Freedom of the Press in the Digital Age
The question to be explored in this seminar is whether the digital revolution has made freedom of the press unnecessary. To the extent that freedom of the press derives from law (as opposed to economic power, tradition, etc.), very little of it flows directly from the press clause of the First Amendment. The Supreme Court has generally refused to read that clause as securing to the press anything that isn't guaranteed to everyone under the speech clause. Nevertheless, the law fosters freedom of the press extensively, through nonconstitutional preferences and perquisites accorded the press and through speech clause interpretations that benefit the press de facto.
The beneficiary of those legal protections is chiefly the institutional press — newspapers, wire services, newsmagazines, television stations and networks, and a few online news outlets. But public disenchantment with mainstream media, enthusiasm for new technologies, and the egalitarian appeal of the idea that the digital age makes it possible for everyone to be a journalist, all militate against continued favoritism toward the institutional press. The existing favoritism is also threatened by the challenges of bloggers and other nontraditional communicators who seek the same perquisites. The path of least resistance for officials and legislators may be to abandon the accommodations rather than try to solve the definitional and logistical difficulties of expanding the concept of "press."
The digital revolution has already weakened the institutional press, drawing audience and advertisers away from newspapers and television and diminishing their ability, if not their will, to maintain the extensive newsgathering apparatus that they have traditionally provided. While the new media have greatly expanded opportunities for commentary and audience interaction, they have not generated effective substitutes for the newsgathering abilities of the mainstream media they are displacing.
Following are some questions that would be within the scope of the seminar:
Does the First Amendment protect distinctive press rights?
Is editorial autonomy protected any differently than individual autonomy?
Must press clause rights be individual rights?
What constraints does the law impose on officials' discretion in granting press perquisites?
Does the law treat online news outlets as press?
What nonmedia entitities might evolve into substitutes for the press?
What economic and legal models would permit/encourage online newsgatherers to evolve?
Is newsgathering distinguishable from other information acquisition?
What distinguishes news from other information, or press from other media?
Thew first four or five meetings will be classes covering the basics of free press law. Then each student will submit a topic memo, an outline, and a paper of 30-50 pages. The paper will be critiqued and returned in time to permit revisions, should the student wish to revise. Grades will be based on the written work and classroom participation.