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Friday, August 21, 2020

After the Golden Age: The Fragility of the Fourth Estate

The period between 1964 and 1984 was the Golden Age of press cases in the United States Supreme Court. In that twenty-year span, the Court decided more landmark press cases than ever before or since. The press cases decided during this Golden Age contain some of the US Supreme Court’s loftiest rhetoric about the role the press plays in our democracy, and when read as a whole, the cases evince a strong commitment to the idea that the press serves as the Fourth Estate—the unofficial branch of government tasked with checking the other three. Though the Court never wholly embraces the terminology of the Fourth Estate, its foundational decisions contemplate the press playing a vital role in our constitutional scheme of separation of powers. This role makes the press the watchdog that informs us what the legislative, executive, and judicial branches of government are up to and continually replenishes the stock of news – real news – that enables informed public discussion and rational public policy. 

As I hope to show in an article I've been working on for some time now, the Court during the Golden Age implicitly recognized that the press was a powerful institution that could protect its role in fostering democratic discourse between government and its citizens. Although the Court recognized in dicta the special role played by the press in democracies, the Court was reluctant to grant special privileges to an institution that could leverage its power and resources to fight against incursions by the official branches of government. Thus, the Court granted the press (and often simultaneously individual speakers) strong constitutional protection from direct government censorship, such as prior restraints or compelled publication, but was reluctant to grant affirmative rights such as access to information in government hands (with press and public access to criminal trials being a notable exception).

At the time, the Court had before it impressive examples of the press performing its role of checking government abuse of power and informing citizens without any assistance from the government. The press had the resources and will to deploy investigative expertise, leverage public opinion, and pursue legal challenges to fend off attempts by the legislature or executive branches to limit press power. Moreover, the press of the day played a critical role as an intermediary, facilitating communications between and among the legislative, executive and judicial branches with the public.  In light of this, the Court's reluctance to grant "special rights" or exemptions from generally applicable laws to the media is understandable. It explains how the Court could lionize the press in its rhetoric but still reiterate that the First Amendment provided the press no rights beyond those granted to the public: the press of the Golden Age simply didn't need government assistance to fulfill its democratic functions. Just as the official branches of government must leverage their political power to win battles in the public arena, so, too, did the Court expect the press to leverage its power and resources to protect its ability to function as the Fourth Estate. 

What about now? The press of today bears little resemblance to the press of the Golden Age, and the assumptions about press power underlying the Supreme Court's Golden Age press cases deserve renewed scrutiny.

The institutional press is no longer the powerful juggernaut of the Watergate era, united by a set of professional norms and capable of uncovering corruption at the highest levels of government by deploying sustained and expensive investigative expertise. Instead, the institutional press has been beset by devastating competitive and economic forces. Advertisers have fled. Just since 2008, newsrooms lost half their employees--and that was BEFORE the pandemic, which promises further newsroom carnage. Traditional media continue to face a crisis of legitimacy, with public opinion about their performance split along partisan lines. The public increasingly turns to social media speakers rather than traditional media for information, further eroding traditional media’s roles as gatekeepers and translators of news and information. At the same time, the President of the United States has conducted a sustained campaign to undermine the credibility of traditional news media, branding them "fake news" and the "enemy of the people" in over 1,900 anti-press tweets between 2015 and 2019. He has also sued journalists for libel, has tried to bar critical reporters from White House press briefings, and has issued executive orders designed to silence other critics. (To be fair, the prior President wasn't great for the press, either). Meanwhile, money to hire media lawyers to litigate these issues is in short supply.

What seems clear is that traditional media's ability to play the role of Fourth Estate is declining, and there is no obvious successor stepping into the breach. Instead, we are faced with a diminishing supply of reliable information about what our government is up to, with serious consequences for our democracy.

In my new article, I expect to argue that at a minimum, this decline should lead us to reexamine the assumptions underlying the Golden Age press freedom cases. If the press is less able to use "self-help" to maintain the separation of powers”\ between itself and the official branches of government, than perhaps it is time to impose more affirmative constitutional obligations on government officials to enable an institution or individuals to play a watchdog role. Perhaps some "special rights" must be accorded to those willing and able scrutinize our officials and provide reliable information about what they're up to. Even though dicta in Roberts Court decisions suggests skepticism of, if not outright hostility to, the press, our democracy depends on an informed citizenry armed with facts and not just opinions about those who govern them.  From that perspective, analysis of whether the First Amendment might play a role in shoring up today's Fourth Estate seems overdue. 

Posted by Lyrissa Lidsky on August 21, 2020 at 05:15 PM in Constitutional thoughts, Current Affairs, First Amendment, Lyrissa Lidsky | Permalink


I have been reading the Los Angeles Times (along with various other more local papers depending on where I've lived) since 1970. My wife works at a hospital where virtually none of her co-workers read a newspaper and very few watch even a cable news program. Their social media sources for news are unreliable and often shoddy (noting that more than a few confess to avoiding the news altogether!). This is immediately evident when one tries to carry on a conversation about anything of significance with regard to public or foreign policy, or what we used to christen a major news event. I know some people of course do not get a hard copy of a major newspaper, preferring to read an online version (I often look at this or that article from other newspapers online, like the NY Times or Washington Post) and there are millions of cable news viewers (although to call FOX News a news program on the order of those of yesteryear is to confuse unabashed propaganda with news). But let’s be frank, entertainment and especially “reality” TV now trumps mass media news in a manner perhaps heretofore unimaginable, I certainly did not think it possible in a (would-be) democratic republic ... that is, until I attained middle age (and reading Chris Hedges convinced me of the depth and breadth of the many deleterious consequences). All the great theorists and philosophers of democracy stressed the importance of an educated public if a democratic polity was to survive, let alone flourish, and today, alas, we daily witness and experience the horrific symptoms of an ill-informed and poorly educated mass of people alongside the political and economic elites (and their corresponding ideologies) that have won their shrunken hearts and small minds. The Fourth Estate is no longer an estate, an alarming state of affairs only exacerbated by our eviscerated system of public education, which remains obdurately segregated and insufficiently supported and funded (hence the appointment of a Secretary of Education who does not believe in the myriad values of public education, apart from the fact that she lacks sufficient qualifications or expertise for the position). And the motley problems plaguing the press are not simply legal in nature (let’s not romanticize the ‘Golden Age,’ which is easy to do give the current state of affairs by comparison) but economic as well. I have a bibliography that includes titles addressing the economic issues here: https://www.academia.edu/4844091/Mass_Media_Politics_Political_Economy_and_Law_A_Select_Bibliography

Posted by: Patrick S. O'Donnell | Aug 25, 2020 9:11:37 AM

The federal district court in Portland, Oregon recently granted special rights to the press, holding that police orders to disperse directed to an unruly or riotous crowd could not be applied to members of the press who were observing the events. The rule was limited to those members of the press who wore press credentials or otherwise visibly indicated that they were with the press. Of course, as anyone with an ounce of common sense could have predicted, since that order was handed down, many of the rioters now wear large "press" placards or other "press" signage.

Posted by: Douglas Levene | Aug 22, 2020 11:05:04 PM

We're a republic--not a democracy.

Posted by: thegreatdisappointment | Aug 22, 2020 4:21:14 AM

And here, very important one, recently in the Supreme Court of Canada:


Posted by: El roam | Aug 21, 2020 6:42:23 PM

And here a central ruling in England in this regard:


Posted by: El roam | Aug 21, 2020 6:39:00 PM

Important post. Many complications here. Worth to mention also in this regard, the fact, that contrary to many Western and democratic states, the Supreme court, denied the press or journalists, the confidentiality of sources, and in criminal cases, they must testify or reveal the source of information or leak held by them.

Here for example in BRANZBURG v. HAYES:



Posted by: El roam | Aug 21, 2020 6:32:16 PM

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