogation and the Fifth Amendment After 9/11
Alan M. Dershowitz
The Invisible Constitution
Laurence H. Tribe
Uninhibited, Robust, and Wide- Open A Free Press for a New Century
Lee C. Bollinger
From Disgust to Humanity
Sexual Orientation and Constitutional Law
Martha C. Nussbaum
The Living Constitution
David A. Strauss
Keeping Faith with the Constitution
Goodwin Liu, Pamela S. Karlan, and Christopher H. Schroeder
Cosmic Constitutional Theory
Why Americans Are Losing Their Inalienable Right to Self- Governance
J. Harvie Wilkinson III
More Essential than Ever
The Fourth Amendment in the Twenty-First Century
Stephen J. Schulhofer
On Constitutional Disobedience
Louis Michael Seidman
The Twilight of Human Rights Law
Eric A. Posner
Constitutional Personae
Heroes, Soldiers, Minimalists, and Mutes
Cass R. Sunstein
The Future of Foreign Intelligence
Privacy and Surveillance in a Digital Age
Laura K. Donohue
HATE
Why We Should Resist It with Free Speech, Not Censorship
Nadine Strossen
Democracy and Equality
The Enduring Constitutional Vision of the Warren Court
Geoffrey R. Stone and David A. Strauss
Beyond Belief, Beyond Conscience
The Radical Significance of the Free Exercise of Religion
Jack N. Rakove
The Religion Clauses
The Case for Separating Church and State
Erwin Chemerinsky and Howard Gilman
Liars
Falsehoods and Free Speech in an Age of Deception
Cass R. Sunstein
INALIENABLE RIGHTS SERIES
Lee C. Bollinger President
Columbia University
series editor
Geoffrey R. Stone
Michael W. McConnell
Richard and Frances Mallery Professor of Law
Stanford Law School
Alan M. Dershowitz
Felix Frankfurter Professor of Law
Harvard Law School
Laura K. Donohue Professor of Law University of Chicago Law School
Richard A. Epstein
Laurence A. Tisch Professor of Law
New York University School of Law
Pamela S. Karlan
Kenneth and Harle Montgomery Professor of Public Interest Law Stanford Law School
Alexander Keyssar
Matthew W. Stirling, Jr., Professor of History and Social Policy
JFK School of Government, Harvard University
Michael J. Klarman
Kirkland & Ellis Professor of Law and History
Harvard Law School
Larry D. Kramer
Richard E. Lang Professor of Law and Dean
Stanford Law School
Lawrence Lessig
Edmund J. Safra Professor of Law
Harvard Law School
Goodwin Liu Professor of Law
University of California at Berkeley School of Law
Martha C. Nussbaum
Ernst Freund Distinguished Service Professor, Philosophy, Law, Divinity, South Asian Studies University of Chicago
Eric A. Posner
Kirkland & Ellis Distinguished Service Professor of Law University of Chicago Law School
Richard A. Posner Judge U.S. Court of Appeals for the Seventh Circuit
Jack N. Rakove
William Robertson Coe Professor of History and American Studies Stanford University
Louis Michael Seidman
Carmack Waterhouse Professor of Constitutional Law Georgetown University Law Center
Christopher H. Schroeder
Charles S. Murphy Professor of Law
Duke Law School
Stephen J. Schulhofer
Robert B. McKay Professor of Law
New York University School of Law
Geoffrey R. Stone
Edward H. Levi Distinguished Service Professor University of Chicago Law School
David A. Strauss
Gerald Ratner
Distinguished Service Professor of Law
University of Chicago Law School
Kathleen M. Sullivan
Stanley Morrison Professor of Law
Stanford Law School
Cass R. Sunstein
Robert Walmsley University Professor
Harvard Law School
Laurence H. Tribe
Carl M. Loeb University Professor of Law
Harvard Law School
Mark V. Tushnet
William Nelson Cromwell Professor of Law
Harvard Law School
J. Harvie Wilkinson III
Judge
U.S. Court of Appeals for the Fourth Circuit
Kenji Yoshino
Chief Justice Earl Warren
Professor of Constitutional Law
New York University School of Law
Geoffrey Stone and Oxford University Press gratefully acknowledge the interest and support of the following organizations in the Inalienable Rights series: The ALA The Chicago Humanities Festival The American Bar Association The National Constitution Center The National Archives
1
Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and certain other countries.
Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America.
© Martha Minow 2021
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above.
You must not circulate this work in any other form and you must impose this same condition on any acquirer.
Library of Congress Cataloging-in- Publication Data
Names: Minow, Martha, 1954– author.
Title: Saving the news : why the Constitution calls for government action to preserve freedom of speech / Martha Minow.
Description: New York : Oxford University Press, [2021] | Series: Inalienable rights series | Includes index. |
Identifiers: LCCN 2020056753 (print) | LCCN 2020056754 (ebook) | ISBN 9780190948412 (hardback) | ISBN 9780190948436 (epub) | ISBN 9780190948443
Subjects: LCSH: Press law— Economic aspects— United States. | Freedom of the press— United States.
Classification: LCC KF2750 .M56 2021 (print) | LCC KF2750 (ebook) | DDC 342.7308/53— dc23
LC record available at https:// lccn.loc.gov/2020056753
LC ebook record available at https:// lccn.loc.gov/2020056754
DOI: 10.1093/oso/9780190948412.001.0001
1 3 5 7 9 8 6 4 2
Printed by LSC communications, United States of America
To M.S. and other intrepid witnesses and advocates for accountable democracy
If you want to preserve democracy as we know it, you have to have a free and many times adversarial press. And without it, I am afraid that we would lose so much of our individual liberties over time. That’s how dictators get started.
Senator John McCain, February 20, 2017
Preface
FROM GUTENBERG TO ZUCKERBERG
By Newton Minow
When Johannes Gutenberg invented movable type and the printing press in the fifteenth century, he married print and paper. Five centuries later, Mark Zuckerberg and others caused the long marriage of print and paper to stumble. Technology now moves faster than ever before. The internet eliminates distance and boundaries. Artificial intelligence looms to replace human judgment in the next step in the global communications revolution.
Our daughter Martha asked me to lend perspective to how changing technology is impacting communications policy. Over the last seven decades, I’ve been privileged to have a front-row seat inside the communications revolution. It began in World War II when I was a teenage U.S. Army sergeant in the 835th Signal Service Battalion in the China-Burma-India Theater. Our battalion built the first telephone line along the Burma (now Myanmar) Road connecting India with China. After college and law school, I was a law clerk for
Preface
Chief Justice Fred Vinson when the Supreme Court of the United States heard a case that fascinated me: it was about how the Federal Communications Commission (FCC) reached its decision regarding competing technological standards for color television. After my tenure with the chief justice, I became assistant counsel for Illinois governor Adlai E. Stevenson and worked in his two campaigns for president in 1952 and 1956. One of my assignments was to appeal to the broadcast networks and to the FCC for equal time for Stevenson on radio and television so that Stevenson could respond to President Eisenhower. In 1961, President Kennedy appointed me chairman of the FCC. Returning in 1963 to private life and law practice, I became a managing partner of what is now an international law firm (Sidley Austin) in the United States, Europe, and Asia, its offices tied together by the most advanced digital technology. In the next fifty years, I served on many nonprofit and for-profit boards of directors, including for a major book publisher (Encyclopaedia Britannica), a major magazine publisher (Curtis Publishing, which produced the Saturday Evening Post), major newspapers (Chicago Sun-Times, Chicago Daily News, Chicago Tribune), independent UHF television stations (Field Enterprises), public television (WTTW Chicago, PBS), a national radio and television network (CBS), an international advertising agency (Foote, Cone & Belding/ Publicis), a major advertiser (Sara Lee), a major think tank (RAND Corporation, which had a huge role in creating the internet), a major philanthropic foundation (the Carnegie Corporation of New York, which funded Sesame Street), the televised presidential debates (first with the League of Women Voters, then with the Commission on Presidential Debates), a communications policy leader (the Annenberg Washington Program), the world’s most advanced telemedicine service (the Mayo Clinic), and two major universities (Northwestern and Notre Dame); I also taught graduate journalism and law students (at Northwestern University). These experiences gave me diverse perspectives. I also served as
Preface
chair of a special bipartisan advisory committee to the secretary of defense on protecting civil liberties in the fight against terrorism. I’ve seen every side of the elephant, including the backside.
Because of these experiences, Martha asked me to write this preface for her latest book. Martha grew up with nightly dinner conversations around the table with her mother, sisters, and me, and she listened to many stories and asked many questions. Martha asked me to describe what I learned. Now in my ninety-fifth year, I have five reflections.
First, two words— public interest— are disappearing from communications policy. When our government began to regulate communications about a hundred years ago, these two words set the standards. They appear in the Federal Communications Act dozens of times. Other nations, especially the United Kingdom, Canada, Japan, and Australia, use similar words to establish standards that broadcasters, cable operators, telephone companies, and other communicators must serve. Original regulatory systems were based on the idea that telephone service would be provided by wire and broadcast signals would travel through public airwaves. Today, most telephone calls originate and arrive through the air and most television viewers watch programs through wires. As technology changes, public policy lags behind. And the basic concept that our communications systems are to serve the public— not private— interest is now missing in action.
Second, changes in communications technology change not only the lives of individuals but also the roles of institutions, including governmental institutions. When I went to the FCC, I saw that the television and advertising industries paid no attention to official United States maps of cities, states, and legal boundaries. They created their own maps because radio and television signals do not respect traditional boundaries. Signals travel in a roughly sixty-mile circle, and viewers within that circle live in different cities, states,
[ xv ]
Third, when I was at the FCC, we believed that the American people would benefit from more choice in radio and television service. We opened up FM radio, UHF television, cable television, public television, satellite television, and subscription television— greatly enlarging the existing 1961 television service of two and a half commercial networks. We added hundreds of new local stations. On reflection today, I wonder if enlarging choice contributed heavily to the deep divisions in our country, which is now more divided than I’ve ever seen before. In 1963 and in 2001, radio and television united our country in times of crisis, such as after the assassination of President Kennedy and the 9/11 terrorist attack. Americans today are divided not only on what they believe but also on what they “know,” presenting not just different ideas but different facts. Walter Cronkite and I served on the CBS board together when he was the most trusted man in America. Now, who is trusted? How do we restore faith in facts? As Pat Moynihan said, we are all entitled to our own opinions, but not to our own facts. Although I still believe we were right to enlarge choice, I am no longer so sure.
Fourth, looking to the future, artificial intelligence (AI) is already well developed, and AI and the Internet of Things will soon revolutionize what we do and how we live. The lightning speed of AI can transform human reasoning and decision-making. Already we have observed AI defeating the world’s master chess players and
[ xvi ] and rural areas. So instead of a map of forty- eight states in the continental United States, there is a map of 210 DMAs (Designated Market Areas). For example, a television transmitter in Chicago sends signals not only into Illinois but also to parts of Indiana, Wisconsin, Michigan, and Iowa. Without our knowing it, technology thus amends laws and constitutions. Our governmental institutions lag far behind changing technology.
Chinese experts at Go, the world’s hardest game of psychological strategy. AI is determining which citizens get parole. Experts predict that AI will help guide its own evolution. We have been so busy learning how to use technology that we neglected to learn how to direct and govern technology. New and scary advances in AI enable what are called “deepfakes.” AI can change a video by substituting any face wanted for the face of the speaker, can change the words of the speaker, and even change the way the speaker’s lips originally moved. Political campaigns and elections can be manipulated by such deepfakes to threaten the future of democracy. No scientist, philosopher, or engineer has yet figured out how to program AI to serve the public interest.
Fifth, the result of all these changes is a profound challenge to democracy. As many scholars have written, our communications law and policy have long been based on the notion of a world in which speech is scarce and audiences abundant; today speech is abundant and listener attention is scarce. Unwittingly, we have so democratized the speech market that no one can be heard, bad actors flood social media, and democratic deliberation is damaged. That market has also created a state of constant information surveillance that threatens basic values of free expression.
Just as representative democracy is threatened by these changes, so is the international system that has sustained world peace and cooperation since the end of World War II. That system always had democratic deficiencies, but it worked. What will replace it? The populist movements sweeping liberal states have lots of sources, but all depend to some degree for their energy on the new social media and the capture of traditional media. Nowhere in this new order is there a thoughtful consideration of the public interest.
These changes should remind us of the words of Edward R. Murrow, who spoke about television in its earliest days: “This
Preface
instrument can teach, it can illuminate; yes, and even it can inspire. But it can do so only to the extent that humans are determined to use it to those ends. Otherwise, it’s nothing but wires and lights in a box.” Martha is one of those determined humans— and that is why her book is so important.
[ xviii ]
Introduction
Jeopardy to News Production and Challenges for Constitutional Democracy
The United States Constitution specifically mentions only one private enterprise— the press— and does so in the context of according it constitutional protection.1 A press free to criticize those in power and to spread information about developments, challenges, and opportunities across society figured high in the understanding of the Constitution’s framers as they sought to create foundations for a strong democratic government and society. What does and what should the constitutional guarantee of press freedom mean at a time when the for-profit basis of newsgathering and sharing is strained, even failing? Does that guarantee, permit, prohibit, or require government steps to keep the press and its news work viable? There have been warnings for many decades now about the economic fragility of the business of gathering and sharing news. As outlets increased staff reductions and more newspapers closed across the United States in the first decades of the twenty-first century, the warnings escalated.2
Making sense of the trends is a complicated task. With the development of digital resources beginning in the late twentieth century, this age is awash with communications. Over the past centuries of practice, “the news” evolved to include reports of events, data, information, facts, and analyses offering informed and trustworthy communication of happenings, trends, and issues affecting people’s lives. In the internet age, amid this plenitude are three features that depart from traditional techniques of newsgathering and presentation.
First, the sheer volume of material— including items from misinformation campaigns— makes it much more difficult for individuals to find and understand news that may matter to them. Second, current disruptions undermine the virtuous cycle in which news reporting grew with financial returns from subscriptions and sale of advertising, which in turn attracted more readers, subscriptions, and ads. Now, many readers have migrated to digital platforms that do not reinvest in reporting and analyzing news and do not see themselves as news providers. Leaders of digital companies have pretended that their platforms make no editorial choices for which they should be responsible. Third, and relatedly, disinvestment in newsgathering and reporting leaves often sizable gaps.
Those gaps are especially notable in the loss of local news operations in the United States, where lack of reporting about towns, suburbs, and rural areas is now creating “news deserts” across the country.3 Changes in the private industry of the press leave some communities with no local news coverage.4 In the local news outlets that remain, fewer than 20 percent of the stories deal with the community or events that take place there.5 There has been less disruption of smaller newspapers by the national digital platforms than of bigger news operations, but consolidation of ownership and cost cutting have diminished coverage of local news. The new owners of newspapers and big digital platforms can choose not to invest in news production or what might be called “local government accountability”
(reporting on the behavior of local officials or the state of local health, safety, economic, or education conditions). Traditional news media have shrunk, cutting staff and relying on freelancers, as digital platforms have surged. Fewer than one-third of people surveyed in 2016 trusted mass media to report news fully and accurately.6 By 2020, 68 percent of Americans polled see too much bias in news reporting as a major problem— and 81 percent identified news media as critical or very important to democracy.7 The decline in local news coverage may be tied to falling voter turnout for state and local elections and fewer people running for office in local elections.8
Newspaper newsrooms lost 45 percent of their employees between 2008 and 2017. Cascading reductions of staff and cutbacks on production accelerated in 2020 in the wake of the COVID-19 pandemic.9 With revenue coming largely from advertising that targets individuals based on their identities and interests, digital media can easily sort people into different subcommunities, where they encounter different versions of events and concerns (especially so for those who are most politically engaged). Targeted marketing and algorithms divide people into subgroups in what might be called “digital gerrymandering,” leading to quite different news, agendas, “facts,” and understandings. Rather than coming across a variety of stories and viewpoints, individuals receive materials reflecting their past interests; predictions of interest based on their demographic, purchasing, and viewing habits; and nudges into content that will keep them on the site even if that content is inaccurate or extreme. As a result, large numbers of people live in worlds with barely overlapping news streams. The declining role of professional journalists and the vulnerability of digital platforms to invasion by foreign actors, bots, and manipulative interests contribute both to distrust of media and to misinformation, harming the efficacy of self-governance.
A majority of people in the United States now receive news selected for them by a computer-based mathematical formula derived
from their past interests, producing echo chambers with few opportunities to learn, understand, or believe what others are hearing as news. People of course use digital platforms for many other purposes beyond getting news— entertainment, posting personal photographs, and so on. But with the shift of attention away from newspapers and broadcasting, advertising dollars too move to digital platforms.10 The long-standing model of for-profit newspapers supported largely by advertising does not work when 89 percent of the online advertising dollars go to Google or Facebook and 60–70 percent of all advertising revenues go to internet companies. This trend will continue because digital ads are cheaper and aim with greater accuracy at likely customers.
These changes reflect a decline from the golden age of journalism, 1960–1980. When multiple news producers in cities treat news reporting as a public good, its value does not diminish as more people consume it, but people can “free ride” on its existence without paying for it, as it is costly or impossible to exclude them all. Knowledge is a classic public good; broadcast signals for radio and television resemble a public good, but cable providers found ways to exclude those who do not pay. Newspapers and broadcasters depend largely on commercial advertising, an economic path now profoundly diminished by the migration of ads to the digital sphere.11
The press has had earlier phases lacking elements of professional rigor. In the early nineteenth century, newspapers were organized and financed by political parties. In the late nineteenth century, “yellow journalism” pushed scandals. And U.S. history has repeatedly seen older forms of communication disrupted by new ones, as the telegraph and then broadcasting challenged newspapers. But the surmounting of past challenges does not erase the risk that journalism in the early twenty-first century will fall into even more dire straits.
The founders of the United States understood the central role played by the press in the American Revolution and as a guard against tyrannical government.12 The Bill of Rights, amending the Constitution in response to many concerned about a central government being too powerful, embraced not only freedom of speech for individuals but a specific guarantee of freedom of the press. As crafted, the First Amendment of the U.S. Constitution assumes the existence and durability of a private industry. In directing that Congress “shall make no law . . . abridging the freedom of . . . the press,” the Constitution’s authors assumed the existence of newspapers.13 Newspapers were, at that time, produced entirely on privately owned printing presses; they published accounts of events of the day, political opinions, essays, and entertainment for readers.14 Constitutional protection for this work could have fallen comfortably within the legal protection of private property or individuals’ freedom of speech. But the authors and voters behind the First Amendment thought the press important enough to single it out as a distinct bulwark for the liberty of the people and their vision of self-government. The shift from printing presses and delivery boys to tubes and fibers does not matter. Jeopardy to the very project of gathering and sharing actual news does.
The First Amendment does not govern the conduct of entirely private enterprises, but nothing in the Constitution forecloses government action to regulate concentrated economic power, to require disclosure of who finances communications, or to support news initiatives where market failures exist. Despite some current constitutional objections to any kind of governmental involvement in regulation of the press, there is a long-standing history of such involvement in the United States that undermines the purely constitutional aspects of these arguments.
The federal government has contributed financial resources, laws, and regulations to develop and shape media in the United
States. The transformation of media from printing presses to the internet was affected by deliberate government policies that influenced the direction of private enterprise. From granting newspapers low mailing rates (and even exemptions from postal fees) to investments in research (ultimately producing the internet), and from establishing licensing regimes for broadcasting to regulating telephone lines and features of digital platforms, the government has crafted the direction and contours of America’s media ecosystem. The federal government has invested in the development of a new medium, shielded innovative media from competition, and used competition rules, subsidies, and other policies to promote access and innovation.
Indeed, the large degree of government involvement in media, in combination with media’s functional importance to democracy, lends constitutional significance to policy choices present today. Potential reforms include a new fairness doctrine and awareness efforts to distinguish opinions and news, regulation of digital platforms as public utilities, use of governmental antitrust authority to regulate the media, rules to protect media users from having their personal information used in ways that invade privacy and distort the news they receive, payment by platforms for intellectual property of news organizations, regulation of fraud, and robust funding of public media and media education. Reforms along these lines are not simply plausible ideas; they represent the kinds of initiatives needed if the First Amendment guarantee of freedom of the press can hold meaning in the twenty-first century. This book will make the case for the need for change, the legal basis for change, and the specific forms that policy initiatives could take to remedy the failures of the contemporary ecosystem of news, and it will explore ways to navigate potential constitutional barriers to such reforms.
Some argue that the U.S. Constitution has no bearing on the situation. Others go further, adding to the usual obstacles to
reform— opposition from industry and difficulties enacting and enforcing new rules— an emerging, aggressively libertarian view of the First Amendment. Because the Supreme Court views the essential trip wire for First Amendment review to be actual governmental action affecting speech, the activities of private digital platforms and private media companies seem beyond the reach of reforms. The Constitution might be interpreted to prevent reforms that touch on or shape the worlds of speech, news, and media. Moreover, by legislation and judicial interpretation, digital platforms enjoy protection from even the limited liabilities for fraud and defamation applied to newspapers and broadcasters.
The forces influencing news production and distribution are intense, and the prevailing legal framework seems unavailing. Yet the freedom of the press defended by the First Amendment of the U.S. Constitution assumes the existence and durability of a private industry. This book proceeds with the argument that initiatives by the government and by private sector actors are not only permitted but required as transformations in technology, economics, and communications jeopardize the production and distribution of and trust in news that are essential in a democratic society. Any contrary view of the Constitution imperils the very system of government it establishes.
Recognizing fundamental changes is often difficult for those who live through them. Yet the decline of the news media is accelerating. The familiar pattern of economic disruption that brought the telegraph, radio, television, and cable complemented but did not destroy the investment in newsgathering and production and the mechanisms for vetting material. The disruption wrought by the internet and the platform companies is not generating a sustainable alternative, and constitutional democracy itself is in the balance.15 Yet it can be hard to imagine what comes next based only on extending what is current.16
