Christina Koningisor & Lyrissa Lidsky

First Amendment Disequilibrium

The Supreme Court has constructed key parts of First Amendment law around two underlying assumptions. The first is that the press is a powerful actor capable of obtaining government information and checking government power. The second is that the executive branch is bound by various internal and external constraints that limit its ability to keep information secret. Judges and legislators have long assumed that these twin forces—an emboldened press and a constrained executive—maintain a rough balance between the press’s desire to uncover secrets and the executive’s desire to keep information hidden. Landmark First Amendment cases such as the Pentagon Papers decision embody this view. Professor Cass Sunstein has described these cases as establishing a “First Amendment equilibrium,” one that arises out of the structural competition between the press and the executive. Today, judges and legislators continue to treat the press and the government as equal combatants in these disputes.

Yet whatever equilibrium might once have existed between the press and executive branch has been destabilized. The institutional press has been eviscerated in recent years—hemorrhaging talent, expertise, resources, and legitimacy. Wide swaths of the country now qualify as “news deserts,” lacking any local press presence at all. Public trust in the mainstream media has also plummeted. At the same time, many internal checks no longer constrain the ability of the executive branch to guard its secrets. This combination of a hollowed-out press and an insufficiently checked executive has given rise to a First Amendment disequilibrium, unsettling the foundations of this critical segment of constitutional law. This Article describes the causes and consequences of this disequilibrium and argues that recalibration is essential to fostering effective democratic self-governance.

Introduction

In the fall of 1968, a pair of FBI agents visited New York Times reporter Earl Caldwell.1 1.Josiah Bates, How a Journalist’s Refusal to Testify Against the Black Panthers Changed First Amendment Rights, Time (Feb. 28, 2022, 2:41 PM), https://time.com/6149443/earl-cald‌well-black-panthers-fbi/ [https://perma.cc/KP5X-L97H].Show More At the time, Caldwell was among the most prominent journalists in the country. He was the first Black reporter the Times assigned to cover Martin Luther King, Jr., and the only journalist on the scene when the civil rights leader was shot.2 2.Id.Show More The newspaper had recently assigned him to cover the Black Panther movement, and the FBI agents wanted to know if Caldwell would pass along information about the group. He refused.3 3.Id.Show More A year and a half later, a federal prosecutor subpoenaed him to testify before a grand jury about the movement. Again, he refused, arguing that the First Amendment protected the identity of his confidential sources and his eyewitness observations of the group’s activities.4 4.Branzburg v. Hayes, 408 U.S. 665, 675–77 (1972).Show More

The ensuing legal dispute reached the Supreme Court in 1972.5 5.Id. at 665.Branzburg was a consolidation of four separate cases. In addition to the case involving Caldwell, see id. at 675, there were two cases involving a Kentucky newspaper reporter who reported on individuals making hashish and using illegal drugs. Id. at 667–69. A third involved a television reporter in Massachusetts who obtained information while inside the headquarters of the Black Panthers. Id. at 672–73. The reason the reporters advanced this constitutional claim was that there were no federal or state shield laws available to offer protection. One of the consolidated cases involved a federal grand jury, and there was (and is) no federal shield statute. Id. at 689. One involved a state grand jury in Massachusetts, which had no shield statute at the time. Id. The other two involved a grand jury in Kentucky, whose shield statute was held to be inapplicable. Id. at 668–70.Show More In a set of four consolidated cases, Caldwell and two other reporters argued that a qualified constitutional privilege protected them from being compelled to divulge confidential information.6 6.Id. at 681 (“The heart of the claim is that the burden on news gathering resulting from compelling reporters to disclose confidential information outweighs any public interest in obtaining the information.”).Show More Without such protection, the reporters argued, their informational sources would dry up, impairing their ability to keep the electorate informed. The journalists argued that implicit in the constitutional rights of speech and press is a right to gather news and information.7 7.Id. at 680–81, 691–92.Show More

The Supreme Court rejected their privilege claims.8 8.Id. The holding in this case is debated. Much of the confusion stems from a concurrence written by Justice Powell—who served as the majority’s fifth vote—which seemed to advocate for a First Amendment balancing test that the majority had expressly rejected. Id. at 709–10 (Powell, J., concurring); see Michele Bush Kimball, The Intent Behind the Cryptic Concurrence That Provided a Reporter’s Privilege, 13 Commc’n L. & Pol’y 379, 381–82 (2008) (contending, based on historical research, that Justice Powell intended to support recognition of a qualified reporter’s privilege). For years, the lower courts have puzzled over how to interpret the case. See Christina Koningisor, The De Facto Reporter’s Privilege, 127 Yale L.J. 1176, 1196–98 (2018) (describing the split among the circuits). More recently, however, the trend among lower courts has been to read the case more narrowly. See, e.g., McKevitt v. Pallasch, 339 F.3d 530, 532 (7th Cir. 2003) (Posner, J.) (“A large number of cases conclude, rather surprisingly in light of Branzburg, that there is a reporter’s privilege . . . .”); see also RonNell Andersen Jones, Media Subpoenas: Impact, Perception, and Legal Protection in the Changing World of American Journalism, 84 Wash. L. Rev. 317, 346 & n.111 (2009) (suggesting that “media-generous reading[s] [of] Branzburg” were in decline).Show More In a 5-4 decision, the Court held there is no First Amendment privilege allowing reporters to shield confidential sources in response to a grand jury subpoena.9 9.Branzburg, 408 U.S. at 667–68.Show More A central assertion the Court made to justify this conclusion was that such a privilege was unnecessary. Justice Bryon White, writing for the majority, noted that the press had flourished for 200 years without a privilege and had proven capable of engaging in its own self-defense. “[T]he press has at its disposal powerful mechanisms of communication and is far from helpless to protect itself from harassment or substantial harm,” he wrote.10 10.Id. at 706.Show More The Court assumed that the press possessed the economic, political, cultural, and social clout needed to protect itself and penetrate government secrecy without judicial assistance.

This is no longer true today. The institutional press has been in free fall for more than two decades.11 11.See infra Section II.A.Show More Cycles of layoffs have stripped talent and expertise from newsrooms, and wide swaths of the country now qualify as “news deserts,” without any local newspapers and often no local press presence at all to keep communities informed and hold government actors accountable.12 12.Penelope Muse Abernathy, Ctr. for Innovation & Sustainability in Loc. Media, News Deserts and Ghost Newspapers: Will Local News Survive? 8 (June 24, 2020), https://www.usnewsdeserts.com/wp-content/uploads/‌2020/‌06/2020_News_‌Deserts_‌and‌_‌Gh‌ost_Newspapers.pdf [https://perma.cc/87KA-BHCP]; see also Steven Waldman, The Local-News Crisis Is Weirdly Easy to Solve, Atlantic (Aug. 8, 2023), https://www.theatlantic.com/‌ideas/archive/2023/08/local-news-investment-economic-value/674942/ [https://perma.cc/‌K3‌3J-RNFA] (“On average, two newspapers close each week. Some 1,800 communities that used to have local news now don’t.”).Show More Meanwhile, public trust in the media has declined dramatically.13 13.Megan Brenan, Americans’ Trust in Media Dips to Second Lowest on Record, Gallup (Oct. 7, 2021), https://news.gallup.com/poll/355526/americans-trust-media-dips-second-low‌est-record.aspx [https://perma.cc/R7B8-R9B4].Show More Even so, Branzburg v. Hayes’s assumptions about press power remain part of the foundational legal backdrop framing the relationship between the executive branch and the press—and, by extension, the public.

This Article reexamines the premises of Branzburg, along with those of other landmark cases and critical legislation addressing government control of information. This body of law includes foundational Supreme Court decisions defining the press’s right to gather news and access government information. It also includes landmark government transparency and accountability legislation, such as federal and state freedom of information laws.14 14.See infra Section I.B.Show More

Revisiting these sources uncovers two key assumptions upon which the government-press legal regime has been built. The first is that the institutional press is a powerful actor capable of asserting its professional interests and checking executive branch overreach at all levels of government—through the courts, via legislation, and by appealing directly to the public in the pages of its own publications.15 15.This Article uses the term “the executive” to refer to executive officials and agencies at federal, state, and local levels of government. This includes the president and federal agencies; state governors and state agencies; and local elected officials and local agencies, including local law enforcement agencies.Show More The second is that executive branch officials are bound by various internal and external constraints on their ability to keep information secret.

Judges and legislators have long assumed that the combination of a robust press and a constrained executive would establish a rough balance between the press’s desire to uncover secrets and the executive’s desire to keep information hidden. Key First Amendment cases from this era, including Branzburg, New York Times Co. v. United States (The Pentagon Papers Case), and Houchins v. KQED, Inc., embody this view.16 16.See infra Section I.C.Show More Alexander Bickel famously described this as the “disorderly situation.”17 17.Alexander Bickel, The Morality of Consent 80 (1975).Show More Cass Sunstein, in turn, has referred to it as an “equilibrium model of the first amendment.”18 18.Cass R. Sunstein, Government Control of Information, 74 Calif. L. Rev. 889, 890 (1986). The First Amendment equilibrium is not intended to capture all of First Amendment law. It focuses more narrowly on a subset of cases and statutes that establish the legal foundation that governs press-government relations. See id.Show More

Both pillars of this constitutional equilibrium have been destabilized in recent years. The power and influence of the institutional press, particularly at state and local levels, has dramatically declined.19 19.See Brenan, supra note 13. Of course, there are exceptions. A handful of institutional media actors and some non-institutional ones continue to uncover secrets that the executive branch would prefer to withhold at the national level. See discussion infra notes 215–21 and accompanying text; see also Azmat Khan, Hidden Pentagon Records Reveal Patterns of Failure in Deadly Airstrikes, N.Y. Times (Dec. 18, 2021), https://www.nytimes.com/‌interactive/2021/12/18/us/airstrikes-pentagon-records-civilian-deaths.html [https://perma.cc/‌WZ34-VXQQ] (“Except for the rare instances of revelation and subsequent outcry, the Pentagon’s brief published reports on the minority of cases it finds credible are the only public acknowledgment of the air war’s civilian toll. The Times’s reporting in Iraq, Syria and Afghanistan points to the broader truth.”). However, some of these actors have faced serious consequences, including prosecution, for doing so. See, e.g., Press Release, U.S. Dep’t of Just., WikiLeaks Founder Julian Assange Charged in 18-Count Superseding Indictment (May 23, 2019), https://www.justice.gov/opa/pr/wikileaks-founder-julian-assange-charged-18-count-superseding-indictment [https://perma.cc/S52X-5SG8]. Further, the ability of media actors to perform a watchdog role at the national level is not matched at the local level. See discussion infra Section II.A.Show More At the same time, many intra- and intergovernmental checks on the executive branch no longer operate as effective constraints against government secrecy.20 20.See infra Section II.B; see also Neal Kumar Katyal, Internal Separation of Powers: Checking Today’s Most Dangerous Branch from Within, 115 Yale L.J. 2314, 2316 (2006) (“The first-best concept of ‘legislature v. executive’ checks and balances must be updated to contemplate second-best ‘executive v. executive’ divisions.”).Show More This combination of a hollowed-out press and an unchecked executive has given rise to a First Amendment disequilibrium—a development that has been largely overlooked by the courts. The collapse of the institutional press at state and local levels and its further consolidation at the national level, together with the unleashing of many intergovernmental constraints on executive branch secrecy, has undermined a cornerstone of First Amendment law. These developments have jeopardized the press’s ability to check the executive branch and disseminate truthful information to the public.21 21.In this sense, this Article is in keeping with Tim Wu’s influential essay. See Tim Wu, Is the First Amendment Obsolete?, 117 Mich. L. Rev. 547 (2018). In that essay, Wu observes that a core set of First Amendment cases were decided at a time when there was information scarcity and government suppression of dissent was the primary threat to free speech. Id. at 548. He argues that these previous First Amendment holdings do not necessarily hold up under the conditions of the digital public sphere today, in which an abundance of cheap and easily manipulated speech threatens the nation’s information ecosystem. Id. at 548–49. This Article identifies a similar mismatch between the economic and political conditions under which the major First Amendment press cases were decided and those decided today.Show More

Existing scholarship fails to fully describe the forces destabilizing this equilibrium or the threat they pose to democratic self-governance. A prominent strand of recent First Amendment scholarship highlights how the Roberts Court’s deregulatory turn has contributed to a disordered information ecosystem.22 22.See, e.g., Richard L. Hasen, Cheap Speech and What It Has Done (To American Democracy), 16 First Amend. L. Rev. 200, 216–18 (2018) (describing how First Amendment restrictions on campaign finance laws can facilitate misinformation campaigns); Amanda Shanor, The New Lochner, 2016 Wis. L. Rev. 133, 202 (arguing that this deregulatory approach to the First Amendment concentrates power in the hands of a few and “displaces the policy preferences and the mechanisms for intelligent policy-preference development of a broader public with those of a smaller elite”); Ari Ezra Waldman, The Marketplace of Fake News, 20 U. Pa. J. Const. L. 845, 863–65 (2018) (describing how First Amendment protections for false speech limit the effect of consumer protection laws in addressing misinformation); Morgan N. Weiland, Expanding the Periphery and Threatening the Core: The Ascendant Libertarian Speech Tradition, 69 Stan. L. Rev. 1389, 1393–94 (2017) (arguing that “the outward creep of the First Amendment . . . risks undermining the theoretical traditions of the First Amendment itself, especially with respect to listeners’ rights and individual autonomy”).Show More Based on this diagnosis, scholars and policymakers have sought cures for these disorders in various sources of law, including antitrust law,23 23.See, e.g., Staff of H. Subcomm. on Antitrust, Com., & Admin. L. of the Comm. on the Judiciary, 117th Cong., Investigation of Competition in Digital Markets 13 (Comm. Print 2022).Show More consumer protection law,24 24.See, e.g., Callum Borchers, How the Federal Trade Commission Could (Maybe) Crack Down on Fake News, Wash. Post (Jan. 30, 2017, 12:22 PM), https://www.washingtonpost.‌com/‌news/the-fix/wp/2017/01/30/how-the-federal-trade-commission-could-maybe-crack-down-on-fake-news/ [https://perma.cc/CDV3-MBNR] (describing how consumer protection laws could be harnessed to attack misinformation campaigns).Show More and the laws governing intermediary liability.25 25.See, e.g., Noah Feldman, Free Speech, Libel and the Truth After Pizzagate, Bloomberg (Dec. 16, 2016, 12:24 PM), https://www.bloomberg.com/opinion/articles/2016-12-16/free-sp‌eech-libel-and-the-truth-after-pizzagate#xj4y7vzkg [https://perma.cc/WSJ7-8EEF].Show More Yet this body of work has not fully captured the extent to which the nation’s information ecosystem is dependent on the body of law—both statutory and constitutional—that defines the rights of the press in the contest for control of information.

Media law scholars have focused more squarely on this legal regime. They have identified the crucial role of legislation in enabling the press to inform the public,26 26.David A. Anderson, Freedom of the Press, 80 Tex. L. Rev. 429, 432 (2002) (discussing the importance of nonconstitutional protections for the press).Show More recognized the inadequacy of constitutional protections for news-gathering,27 27.See generally Sonja West, Awakening the Press Clause, 58 UCLA L. Rev. 1025 (2011) (explaining that the Supreme Court does not recognize any independent right or protection arising solely from the Press Clause).Show More and emphasized how the fragility of the press compromises its ability to play its watchdog role.28 28.RonNell Andersen Jones, Litigation, Legislation, and Democracy in a Post-Newspaper America, 68 Wash. & Lee L. Rev. 557, 570–71 (2011) (showing how the decline of news-gathering resources is undermining democracy); Luke Morgan, The Broken Branch: Capitalism, the Constitution, and the Press, 125 Pa. St. L. Rev. 1, 6 (2020) (arguing “that the institutional press is critically important in the constitutional structure, and that it is dying for reasons that have nothing to do with intentional censorship by the government and everything to do with market capitalism”).Show More Although these scholars have paid close attention to the inadequacy of legal protections for the press, they have not fully examined how the shifting power dynamics in the press-government relationship have contributed to the decay of those legal protections.29 29.There are important exceptions. See, e.g., Jones, supra note 28, at 559 (arguing that “discussions about the risks that might accompany the death of newspapers have almost entirely ignored the ramifications for development and enforcement of the law”); David McCraw & Stephen Gikow, The End to an Unspoken Bargain? National Security and Leaks in a Post-Pentagon Papers World, 48 Harv. C.R.-C.L. L. Rev. 473, 473–74 (2013) (describing the relationship between the press and the federal executive branch in the context of national security disclosures).Show More

This Article turns attention to these dynamics. It addresses the causes and consequences of First Amendment disequilibrium.30 30.In examining the press side of the balance, we build on the work of researchers who have documented the causes of the economic decline of the institutional press. Researchers, for example, have chronicled the dire financial consequences of the rise of online advertising and the decoupling of ad revenue from newspaper publishing.See, e.g., James T. Hamilton, Democracy’s Detectives: The Economics of Investigative Reporting 17 (2016); Martha Minow, Saving the News 19–20, 34–35 (2021); Jones, supra note 28, at 562–63, 568; RonNell Andersen Jones & Sonja R. West, The Fragility of the Free American Press, 112 Nw. U. L. Rev. 567, 576–78 (2017). We also look to the impact the economic decline of the institutional press has had on the democratic process. See, e.g., Joshua P. Darr, Matthew P. Hitt & Johanna L. Dunaway, Newspaper Closures Polarize Voting Behavior, 68 J. Commc’n 1007, 1008 (2018) (showing that when a local newspaper closes, voting becomes more polarized); Sam Schulhofer-Wolf & Miguel Garrido, Do Newspapers Matter? Short-Run and Long-Run Evidence from the Closure of The Cincinnati Post, 26 J. Media Econ. 60, 61 (2011) (finding that in the wake of a newspaper closure, voter turnout and campaign spending fell); Pengjie Gao, Chang Lee & Dermot Murphy, Financing Dies in Darkness? The Impact of Newspaper Closures on Public Finance 4–5, 21 (Hutchins Ctr. on Fiscal & Monetary Pol’y at Brookings, Working Paper No. 44, 2018), https://www.brookings.edu/wp-content/‌uploads/‌2018/‌09/‌WP‌44.pdf [https://perma.cc/XKA5-3EUK] (finding that, in the wake of a newspaper closure, the salaries of top government officials rose). Finally, we incorporate insights from those researchers who have examined various pathologies of democratic discourse in the social media era, including the rise of misinformation and political polarization, and demonstrated how this rise corresponds with a loss of public confidence in the press as an arbiter of truth. See, e.g., Hunt Allcott & Matthew Gentzkow, Social Media and Fake News in the 2016 Election, 31 J. Econ. Persps. 211, 212–13 (2017) (evaluating the consumption of fake news on social media platforms prior to the 2016 presidential election); Jane R. Bambauer, Snake Oil Speech, 93 Wash. L. Rev. 73, 83 (2018) (arguing in favor of greater government intervention to regulate fake speech); Caroline Mala Corbin, The Unconstitutionality of Government Propaganda, 81 Ohio St. L.J. 815, 820 (2020) (proposing that the government violates the speech clause of the First Amendment by spreading false information to citizens); Hasen, supra note 22, at 204–05 (describing the role that the decline of newspapers and the rise of social media has played in the spread of misinformation during election campaigns); Helen Norton, The Government’s Lies and the Constitution, 91 Ind. L.J. 73, 74–75 (2015) (exploring constitutional limits on the government’s authority to lie).Show More It also offers remedies designed to aid the press in combatting government secrecy, informing the electorate, and checking governmental abuses of power. Revisiting this legal regime reveals how much of the nation’s information infrastructure has been constructed around a set of factual assumptions about the press and the government that no longer hold true. This insight, in turn, opens up new paths for reforming key parts of the public sphere.

The Article proceeds in four parts. Part I describes how the Supreme Court and legislatures of the 1960s and ’70s enshrined into law a “First Amendment equilibrium” that continues to set the terms of the struggle between the press and the executive branch over control of information. It examines the growing power of the press and the adoption of various constraints on the executive’s control of information in the wake of the Vietnam War and Watergate.31 31.See Jonathan M. Ladd, Why Americans Hate the Media and How It Matters 6 (2012) (“The existence of an independent, powerful, widely respected news media establishment is an historical anomaly. Prior to the twentieth century, such an institution had never existed in American history.”).Show More It then maps the ways that assumptions about both the strength of the press and the constraints on government have been baked into the current legal regime. It traces these two assumptions throughout the major press cases of this era, as well as through the construction of the major transparency statutes and intergovernmental checks enacted at both the federal and state levels in this period.

Part II examines the current state of disequilibrium between the government and the press. It describes the collapse of press power and the erosion of many Watergate-era intergovernmental constraints. It then traces the impact of this disequilibrium on various parts of the law, including the law governing access to national security secrets, the protection of confidential sources, and the development of constitutional and statutory rights of information access. In doing so, it also explores the extent to which obsolete assumptions about power dynamics and dependencies within the government-press relationship permeate First Amendment theory in a manner that thwarts today’s press from playing its constitutionally assigned role as government watchdog and enabler of democratic self-governance.

Part III surveys potential critiques of the First Amendment equilibrium model, including the views that this equilibrium is undesirable or unimportant, or that it was a fiction from the start. Part IV then concludes with potential remedies to the current disequilibrium. It asks how we might recalibrate the equilibrium destabilized by the collapse of key segments of the press. It argues that there are two central paths forward: fixing the press, so that there is sufficient public oversight of government; and fixing the law, so that the distortions caused by the press’s decline are minimized.

  1.  Josiah Bates, How a Journalist’s Refusal to Testify Against the Black Panthers Changed First Amendment Rights, Time (Feb. 28, 2022, 2:41 PM), https://time.com/6149443/earl-cald‌well-black-panthers-fbi/ [https://perma.cc/KP5X-L97H]. ↑
  2.  Id. ↑
  3.  Id. ↑
  4.  Branzburg v. Hayes, 408 U.S. 665, 675–77 (1972). ↑
  5.  Id. at 665. Branzburg was a consolidation of four separate cases. In addition to the case involving Caldwell, see id. at 675, there were two cases involving a Kentucky newspaper reporter who reported on individuals making hashish and using illegal drugs. Id. at 667–69. A third involved a television reporter in Massachusetts who obtained information while inside the headquarters of the Black Panthers. Id. at 672–73. The reason the reporters advanced this constitutional claim was that there were no federal or state shield laws available to offer protection. One of the consolidated cases involved a federal grand jury, and there was (and is) no federal shield statute. Id. at 689. One involved a state grand jury in Massachusetts, which had no shield statute at the time. Id. The other two involved a grand jury in Kentucky, whose shield statute was held to be inapplicable. Id. at 668–70. ↑
  6.  Id. at 681 (“The heart of the claim is that the burden on news gathering resulting from compelling reporters to disclose confidential information outweighs any public interest in obtaining the information.”). ↑
  7.  Id. at 680–81, 691–92. ↑
  8.  Id. The holding in this case is debated. Much of the confusion stems from a concurrence written by Justice Powell—who served as the majority’s fifth vote—which seemed to advocate for a First Amendment balancing test that the majority had expressly rejected. Id. at 709–10 (Powell, J., concurring); see Michele Bush Kimball, The Intent Behind the Cryptic Concurrence That Provided a Reporter’s Privilege, 13 Commc’n L. & Pol’y 379, 381–82 (2008) (contending, based on historical research, that Justice Powell intended to support recognition of a qualified reporter’s privilege). For years, the lower courts have puzzled over how to interpret the case. See Christina Koningisor, The De Facto Reporter’s Privilege, 127 Yale L.J. 1176, 1196–98 (2018) (describing the split among the circuits). More recently, however, the trend among lower courts has been to read the case more narrowly. See, e.g., McKevitt v. Pallasch, 339 F.3d 530, 532 (7th Cir. 2003) (Posner, J.) (“A large number of cases conclude, rather surprisingly in light of Branzburg, that there is a reporter’s privilege . . . .”); see also RonNell Andersen Jones, Media Subpoenas: Impact, Perception, and Legal Protection in the Changing World of American Journalism, 84 Wash. L. Rev. 317, 346 & n.111 (2009) (suggesting that “media-generous reading[s] [of] Branzburg” were in decline). ↑
  9.  Branzburg, 408 U.S. at 667–68. ↑
  10.  Id. at 706. ↑
  11.  See infra Section II.A. ↑
  12.  Penelope Muse Abernathy, Ctr. for Innovation & Sustainability in Loc. Media, News Deserts and Ghost Newspapers: Will Local News Survive? 8 (June 24, 2020), https://www.usnewsdeserts.com/wp-content/uploads/‌2020/‌06/2020_News_‌Deserts_‌and‌_‌Gh‌ost_Newspapers.pdf [https://perma.cc/87KA-BHCP]; see also Steven Waldman, The Local-News Crisis Is Weirdly Easy to Solve, Atlantic (Aug. 8, 2023), https://www.theatlantic.com/‌ideas/archive/2023/08/local-news-investment-economic-value/674942/ [https://perma.cc/‌K3‌3J-RNFA] (“On average, two newspapers close each week. Some 1,800 communities that used to have local news now don’t.”). ↑
  13.  Megan Brenan, Americans’ Trust in Media Dips to Second Lowest on Record, Gallup (Oct. 7, 2021), https://news.gallup.com/poll/355526/americans-trust-media-dips-second-low‌est-record.aspx [https://perma.cc/R7B8-R9B4]. ↑
  14.  See infra Section I.B. ↑
  15.  This Article uses the term “the executive” to refer to executive officials and agencies at federal, state, and local levels of government. This includes the president and federal agencies; state governors and state agencies; and local elected officials and local agencies, including local law enforcement agencies. ↑
  16.  See infra Section I.C. ↑
  17.  Alexander Bickel, The Morality of Consent 80 (1975). ↑
  18.  Cass R. Sunstein, Government Control of Information, 74 Calif. L. Rev. 889, 890 (1986). The First Amendment equilibrium is not intended to capture all of First Amendment law. It focuses more narrowly on a subset of cases and statutes that establish the legal foundation that governs press-government relations. See id. ↑
  19.  See Brenan, supra note 13. Of course, there are exceptions. A handful of institutional media actors and some non-institutional ones continue to uncover secrets that the executive branch would prefer to withhold at the national level. See discussion infra notes 215–21 and accompanying text; see also Azmat Khan, Hidden Pentagon Records Reveal Patterns of Failure in Deadly Airstrikes, N.Y. Times (Dec. 18, 2021), https://www.nytimes.com/‌interactive/2021/12/18/us/airstrikes-pentagon-records-civilian-deaths.html [https://perma.cc/‌WZ34-VXQQ] (“Except for the rare instances of revelation and subsequent outcry, the Pentagon’s brief published reports on the minority of cases it finds credible are the only public acknowledgment of the air war’s civilian toll. The Times’s reporting in Iraq, Syria and Afghanistan points to the broader truth.”). However, some of these actors have faced serious consequences, including prosecution, for doing so. See, e.g., Press Release, U.S. Dep’t of Just., WikiLeaks Founder Julian Assange Charged in 18-Count Superseding Indictment (May 23, 2019), https://www.justice.gov/opa/pr/wikileaks-founder-julian-assange-charged-18-count-superseding-indictment [https://perma.cc/S52X-5SG8]. Further, the ability of media actors to perform a watchdog role at the national level is not matched at the local level. See discussion infra Section II.A. ↑
  20.  See infra Section II.B; see also Neal Kumar Katyal, Internal Separation of Powers: Checking Today’s Most Dangerous Branch from Within, 115 Yale L.J. 2314, 2316 (2006) (“The first-best concept of ‘legislature v. executive’ checks and balances must be updated to contemplate second-best ‘executive v. executive’ divisions.”). ↑
  21.  In this sense, this Article is in keeping with Tim Wu’s influential essay. See Tim Wu, Is the First Amendment Obsolete?, 117 Mich. L. Rev. 547 (2018). In that essay, Wu observes that a core set of First Amendment cases were decided at a time when there was information scarcity and government suppression of dissent was the primary threat to free speech. Id. at 548. He argues that these previous First Amendment holdings do not necessarily hold up under the conditions of the digital public sphere today, in which an abundance of cheap and easily manipulated speech threatens the nation’s information ecosystem. Id. at 548–49. This Article identifies a similar mismatch between the economic and political conditions under which the major First Amendment press cases were decided and those decided today. ↑
  22.  See, e.g., Richard L. Hasen, Cheap Speech and What It Has Done (To American Democracy), 16 First Amend. L. Rev. 200, 216–18 (2018) (describing how First Amendment restrictions on campaign finance laws can facilitate misinformation campaigns); Amanda Shanor, The New Lochner, 2016 Wis. L. Rev. 133, 202 (arguing that this deregulatory approach to the First Amendment concentrates power in the hands of a few and “displaces the policy preferences and the mechanisms for intelligent policy-preference development of a broader public with those of a smaller elite”); Ari Ezra Waldman, The Marketplace of Fake News, 20 U. Pa. J. Const. L. 845, 863–65 (2018) (describing how First Amendment protections for false speech limit the effect of consumer protection laws in addressing misinformation); Morgan N. Weiland, Expanding the Periphery and Threatening the Core: The Ascendant Libertarian Speech Tradition, 69 Stan. L. Rev. 1389, 1393–94 (2017) (arguing that “the outward creep of the First Amendment . . . risks undermining the theoretical traditions of the First Amendment itself, especially with respect to listeners’ rights and individual autonomy”). ↑
  23.  See, e.g., Staff of H. Subcomm. on Antitrust, Com., & Admin. L. of the Comm. on the Judiciary, 117th Cong., Investigation of Competition in Digital Markets 13 (Comm. Print 2022). ↑
  24.  See, e.g., Callum Borchers, How the Federal Trade Commission Could (Maybe) Crack Down on Fake News, Wash. Post (Jan. 30, 2017, 12:22 PM), https://www.washingtonpost.‌com/‌news/the-fix/wp/2017/01/30/how-the-federal-trade-commission-could-maybe-crack-down-on-fake-news/ [https://perma.cc/CDV3-MBNR] (describing how consumer protection laws could be harnessed to attack misinformation campaigns). ↑
  25.  See, e.g., Noah Feldman, Free Speech, Libel and the Truth After Pizzagate, Bloomberg (Dec. 16, 2016, 12:24 PM), https://www.bloomberg.com/opinion/articles/2016-12-16/free-sp‌eech-libel-and-the-truth-after-pizzagate#xj4y7vzkg [https://perma.cc/WSJ7-8EEF]. ↑
  26.  David A. Anderson, Freedom of the Press, 80 Tex. L. Rev. 429, 432 (2002) (discussing the importance of nonconstitutional protections for the press). ↑
  27.  See generally Sonja West, Awakening the Press Clause, 58 UCLA L. Rev. 1025 (2011) (explaining that the Supreme Court does not recognize any independent right or protection arising solely from the Press Clause). ↑
  28.  RonNell Andersen Jones, Litigation, Legislation, and Democracy in a Post-Newspaper America, 68 Wash. & Lee L. Rev. 557, 570–71 (2011) (showing how the decline of news-gathering resources is undermining democracy); Luke Morgan, The Broken Branch: Capitalism, the Constitution, and the Press, 125 Pa. St. L. Rev. 1, 6 (2020) (arguing “that the institutional press is critically important in the constitutional structure, and that it is dying for reasons that have nothing to do with intentional censorship by the government and everything to do with market capitalism”). ↑
  29.  There are important exceptions. See, e.g., Jones, supra note 28, at 559 (arguing that “discussions about the risks that might accompany the death of newspapers have almost entirely ignored the ramifications for development and enforcement of the law”); David McCraw & Stephen Gikow, The End to an Unspoken Bargain? National Security and Leaks in a Post-Pentagon Papers World, 48 Harv. C.R.-C.L. L. Rev. 473, 473–74 (2013) (describing the relationship between the press and the federal executive branch in the context of national security disclosures). ↑
  30.  In examining the press side of the balance, we build on the work of researchers who have documented the causes of the economic decline of the institutional press. Researchers, for example, have chronicled the dire financial consequences of the rise of online advertising and the decoupling of ad revenue from newspaper publishing. See, e.g., James T. Hamilton, Democracy’s Detectives: The Economics of Investigative Reporting 17 (2016); Martha Minow, Saving the News 19–20, 34–35 (2021); Jones, supra note 28, at 562–63, 568; RonNell Andersen Jones & Sonja R. West, The Fragility of the Free American Press, 112 Nw. U. L. Rev. 567, 576–78 (2017). We also look to the impact the economic decline of the institutional press has had on the democratic process. See, e.g., Joshua P. Darr, Matthew P. Hitt & Johanna L. Dunaway, Newspaper Closures Polarize Voting Behavior, 68 J. Commc’n 1007, 1008 (2018) (showing that when a local newspaper closes, voting becomes more polarized); Sam Schulhofer-Wolf & Miguel Garrido, Do Newspapers Matter? Short-Run and Long-Run Evidence from the Closure of The Cincinnati Post, 26 J. Media Econ. 60, 61 (2011) (finding that in the wake of a newspaper closure, voter turnout and campaign spending fell); Pengjie Gao, Chang Lee & Dermot Murphy, Financing Dies in Darkness? The Impact of Newspaper Closures on Public Finance 4–5, 21 (Hutchins Ctr. on Fiscal & Monetary Pol’y at Brookings, Working Paper No. 44, 2018), https://www.brookings.edu/wp-content/‌uploads/‌2018/‌09/‌WP‌44.pdf [https://perma.cc/XKA5-3EUK] (finding that, in the wake of a newspaper closure, the salaries of top government officials rose). Finally, we incorporate insights from those researchers who have examined various pathologies of democratic discourse in the social media era, including the rise of misinformation and political polarization, and demonstrated how this rise corresponds with a loss of public confidence in the press as an arbiter of truth. See, e.g., Hunt Allcott & Matthew Gentzkow, Social Media and Fake News in the 2016 Election, 31 J. Econ. Persps. 211, 212–13 (2017) (evaluating the consumption of fake news on social media platforms prior to the 2016 presidential election); Jane R. Bambauer, Snake Oil Speech, 93 Wash. L. Rev. 73, 83 (2018) (arguing in favor of greater government intervention to regulate fake speech); Caroline Mala Corbin, The Unconstitutionality of Government Propaganda, 81 Ohio St. L.J. 815, 820 (2020) (proposing that the government violates the speech clause of the First Amendment by spreading false information to citizens); Hasen, supra note 22, at 204–05 (describing the role that the decline of newspapers and the rise of social media has played in the spread of misinformation during election campaigns); Helen Norton, The Government’s Lies and the Constitution, 91 Ind. L.J. 73, 74–75 (2015) (exploring constitutional limits on the government’s authority to lie). ↑

  31.  See Jonathan M. Ladd, Why Americans Hate the Media and How It Matters 6 (2012) (“The existence of an independent, powerful, widely respected news media establishment is an historical anomaly. Prior to the twentieth century, such an institution had never existed in American history.”). ↑

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