Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Monday, July 23, 2012

The First Amendment and a Definition of the Press

Chris Edelson, American University, has published Lies, Damned Lies, and Journalism: Why Journalists are Failing to Vindicate First Amendment Values and How a New Definition of 'The Press' Can Help. Here is the abstract.

This article identifies a specific problem – journalists who fail to provide the public with the accurate information needed to foster informed public opinion – and offers a specific solution: defining “the press” to provide protections and prestige only to those whose work actually advances First Amendment values.

American journalistic norms facilitate lying by politicians, candidates for office, and other public figures. Because many journalists are committed to the ideal of balance over truth, they are often incapable of calling out lies. Instead, they create a false equivalence by suggesting there are two sides to every argument, even when one side is demonstrably false. Politicians and other public figures are able to exploit this reality by making false statements with impunity, secure in the knowledge that journalists will not expose their deceptions.

Scholars like Robert C. Post, Paul Horwitz, Mark Tushnet and others have recently focused on the questions of whether false statements contain constitutional value and when false statements may be regulated by the government. Although Post’s recent book, Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State, does not focus on the problem of false statements disseminated by journalists, his concept of democratic competence is especially relevant to the problem of the balance trap. By extending press membership only to those journalists whose work advances First Amendment values of truth and democratic competence, we can move toward a press corps that truly informs the public by providing accurate information and exposing false statements by elected officials and other public figures. This approach does not depend on suppressing any speech: by turning to the Press Clause, it is possible to advance democratic competence simply by redefining the press, meaning that only competent journalists will receive the status and protections associated with press membership, while other journalists will be free to practice balance trap journalism but will be denied press status.

Changing the way journalists do their work depends on a new definition of the press. Other scholars have defined the press in institutional (Schauer, Horwitz) or functional (West) terms, but, while these definitions identify a number of important considerations, each deals far too often in abstractions, failing to consider the work journalists are actually doing and whether their work merits press status. As a result, each definition is both over- and under-inclusive, providing press membership to balance trap journalists and denying press membership to some journalists who recognize and reject the balance trap approach. 

This article does something new by putting forward a definition of the press that is based on specific examples of work journalists are doing, and proposing a way to assess whether this work advances First Amendment values of truth and democratic competence. In addition, while other scholars who believe that the press deserves specific protection seek to establish the basis for that protection solely or mainly through courts or legislatures, this article does something new by identifying a central role for journalists themselves in the process. 

Ultimately, the goal of this article is to give meaning to Oliver Wendell Holmes’s assertion that “the real justification of a rule of law is that it helps to bring about a social end which we desire.” Replacing balance trap journalism with journalism that gives Americans the accurate information they need to make informed decisions is a highly desirable social end. If we want to have a better press corps, we must begin with a definition of the press that has the potential to solve the balance trap problem by recognizing only members of the press whose work truly advances First Amendment values.


Download the paper from SSRN at the link.

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