Freedom of the press

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The press is dead, God save the press.

"Freedom of the press" has less legal significance than meets the eye.

It is true, of course, that the First Amendment specifically guarantees freedom of the press as well as free speech,1 and the media often ascribe the freedom they enjoy to the Press Clause. Even the Supreme Court occasionally emits rhetoric that implies as much.2 But as a matter of positive law, the Press Clause actually plays a rather minor role in protecting the freedom of the press. Most of the freedoms everyone enjoys under the Speech Clause. The press is protected from most government censorship, libel judgments, and prior restraints not because it is the press but because the Speech Clause protects all of us from those threats.3

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At the same time, "the press," insofar as that means something more than a machine for printing, is largely a creation of law. It is a collection of individuals and entities that receive special perquisites, sometimes from private sources such as sports leagues and movie studios, but often from government. The press pass, the press gallery, the press room, the press office, the press secretary (or public-information officer), the press bus or plane, and the press poss are usually created by some form of law--statute, regulation, rule, or policy. These legal preferences are among the principal features that distinguish the press from other information businesses. In a few areas, the press seems to enjoy constitutional protections that are not available to other speakers. Newspapers, the species of media most easily

recognizable as press, are more fully protected than other media.4 The state generally can not discriminate among political candidates, but may do so when it is engaged in journalism.6 Although the Supreme Court has not endorsed the idea,7 most of the federal courts of appeal and many state supreme courts hold that the First Amendment gives reporters a right to refuse to reveal confidential sources, a right not available to most other witnesses.8 The press is also protected against forms of discriminatory taxation9 that are permissible as to other taxpayers.10

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The press is the primary beneficiary of much First Amendment jurisprudence that ostensibly applies to nonpress speakers as well. The First Amendment right of access to courtrooms is framed as a "right of public access,"11 but as a practical matter that is more likely to mean press access.12 The Court acknowledges that courtroom access for the general public may be restricted in order to provide "preferential seating for media representatives." 13 The press probably enjoys no greater freedom than the public to disclose prejudicial information about pending trials,14 but those members of the public most likely to publish such information (such as attorneys and defendants) may be restricted in ways that the press may not

be.15 The First Amendment protects a newspaper's right to publish lawfully acquired information about matters of public concern; 16 even though this right is not limited to the press,17 it is most useful to those who are in the publishing business. This benefit is enhanced by an ancillary principle that illegally acquired or illegally leaked information is still "lawfully acquired" by the publisher as long as the publisher was not involved in the initial illegality.18

Nonconstitutional sources of special protection for the press are far more numerous. The press gets preferential access to legislative chambers, executive news conferences, trials, war zones, disaster scenes, prisons, and executions. State and local statutes protect the press from otherwise legal police searches. More than half of the states have "shield laws" creating "reporters' privileges" that are sometimes broader than the First Amendment version of that privilege. The press is exempted from some securities regulations and campaign-expenditure limitations. A federal statute exempts certain newspapers from antitrust laws. Some retraction statutes create defenses that are only available to newspapers. Newspapers and magazines get special postal rates. Broadcasters get free use of spectrum that other types of users must pay for.19

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All of this constitutional and nonconstitutional discrimination in favor of the press raises some vexing questions. What is the press? Should the press receive preferential legal treatment? If so, how should those preferences be dispensed? In the past those questions have been answered with assumptions that generally went uncontested.20 The press was assumed to

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consist of newspapers, news magazines, and the news portions of broadcasting. Giving these entities special treatment apparently seemed wise or at least harmless, and the decisions as to whom to favor were rarely challenged. But, as Professor Randall Bezanson foresaw, "[T]echnology will force us to reexamine many of the most basic assumptions we hold about the role and, indeed, the meaning of the press."21 That prediction, made less than a decade ago, has already come true. Equally important are fundamental changes in the news business, which seem to undermine arguments that the media are different from other businesses. The importance of these changes is acutely understood in the journalism profession and has been extensively documented in three recent books,22 but their significance for legal treatment

of the press has not been fully appreciated.23 The technological and business developments that have transformed journalism cast doubt on many of the assumptions that underlie special legal protections for the press.

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The controversies are present and real. One simple but illustrative manifestation is the accreditation of online journalists. The Internet has converted "the lonely pamphleteer"24 from a romantic ideal to a powerful reality. Even before Matt Drudge demonstrated the online avenue to fame, people saw that they too could be journalists, without the expense of printing plants or broadcasting licenses-and without having to submit to the supervision of editors or the discipline of verification that conventional journalism imposes. One such aspirant, Vigdor Schreibman, established an online newsletter reporting on federal legislation and government information policies. Claiming to have five hundred subscribers paying $2.95 a year and ten thousand readers through online discussion groups,25 he sought Congressional press credentials. He was turned down because he could not show that his newsletter was published for profit, he did not receive a salary, and he was not a full-time journalist.26 Are these acceptable criteria for deciding who is press? Are they related to whatever it is that distinguishes the press from other information providers? Although Schreibman sued, the courts did not decide these questions because the Periodical Correspondents' Association, to which Congress has delegated the power to grant press credentials, shares Congress's immunity from suit.27

What is really at stake, of course, is not just whether Vigdor Schreibman gets a seat in the press galleries of Congress or whether Internet journalists generally come to be recognized as press. It is whether Microsoft is to receive the same legal preferences as the daily newspaper, whether the magazine division of AOL Time Warner serves a social function that deserves more legal protection than AOL, whether Disney can be expected to run ABC differently than it runs its movie studios or theme parks, whether we believe some types of information are more important than others, and whether we are prepared to let some branch of government decide what is important.

In Part I of this Article, I describe the method by which the press has been, and generally still is, defined-principally by media forms. But the traditional forms are merging and dissolving into new ones, which makes that method of defining "press" problematic. The obvious alternative is to define press in some functional way, attempting to identify an activity or function that remains constant and essential while forms of media morph and metastasize. Part II explores the possibility that "journalism" might identify the right function, but concludes that the recent conglomeration of the news business makes it difficult to distinguish journalism from other information businesses. Part III surveys the many legal sources that create special preferences for the press. In Part IV, I consider three options: giving the press no preferential legal treatment, giving it preferences but not as a matter of First Amendment law, or reading the Press Clause as a source of special protection for the press. Part V summarizes my conclusions: that technological, ideological, and economic forces are making it increasingly difficult to define and justify a special legally protected role for the press; that the demise of the press as a legally preferred institution is quite possible and perhaps even probable; and that losing the press is socially and politically risky.

I. Identifying "The Press"

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Preferential treatment of the press requires some definition of the intended beneficiaries. What is "the press"? Who qualifies as a reporter? What is a newspaper? In a world in which many, if not most, business entities are information providers, it is not easy to determine which of them are press.28 Are Internet service providers press? Databases such as Nexis or Westlaw? Online chat rooms or bulletin boards? Purveyors of Hollywood or Washington gossip? Online magazines or news services? Websites maintained by conventional media? Radio (or TV) talk shows? How about

investment and financial services or credit-reporting agencies? Companies that compile, index, and deliver public records? Is there a difference between "the press" and "the media"? I begin by surveying the methods by which those decisions have been and are being made.

A. Specific Forms of Media

"Press" could refer to one or more subsets of media, defined either by function or form. To the extent that existing law defines "the press" at all, it does so mostly in terms of specific media forms. The Supreme Court has addressed the matter only obliquely. For reasons alluded to above and discussed more fully below, it has never had to decide whether a particular litigant was "press."29 In most cases the question does not arise because the claimed right would be protected as fully by the Speech Clause as by the Press Clause. The cases in which the Court seems to rely on the Press Clause have involved newspapers or magazines whose status as press was unquestioned.30 The Court on other occasions has mentioned "publishers and broadcasters,"31 "the media,"32 "editorial judgment,"33 "editorial control," "journalistic discretion,"35 and "newsgathering"36 as possible objects of protection. The most famous discussion of the meaning of the Press Clause, a 1974 speech by Justice Stewart, identified its beneficiaries as "the daily newspapers and other established news media," or "newspapers, television networks, and magazines."37

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Typically, statutes and regulations that favor the press also focus on form or format. Postal subsidies are available to "newspapers and other periodical publications."38 The federal prohibition against newsroom searches applies to persons who intend to disseminate "a newspaper, book, broadcast, or other similar form of public communication."39 Shield statutes typically protect employees of newspapers, magazines, wire services, and

radio and television stations.40 The federal statute requiring investment advisers to register with the SEC exempts "the publisher of any bona fide newspaper, news magazine or business or financial publication of general and regular circulation."41 The California retraction statute applies only to "libel in a newspaper" or "slander by radio broadcast,"42 and most other retraction statutes contain similar limitations.43 The press galleries of Congress are open only to persons who write for "newspapers entitled to second-class mailing privileges,"44 employees of periodicals "published for profit and supported chiefly by advertising or by subscription,"45 "persons whose chief attention is given to or more than one-half of their earned income is derived from the gathering and reporting of news for radio stations, television stations, and systems engaged in the daily dissemination of news,"46 and "representatives of news-gathering agencies engaged in the daily service of news to such radio stations, television stations, or systems."47

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In the present media world, some of these criteria are difficult to defend because they bear scant relation to the purposes for which the state might want to favor the press. For example, frequency and regularity of publication are often among the criteria. But, as one court asserted, "there is no basis for giving immediate news a privileged position over other avenues of news reporting which is accompanied by more deliberative analysis or commentary" and that, "[w]ith the application of current day technology, [Newsweek's] 'news' is no more stale than that of newspapers published weekly."48 That was ten years ago; now virtually all news media, and many other sources as well, operate websites on which they post news continuously. As more media begin to deliver more of their product electronically, format-based definitions will seem increasingly dubious.

If the emergence of new media were the only problem, we could expect the law to eventually adapt to encompass them as it has done in the past. Magazines and broadcasting did not exist when the press began receiving preferred treatment, but now they are often treated as press. As more new media appear, establish their importance, and gain political power, they too may persuade courts and legislatures to accord them the perquisites of "press." That, however, tends to be a slow and haphazard process. Although television long ago became Americans' principal source of news, television cameras were excluded from the chambers of Congress for many more years, and the Supreme Court still denies broadcasting the full protection of the First Amendment.49 Second-class mailing privileges are denied to free newspapers,50 which are the fastest growing segment of the newspaper industry. Some retraction statutes still exclude magazines or broadcasting.51 In an era when technology and economics are altering the forms of media more rapidly than ever, the law's usual deliberateness in adapting to change may be even more troublesome.

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What is happening is not just the emergence of new media, however. Lines between different forms of media are blurring, making it increasingly difficult to apply medium-specific definitions.52 Today's media organizations rarely operate in a single medium. Most outlets are operated by companies that own several types of media-newspapers and television stations typically, and sometimes also magazines, books, and billboards.53 Most of the conventional media (newspapers, magazines, television stations and networks, and cable networks) now have online operations,54 some of which are sources of substantial revenues or other benefits.55 Some believe

that the future of the traditional publishing business lies in electronic media. 56 In a few instances independent online-journalism operations have expanded into conventional media.57 Some major media companies, betting their futures on convergence of media forms, are pursuing a multimedia strategy of combining print, television, Internet, radio, cable, and broadband into a single "platform."58 Time Warner Inc. and America Online Inc. merged for the purpose of combining the "old" media in which Time Warner was dominant (magazines, books, movies, and cable) with new media technologies in which America Online was a leader, in the belief that the future of the old lies with the new.59 Almost all of the major conventional media outlets now have online operations as well, and some newspapers are about to begin delivering their entire product-news, photos, layout, and ads-- online.60

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Convergence at the ownership level does not obliterate distinctions between different types of media, of course. A television station owned by a newspaper is still a television station. But one of the avowed purposes of the new collaborations between media is to cross these lines, and that is happening both within commonly owned media and between media that are still separately owned. The editor of the Chicago Tribune said, "I am not the editor of a newspaper. I am the manager of a content company.... We

gather content."61 As if to emphasize this, after completing the largest acquisition in newspaper history and thereby becoming one of the nation's largest newspaper owners,62 the Tribune Co. chose a broadcasting executive with no newspaper experience as its president.63 The Washington Post and Newsweek share news stories with NBC and MSNBC, the all-news cable channel owned by NBC and Microsoft. CNBC, NBC's business channel, has a partnership with the Wall Street Journal, and those two share a website, CNBC.WSJ.com. The Wall Street Journal also maintains its own website, WSJ.com, which in turn has links to MSNBC.com. TheStreet.com shares financial news with The New York Times and also has alliances with Fox News, Yahoo!, and America Online. CNN and Time magazine, its sister under the AOL Time Warner umbrella, collaborate on some stories, and CNN's online operation shares stories with about thirty local newspapers. ABC and The New York Times formed a partnership for coverage of the 2000 political campaign.64 Whether these combinations compromise the independence of the participants is hotly debated within the media.65

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Media convergence exists not just at the business level, but in day-to-- day operations. Today, an individual journalist often works in multiple media. Many print media arrange for their reporters to appear on television for the additional exposure that brings to the individual and the employer.66 Part of the "synergy" driving the recent mergers, such as Time Warner's acquisition of CNN and Tribune Co.'s purchase of Times Mirror Corp., is the opportunity to use the same journalists and newsgathering facilities for print outlets, broadcasting, and online operations. Supervisors in these settings

are no longer editors or news directors, but "intergroup managers."68 The practices (and jargon) of other businesses have invaded journalism, even to the point that such central functions as newsgathering may be "outsourced" to other businesses that do not fit the traditional image of press but are now performing at least a part of the press function.69 Even the newspaper is not necessarily a self-contained species of press:

[N]ewspapers are no longer unified institutions performing with ruthless independence and competitiveness the three functions of acquiring, selecting, and distributing information. In the acquiring stage, for example, newspapers today are increasingly relying on independent and specialized information gathering organizations. Many of these we call data bases, and at last estimate they number in the tens of thousands. Vast stores of information are being assembled by independent entities whose business is strictly the acquisition of information for use by others, including news organizations. Newspapers, at the same time, are finding that the acquisition functions performed within their organizations can be restricted and more focused.70

It probably is possible to continue defining the press in terms of format, method of distribution, or form of organization even though the media no longer see themselves in those terms. It makes little sense to do so, however, because there is little correlation between those forms and the purposes for which it might make sense to give preferential treatment to some media.

B. All the Media

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Many of these difficulties would disappear if the press were understood to include all the media. The Hutchins Commission, without further discussion of the matter, decided that "press" should mean all "the major agencies of mass communication" that existed in 1947.71 Many discussions

of the matter seem to use "press" and "media" interchangeably, but without actually considering whether they really are synonymous.72 If the law were to treat all media as press, freedom of the press would simply become "freedom of the media."

The phrase itself rejects the suggestion. "The press" implies the existence of something to which the collective singular can be properly applied-an institution, or at least a shared mission or common undertaking. Media, however, are gloriously, infamously, and irreversibly plural. "The media" as a singular noun has crept into the language in the last few years, perhaps in semiconscious recognition of the inadequacy of the term "the press." But the usage is unsettling. We know the media are not singular, and we therefore sense that when the term is used in the singular it must be describing some undefined subset of the media.

Most of the media are in the business of entertainment, engaged in activities that have little relation to the functions for which the law favors "the press." The entertainment media have no better claim than any other industry for special access to courtrooms or Congress, or protection for confidential sources or protection from discrimanatory taxation. If "the press" were to include the entertainment media, it would not have to include all entertainment businesses-theme parks, topless bars, and casinos, for example, are entertainment businesses but not media. But many entertainment businesses could plausibly claim to be media. If television is media, why not movies? And if they, why not video rentals? And if they, why not video games? If tabloids whose stock-in-trade is alien kidnappings and ninety-four-year-old pregnant women are media, why not science fiction? All these businesses may be entitled to First Amendment protection, of course, but that does not mean they should be treated as press.73

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Of course, many of the businesses that do qualify as press are also in the entertainment. Treating them as press gives them advantages over other businesses that are in some respects competitors. Does this mean that if the former are treated as press the latter must be also? It has not, and it should not. Even when individuals or businesses share many common characteristics, it is perfectly legitimate to discriminate among them on the

basis of their disparate characteristics. Trucks and railroads are competitors that share many common characteristics, but legislatures are free to levy taxes share many common characteristics, but legislatures are free to levy taxes on trucking that do not apply to railroads74 or impose regulations on train crews that do not apply to truck drivers.75 Publishers and broadcasters are treated as "press" because a portion of their activity is something other than entertainment; that is a sufficient basis for discrimination if the other activity really is different-a question I shall address shortly.

Would "freedom of the media" extend to all information providers? Few businesses today are not in the business of gathering, processing, or communicating information. Companies that are in the business of selling autos or clothing or beer or electricity are also in the information business. They spend vast amounts of money communicating with customers, employees, shareholders, regulators, legislators, and the public. These companies perhaps can be distinguished from media because information is not their principal business (as we shall see, however, even this distinction may be hard to maintain). But there are a great many companies whose principal business is information. Financial services, credit agencies, travel services, Internet service providers, telephone, cable, and satellited companies, public-- relations counselors, mailing-list suppliers, directory publishers, health-- information services, weather services, business consultants, and gambling tout sheets are all in the business of selling information. Some of these, such as telephone companies, might be distinguished from media on the ground that they are passive conduits, while media are generators of information. But if such a distinction is tenable now, it is not likely to remain so for long, because telephone companies and other information conduits are eager to become content providers. They want to follow in the footsteps of cable and Internet service proveders, which began as conduits and evolved into content providers.

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That very term--content provider--suggests that the distinction between media and other information providers in in trouble. The term has gained currency because it cuts across old lines, identifying a new alignment in which media are part of a larger universe of information businesses. One indiction of fungibility of this business universe is that thousands of journalists are reported to have left jobs in conventional media for jobs in the new information industries during the brief heyday of the new media,76 only to find themselves back knocking on the doors of the conventional media

when that bubble burst.77 To be sure, some information providers look more like media than others. Online magazines and news services merely offer a familiar product in a new format. An online weather service is not greatly different from an all-weather channel on cable, which is not fundamentally different from a television news broadcast.

For at least some of the purposes for which the term "the press" matters legally, it cannot include everyone in the information business. The galleries of legislatures and courtrooms have finite capacities. News conferences might be more interesting if everyone (of everyone claiming an intention to disseminate information) were free to show up and ask question, but they probabley would be less useful. Not everyone who would like to post sports information on a websited can be given press passes to golf tournaments, basketball tournaments, tennis matches, and other sports venues.78 Prisons and war zones present security and safety issues that may require screening as well as numerical limits. If every company that provides information were entitled to protection from discriminatory taxation or intrusion of their editorial autonomy, legislative ability to raise revenue and regulate business practices would be seriously restricted.

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All media have free-speech rights, of course, whether their business is entertainment, information, or news. The issue here is only whether all media get whatever they should receive the statutory and other non-- constitutional perquisites governments choose to bestow on the press. One may believe that some of the First Amendment protections now extended only to "press"--freedom from discriminatory taxation, for example--should be extended to all media. But if that result is desirable, it should be reached under the Speech Clause rather than the Press Clause; it would be preverse to give such protection to information businesses and deny it to individual speakers.79 Likewise, judges or legislators who conclude that screenwriters should have preferential access to courtrooms or that information providers should have postal subsidies need not adopt expansive conceptions of press

to reach those results; they can simply expand existing definitions to include additional beneficiaries.80

C. Defining the Press by Function

Sometimes the favored entity is defined as "the news media" or "journalists." Under the Freedom of Information Act (the "FOIA"), the federal government waives fees for information requested by "a representative of the news media."81 California's public records act requires police to release addresses of arrestees and crime victims to requesters who swear they will use the information for journalistic purposes.82 But what is news and what is journalism? When Congress amended the FOIA to provide for fee waivers for the news media, Senator Patrick Leahy, one of the sponsors, said the term "news media" includes " any person or organization which regularly publishes or disseminates information to the public."83 Defined that broadly, "the news media" are no different from "the media," and the term fails to define "press" for the same reason that "the media" does.84 When the courts interpreted that statue, they gave the term "news media" a slightly narrower meaning: "A representative of the news media is, in essence, a person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience."85

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This definition still includes a great many information businesses, but it does begin to distinguish those who merely compile and distribute information from those who add value by their editorial efforts. And it does make sense to define "press" by function rather than form. "The news media" can be distinguished from other information business only by looking at the function they perform. By focusing on function, entities that are thought to serve that function can be protected no matter what medium they use and no matter how technology might change the way they do business. The function undoubtedly has to do with the activity of gathering and disseminating news,86 but that is probably inadequate as a definition unless "news" is understood to include analysis and opinion.

The term usually used to describe the function of the press is "journalism." Let us postpone for the time being the problem of deciding exactly what counts as journalism, although, as we shall see, that problem may prove to be insuperable.87 If "press" means journalism, the special constitutional protections (if any) emanating from the Press Clause would extend only to whatever activities were contemplated by the term journalism, and the rest of the activities of the media would receive only the protection of the Speech Clause. Nonconstitutional benefits (such as subsidies, access, and other privileges) would go to whomever convinces the legislatures and other dispensing authorities of their desserts, but those authorities presumably would favor applicants engaged in journalism for the same reasons that they currently favor certain forms of media.88 The question is whether defining press as journalism by function is any less problematic than defining it by media forms.

II. The Press, Journalism, and Independence

A. The Evolution of Journalism

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The concept of press as journalism cannot claim a historical pedigree. When the First Amendment was written, journalism as we know it did not exist. The press in the eighteenth century was a trade of printers, not journalists.89 To the generation of the Framers of the First Amendment, "the press" meant "the printing press." It referred less to a journalistic enterprise than to the technology of printing and the opportunities for communication that the technology created.90 "Freedom of the press" referred to the freedom

of the people to publish their views, rather than the freedom of journalists to pursue their craft.91

Only in the second half of the nineteenth century did newspapers begin to systematically use their own employees to gather news and produce features and commentary. The technologies of the industrial revolution made it possible for newspapers to become large and profitable enterprises. The growth of cities and the development of mass-production printing machinery produced the "penny press" and the possibility of mass circulation.92 The development of commerce, particularly brand-name products, created a need for mass advertising and that produced advertising-driven newspapers with many pages to be filled. It was this evolution of the newspaper that created the occupation of journalism. In the twentieth century, universities created journalism schools to supply the market for journalists, and journalists organized themselves into professional societies and unions.93 Only then did the press come to be understood as a collective journalistic enterprise.

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Obviously, then, journalism as we know it cannot have been what the Framers had in mind when they used the term "press." This is not necessarily a fatal objection to defining press today in terms of journalism, however. First, for nonconstitutional purposes, the question is not what the Framers intended, but what legislators or regulators meant when they employed the concept of press (or what they really meant when they used inadequate terms such as "newspaper" or "news media"). Second, for constitutional purposes, because the printing industry as the Framers knew it no longer exists, even an originalist might conclude that the Press Clause should be interpreted to protect whatever constitutionally important function the eighteenth-century press served, and they might conclude that today that

function is served by journalism. That seems to be what the Supreme Court has done. The Court did not take First Amendment claims seriously until after World War I,94 did not apply the First Amendment to the states until 1925,95 and did not use it to invalidate a restriction on the press until 1931.96 Thus, by the time the Court began to give effect to the First Amendment, collective journalistic enterprise had become the dominant characteristic of the press and the Court's free-press rhetoric seems to refer to the press in that sense, rather than as a technology for printing.

The middle decades of the twentieth century-the 1930s, 1940s, 1950s, and 1960s-were the heyday of the Press Clause in the Supreme Court. During this period, the Court invoked the Press Clause in many cases and appeared to rely on it, rather than the Speech Clause, to protect freedom of the press.97 It was also the formative period for most of the nonconstitutional law of the press. Both the press and the government grew rapidly during this period, giving rise to the kinds of issues (such as accreditation, subsidies, regulation) that gave legislators and regulators occasion to define "press."

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Midcentury was a period of widely shared norms within the field of journalism. In World War II the press was sufficiently cohesive that it could, and did, agree to a scheme of voluntary censorship of war news.98 Members of the press corps acceded to President Roosevelt's wish to not be shown in a wheel chair and observed an unwritten convention that the private foibles of public people were not news.99 Serious discussion about the role of the institutional press blossomed during this time, and what constituted the press

for these purposes apparently seemed self-evident.100 The most famous national consideration of the role of the press ever undertaken, the 1947 Commission on Freedom of the Press, identified the press as "the existing agencies of mass communication" without further discussion.101 The Supreme Court decisions invoking freedom of the press also assumed that the term needed no elaboration.

The civil-rights movement, Vietnam, and Watergate added a tougher edge to the shared conception of the press. Investigative reporting and an adversarial stance toward government had always played a role in journalism, but during this period they became, at least temporarily, the most conspicuous characteristics of a free press.102 This was the vision of the press that Justice Stewart embraced in his now-famous Yale address on the meaning of freedom of the press.103 Reflecting on the then-raw wounds of Watergate, he said that the purpose of the Press Clause was to protect the "institutional autonomy of the press" so that it could function as a "Fourth Estate" providing a check on the three official branches of government.104 "The free press meant organized, expert scrutiny of government. The press was a conspiracy of the intellect, with the courage of numbers."105 He distinguished the Press Clause from other guarantees of the Bill of Rights, including the Speech Clause, which he saw as protecting individuals. "In contrast, the Free Press Clause extends protection to an institution. The publishing business is, in short, the only organized private business that is given explicit constitutional protection."106 The recipient of this protection, in his view, was "the organized press"107 or "the established press."108

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But Justice Stewart was never able to sell this interpretation to a majority of the Court. Indeed, in the 1970s, 1980s, and 1990s, the Court seemed to lose its enthusiasm for the Press Clause. Whenever possible, it

treated media cases as free-speech cases rather than free-press cases.109 When confronted with claims that could only be based on the Press Clause, it rejected them,110 except for the taxation cases.111 The Court's determination to avoid recognizing rights under the Press Clause is especially evident in the courtroom access cases. The Court granted the First Amendment right of access that the media demanded, but granted it to the public rather than to the press.102 Of course, as any nonpress citizen who tries to attend a highly publicized trial will quickly discover,113 it is the press that gains access under these decisions.104 But the Court adheres to the fiction, 115 in obvious resistance to Justice Stevens's suggestion that the controlling principle is a First Amendment right to gather news.116

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What history shows is that journalism has changed, conceptions of press have changed, and judicial (and perhaps popular) enthusiasm for protecting the press has waxed and waned. Whatever "press" might mean today will

necessarily be quite different from what it meant to the Framers, and probably from what it has meant at other times since then. The issue here is not whether history proves that press means journalism, but whether journalism might provide a satisfactory-if changing-conception of press. It can do so only if journalism can be distinguished from other types of information businesses.

B. Identifying Journalism

What is journalism? Does it encompass nonfiction books? Celebrity gossip? Investment advice? How much of a medium's content must be news for it to be counted among "the news media"? Are supermarket tabloids news media? Web portals whose home pages include a few headlines? Data bases that archive the news reports of others?

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The scholar who has written most extensively about the legal meaning of press is Professor Randall Bezanson.117 In his view, what primarily distinguishes the press, at least for constitutional purposes, is the exercise of editorial judgment, which he defines as the "independent choice of information and opinion of current value, directed to public need, and born of non-self-interested purposes.118 By "independent," he means "free of forces from government or from outside of government that compromise the free independent judgment of those assigned the task of writing and composing the publication."119 Editorial judgment must aim to serve the needs and interests of a public audience rather than those of the speaker,120 and it is "geared toward what we need to know, not simply what we want to know."121 As Professor Bezanson shows, this conception of editorial judgment (and hence of press) can be found in a great many cases in state and federal courts.122 It can also be detected in decisions of the Supreme Court, despite

the Court's reluctance to confront directly the meaning of the Press Clause. Similar criteria can be found in numerous nonconstitutional definitions of press.123

But this view rests on premises that are out of favor in current legal thinking. The law normally assumes that accountability is a virtue. If editorial judgments must be independent not only of government, but also of those who own the media and the advertisers who provide their principal support, to whom is the press accountable? To its public audience? Apparently not, if editorial judgments must be based on what the audience needs rather than what it wants. Similarly, much of the law is built on the expectation that individuals and businesses will act in their self-interest, and many people are intensely skeptical of behavioral assumptions other than self-interest. Limiting the benefits of press to those who are "non-self-interested" would be at least unusual.

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This vision of a journalistic elite liberated from self-interest and the constraints of owners, advertisers, and audiences is not Professor Bezanson's idiosyncratic view. It is an accurate, if bald, depiction of traditional ideals of journalism. Its premises have been shielded from view by the use of press as a proxy for "journalism" or "editorial judgment." By focusing on media entities, the law has avoided having to articulate what it is about those entities that distinguishes them from others. Once we begin to ask that question, we cannot conceal the assumptions that underlie the notion that the press is special. Even if Professor Bezanson's conception of press is desirable, is it possible? Can journalists and journalistic enterprises really be expected to be non-self-interested? How can they be unaffected by the desires of their owners or advertisers? Will audiences pay for media who insist on giving them what they need rather than what they want?

The notion of journalistic independence lies close to the core of the concept of press, and it seems to be an expansive notion, something close to freedom from controls extraneous to the culture of journalism. Journalistic independence clearly requires, as Professor Bezanson suggests, a decision-- making process free from the control of governments, political parties, or interest groups, or advertisers.124 It places the interests of the reader or viewer ahead of those of the advertiser or shareholder. It requires at least some subordination of self-interest. Everyone understands that a candidate's campaign brochure, or an organization's press release, or a corporation's prospectus, or Sierra Club report on global warming, is not journalism. No matter how informative, timely, or valuable those might be, they are not journalism because they are self-interested. But self-interest plays a large role in journalism too. 125 Editors choose stories to attract additional viewers during ratings sweeps, or in the hope of winning a Pulitzer Prize, or to advance their own crusades. Self-interest may require them to give more attention to celebrities or entertainment or sports than they think those deserve, or to cut costs by reducing coverage that they believe their audience needs. The most we can expect is that their judgments will not be entirely self-interested-that they will remember that they are also supposed to serve "the public interest."

No one expects the individual journalist to operate independently of all constraints, obeying only his or her own journalistic credo. For the most part, journalists cover what their editors tell them to cover and cede to the editors the final decision as to what is published or broadcast. Reporters and editors are never entirely free of the owner's control; they understand that there are limits on their freedom to report on the publisher's personal life, or the internal affairs of the corporate owner, or the fact that the publisher is negotiating the settlement of a libel suit.

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More important, media are subject to the financial demands of the marketplace. When they were closely held, they only had to meet the financial expectations of the individuals or families who owned them. Now

that most of them are owned by publicly held corporations, they must meet the expectations of investors, analysts, and fund managers. Private owners could be just as demanding, of course, but many of them were sensitive to the ideals of journalistic independence and responsibility.126 Henry Luce, founder of the Time-Life empire, boasted that "there is not an advertiser in America who does not realize that Time Inc. is cussedly independent."127 Colonel Robert McCormick, one of the most famous of all newspaper publishers, maintained separate banks of elevators at the Chicago Tribune so editorial employees would not encounter business employees. 128 In a pure market setting, there is little room for such sensitivities.129 "The historical protection for journalism, the benevolent patriarch, has disappeared, and the new corporation culture has done nothing to replace it."130

Journalism cannot be entirely free from government control; government has to decide who, if anyone, gets access to news venues, postal subsidies, broadcast licenses, and all the other perquisites that journalism depends upon. Audiences are themselves interest groups, and if they decide that sports and entertainment are more important to them than government and politics, journalism that fails to bend to those interests is not likely to survive. Most importantly, journalism that is financially dependent on advertising-as most of it is-cannot ignore the needs of advertisers. Advertisers buy audiences, and it is journalism's job to deliver an audience that meets the advertiser's specifications, qualitatively and quantitatively.131

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Nevertheless, independence is a crucial premise of journalism. The most ambitious study of journalism undertaken since the Hutchins

Commission in 1947, and the most searching self-examination ever, was recently completed. It identified nine essential principles of journalism, and the central theme of them is independence.132

1. Independent Ownership.-As recently as 1990, the Supreme Court assured us that "media corporations differ significantly from other corporations in that their resources are devoted to the collection of information and its dissemination to the public."133 The Court held that this "valid distinction" constituted a compelling reason for the state to exempt media corporations from campaign finance laws that restricted other corporations' ability to influence PolitiCS.134

This argument may or may not have been persuasive in 1990, but it is extremely dubious today. NBC is owned by General Electric, ABC by Walt Disney Co., and CBS by Viacom, Inc.; each of these conglomerate parents owns many other businesses, media and nonmedia. 135 Today's major media owners seem indistinguishable in most respects from other conglomerates. 136 They devote their resources to a vast array of activities, only a fraction of which involve the gathering and dissemination of information to the public, and it is difficult to believe that they are any less eager to influence politics than their nonmedia counterparts. Through their media subsidiaries they are allowed to influence political campaigns in ways that are forbidden to other corporations, and the resulting difficulty of justifying this disparate treatment has become a significant obstacle to regulation of campaign finance.137

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Equally difficult are laws limiting the benefits of press to media that operate "independently of any ... industry" 138 or are "engaged solely in the

publishing business."139 Periodicals published by trade associations or lobbying groups don't qualify as press for purposes of congressional accreditation because of their entanglements with other business interests. Why are the journalists for ABC, NBC, and CBS different?140 Do we take their word that they won't use their press privileges to advance the other interests of their owners? If so, why don't we accept similar assurances from the writers for Consumer Reports or Petroleum News?

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Today's interconnected media conglomerates often have ownership interests in entities they report about, such as professional sports teams, entertainment companies, and other consumer businesses. AOL Time Warner, whose many media properties include CNN, TBS, and more than sixty magazines including Time and Sports Illustrated, also owns the Atlanta Braves (baseball), the Atlanta Hawks (basketball), the Atlanta Thrashers (hockey), Warner Brothers Pictures, HBO, numerous record labels, other film and music companies, Little Brown and other book publishers, and of course, America Online and its subsidiaries, which include CompuServe and Netscape. 141 Disney owns ABC, which boasts that its television affiliates reach 99.9% of all U.S. television households, and also owns the Anaheim Angels (baseball) and the Mighty Ducks (hockey), ESPN and other cable networks, the Walt Disney motion picture empire, and a worldwide complex of theme parks and resorts. 142 News Corp., which owns the New York Post (and 175 newspapers elsewhere in the world), Fox Broadcasting, and Fox Sports Network, also owns the Los Angeles Dodgers (baseball), has ownership interests in Madison Square Garden, the New York Knicks (basketball) and the New York Rangers (hockey), and it owns HarperCollins book publishers, TV Guide, and 20th Century Fox movie and television companies. 143

USA Networks, which owns television stations in most of the major markets as well as several cable TV networks, also owns Ticketmaster and several motion-picture and home-video companies.144 Viacom, which owns CBS and its thirty-three television stations, also owns MTV, Nickelodeon, TNN and other cable networks, Paramount Pictures, Blockbuster Video, Simon & Schuster book publishers, one of the largest outdoor advertising companies, and several theme parks.145 CBS, which broadcasts two of gamblers' favorite sporting events (the Super Bowl and the NCAA men's basketball tournament), is reported to have a financial stake in the company that sets odds on college and professional sports for most Las Vegas casinos as well as many illegal bookmakers.146 These nonmedia interests are not sidelines for companies whose principal interests are journalistic;147 on the contrary, these are companies to whom journalism is a minor source of revenue. 148

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Within the past twenty-five years, ownership of most newspapers has moved from private hands to publicly traded corporations and head-to-head competition has almost vanished. Although the average profit margin of the industry is over twenty percent-about three times the U.S. average for all industries 149-many newspapers are under pressure to increase their profits still further, even when an economic downturn reduces advertising revenues,150 and even if it requires layoffs and reduced news coverage.151

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Cost-cutting in news operations is widespread.152 Although managers of publicly held newspapers generally do not meddle directly in news decisions, "financial controls imposed by the parent company compel known changes in size and quality of editorial staff, content, newshole, priorities for coverage, market segmentation, etc."153 These pressures are said to come from Wall Street, which expects monopoly profits and makes any newspaper group that lags behind a take-over target.154 "Being publicly traded means your fiduciary responsibility is to maximize profits, which forces you to focus on short-term decision-making" and limits newspaper' "ability to invest in original news content and long-term reader connection."155 Not all newspapers are publicly owned, of course, and some of those that are have stock arrangements that protect them from unfriendly takeovers by keeping most of the voting power in the hands of the founding family.156 But the largest chains are publicly owned,157 and the investment community has little sympathy for newspaper executives who put other values ahead of financial performance.158 Ownership of newspapers by "persons and institutions whose interests are strictly financial and whose expectations are by definition short term because of easy access to alternative investments at a moment's

notice... dictates the behavior of [newspaper] companies pervasively and at all levels of the organization."159

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Within the profession there is consternation about the effects of these business developments on journalism's commitment to public service.'60 I have already mentioned the formation of the Committee of Concerned Journalists.161 A publisher who resigned rather than implement the budget cuts ordered by his chain received a standing ovation at the convention of the American Society of Newspaper Editors. 162 A member of ASNE said that editors' acquiescence in the new economic expectations "has permitted the construction of a system in which serving the market trumps serving democracy, and profits matter more than anything else."163 Even some newspaper publishers see the economic trends in the industry as a threat to newspapers' commitment to public service.164 Whether or not the new ownership patterns distort journalistic judgments,165 they at least require

reconsideration of the idea that the owners of the press are different from other businesses.166

2. Independence from Advertisers.-The changing economics of the industry are increasing the importance and influence of advertisers while decreasing the importance of attracting a wide audience. Circulation growth was once the measure of a newspaper's health, but no longer. Circulation figures and revenues have been steadily declining for at least twenty years, but revenues have been increasing. 167 The explanation appears to be "better demographics"-fewer readers, but readers whose buying habits and capacities are more attractive to advertisers, who therefore will pay higher advertising rates.168 Seventy to eighty percent of newspaper revenues now come from advertising,169 Revenues from over-the-air broadcasting come entirely from advertising. Increasingly, it is competition for advertisers, rather than viewers or readers, that drives decisions of publishers and broadcasters. Pleasing advertisers tends to change news judgments "from information that is important to the public to material that is preferred by a market."170 Professor Baker identified this trend and warned of its consequences for the press some years ago. 171

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Journalism is dependent on a fragile pact between advertisers and media. For the most part, advertisers desist from meddling in editorial decision-making, perhaps because they believe that doing so would destroy the credibility that enables the media to attract the audience that the advertisers seek. For their part of the bargain, media must deliver the audience. This pact traditionally has been enforced by an imaginary "wall" between the editorial and business operations of media. Its purpose is to insulate journalistic judgments at least from the day-to-day demands of advertisers. As to less particularistic advertiser influences, this norm is less widely shared. For example, some newspapers might openly support efforts to protect local merchants who are their advertisers from competition of chain stores that are not, while others might think that an improper intrusion of business considerations into editorial decision-making.

The wall is easier to maintain in mass markets where the advertisers are many and diverse than in specialized markets where power is concentrated in a relatively few advertisers. Through most of the twentieth century, audience was evaluated principally by the numbers in the truly mass media, such as newspapers and television. Advertising rates, and advertisers' placement decisions, were based mostly on gross circulation or viewership. Advertisers relied on more specialized media, such as magazines, to reach audiences with particular demographic characteristics, such as women of ages eighteen to thirty-five. In the past twenty years, advertisers' demands on the mass media have changed. They rebelled against paying for audiences that contain many noncustomers-for example, men (in the case of advertisers selling perfume or lingerie), women (in the case of advertisers selling auto parts), or the elderly (in the case of advertisers selling baby products).172 More generally, some types of advertisers objected to paying for low-income audience and out-of-area audience.

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New media sprang up to capitalize on advertisers' discontent. Before the development of sophisticated audience measurement techniques, advertisers and media alike operated on highly generalized information-such as gross circulation figures, occasional readership surveys, and ratings sweeps. Now minute-by-minute ratings data, focus groups, and technologies that allow constant monitoring of audience preferences allow advertisers to demand content that attracts the audience they want to reach 173 and helps them select precisely the right medium for their particular products. Cable systems offer specialized channels such as news, sports, movies, weather, financial news, travel, and food, all designed to attract audiences with demographics attractive to certain advertisers. As a result, the mass audience around which broadcasting was built has fragmented. The networks' share of the total TV audience fell from ninety-one percent in 1978 to forty-five percent in 1999,174 and their evening newscasts have lost half their viewers since 1993.175 The same thing has happened in the print media. The percentage of the adult population who read a daily newspaper dropped from 77.6 in 1970 to 58.6 in 1998.176 Specialty magazines proliferated, while the mass-- circulation magazines that were popular around midcentury withered.

Alternative newspapers targeted the young. Suburban newspapers attempted to capitalize on the relative homogeneity (and affluence) of the suburbs. "Shoppers" were aimed at audiences whose interest in advertising was sufficient to induce them to read newspapers that had no or little editorial content.

Mass circulation media tried to meet this competition. Newspapers offered zoned editions that enabled advertisers to pay only for advertising in a geographical subdistrict. More recently, the trend has been to buy up the suburban and other regional competitors and then combine news operations, with the result that nominally distinct and competing outlets are in fact part of the same enterprise.177 Some newspapers embraced explicit strategies of reducing circulation to give advertisers audiences with better demographics.178 Some of them abandoned circulation to outlying areas and red-lined low income neighborhoods.179 Newspapers offered advertising inserts to compete with direct mail and "shoppers." They made content innovations (e.g., style sections and special entertainment sections) designed to attract specific audiences sought by advertisers. The movement to give advertisers the audience they want has gone furthest in radio. With a few exceptions in sparsely populated markets, radio has abandoned the concept of a general audience in favor of specific formats-rock, talk, oldies-designed to deliver a demographically distinct audience to advertisers. There are predictions that new technologies that enable audiences to customize what they read and watch will challenge the very existence of a media "audience."180

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These developments put a great deal of strain on the pact between advertisers and media. Media have become more attentive to the needs of advertisers, and advertisers are more interested in the content of the media they use. One casualty has been the so-called "wall" between the business and editorial departments of newspapers. In newspapers, "[t]he breaching of the church-state wall is largely a done deal."181 Editors now sit on marketing committees at many, if not most, newspapers. "Editors spend long hours with their counterparts from advertising, marketing, and circulation, and they are being pushed to turn news coverage to the most profitable territory: the interests of women, younger readers, suburbanites, and the affluent"; additionally, their responsibilities include "developing ad-driven special

sections and targeting demographic groups for coverage."182 Arranging for advertisers to receive favorable news coverage is said to be "far more common than even most journalists realize."183 At some newspapers the editor of each section of the paper is paired with a business-side manager for the purpose of furthering cooperation between the two sides of the enterprise. This is in line with a newly popular philosophy within the newspaper industry that "[editors have to become more interested and more involved in how their enterprises make money ...."184 The immediate result of such cooperation is said to be a stronger emphasis on lifestyle and personal service coverage at the expense of more traditional coverage.185 At the Los Angeles Times, a strategy of including a different special section each day of the week produced a sixteen percent increase in ad revenues and generated $8 million in new advertising, but converted the business section of the newspaper to seventy percent soft features.186 Many newspaper editors report that a significant portion of their income now comes in the form of bonuses tied to the financial performance of their newspapers.187 The Los Angeles Time's special sections strategy was accompanied by a system of bonuses for section editors who increased the profits or readership of their section.188

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In magazines the barrier between editorial and business functions is even weaker. "Advertorials" --special sections that look more or less like the editorial content of the magazine but are paid for by advertisers' products in editorial features, sometimes even including cross-references showing readers the price of the product and where to buy it.189 In a practice known

as "co-branding," magazines allow advertisers to use the magazine's prestige to help sell the advertiser's service or product.19 Policies of cooperation between editorial and business departments are sometimes reinforced by financial incentives. Managing editors of each of Time Inc.'s magazines receive annual bonuses (sometimes larger than their annual salaries) tied to the magazine's financial performance.191

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Media are themselves advertisers, of course. They buy advertising in other media,192 and they use their own outlets to promote themselves.193 Usually their self-promotion is obvious, but new technology enables them to insert self-advertising into their editorial matter more subtly. For example, networks can use digital technology to superimpose their logos and other promotional images onto real world backdrops during live news broadcasts. During the CBS Evening News's live coverage on New Year's Eve, 1999, a building in Times Square which actually bore a large sign carrying NBC's logo appeared to CBS viewers to carry a huge billboard advertising CBS News. CBS had digitally superimposed its own logo over NBC's using the same technology that networks use to project imaginary first-down lines onto the field in football games.195 Similar images have been inserted into other programs on CBS,196 and the technology is also used to insert images of

outside advertisers' products into live coverage of sports events.197 Editorial self-promotion by the media has existed for a long time, of course, but new technologies create unprecedented temptations for media to engage in surreptitious promotion, not only of themselves but also of other advertisers.

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Whether, or how much, these new business arrangements compromise journalism's independence from advertisers is impossible to know. But even the Wall Street analysts who follow newspapers are said to believe that public ownership of newspaper companies, particularly by institutional investors, is bad for journalism,198 but the journalism profession clearly believes the threat is serious. The question has been much discussed in the journalism reviews,199 often in dire language.200 And this relates only to

pressures on the conventional media; independence from advertisers may be even harder to maintain in the new media, and if they succumb that can only intensify pressures on the conventional media.

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3. Independence in the News Media.-It is too early to know whether independence will survive in online journalism, because the business is still very unsettled. The initial assumption that the future would belong to a cadre of new "internet-content companies" was severely challenged in the shakeout of technology stocks in early 2000.201 Many of the companies failed, others were acquired by or affiliated with conventional media companies, and thousands of online journalism jobs vanished as quickly as they had been created.202 Now it appears that the business may be dominated by online versions of the conventional media.203 If that happens, one might expect that the traditions of independence that exist in those media would be carried over to the new media. But virtually none of the Internet news sites has yet proved to be profitable, whether operated by new media companies or old media.204 The old media cannot be expected to operate online sites under established traditions indefinitely if they are losing money. 201 Some people believe the economics of the media world is changing more fundamentally. According to some, "content" is so easily copyable on the Internet that it will

have to be offered free, or virtually so, making the paid-subscriber model obsolete.206 Media, like other "content providers," will have to "manage their businesses as if [content] were free, and then figure out how to set up relationships or develop ancillary products and services that cover the costs of developing content."207 Whether the traditions of independence of the old media will carry over into the new media environment is impossible to predict.

The technology itself generates pressures to substitute consumer preferences for journalistic judgment. An online news site's servers can provide instant data on what users are viewing and what they are ignoring.208 Some online editors use this information to make quick and frequent decisions as to what material to carry,209 and advertisers can be expected to insist that they be given this information before they allocate their advertising dollars. So far, consumer preferences do not favor hard-core news. Weather and science/health are at the top of the list of topics that users read online, and political and local news are at the bottom.210 Of the four most-used online news sites, three are devoted to weather and technology.211

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Most important, there is reason to doubt whether the economics of the industry will permit rigorous separation between business and editorial operations in the new media. In most conventional media, revenues come from both subscriptions and advertising,212 although revenues. So far the only online content companies that have proven that they can successfully operate on a paid subscription basis are pornography sites and

the Wall Street Journal's WSJ.com.213 Some are pursuing a hybrid model in which they offer free content in hopes of inducing users of the free material to subscribe to premium services. But most online sites aspire to be advertiser supported, and so far few have been unable to make money following that model.214 The problem is not lack of advertisers; Internet advertising is said to have expanded even faster in the last five years than television advertising did in its first five years.215 Rather, the problem stems from the technology itself. Because entry barriers are so low in the online information industries, the number of sites competing for advertising revenues expands far more rapidly than either the number of advertising dollars or the number of readers.216 "[T]he Web-unlike magazines, newspapers, television, or radio--has an essentially limitless capacity to handle and eventually dilute advertising. A Webmaster can create two, three, or more Web pages in about the same amount of time it takes to create one, at no greater cost."217 This means that competition for adverstising dollars is even more fierce in online journalism than in conventional media, and will remain so at least until the industry consolidates.218

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Another problem is the ease with which users can bypass advertising on websites.219 Originally online advertising consisted mostly of banner ads on a site's home page, but those were easy to ignore. The Internet Advertising

Bureau responded with new voluntary guidelines permitting much larger banner ads and vertical "skyscraper" ads.220 As users became more savvy and websites became more interconnected, users began bypassing home pages altogether. Online media responded by selling "pop-up ads" (ads that appear and disappear as the user navigates the site) and ads that run in the middle of a column of text.221 Now software is available that allows the Internet user to block not only all these types of ads,222 but also the "cookies" that enable Internet businesses to acquire data about the online habits and preferences of people who visit their sites.TM Such technology threatens not only the major source of cash-advertising-but also the major source of noncash benefits-consumer data-that online "content providers" depend on. If use of this software proliferates, it can only intensify the temptation to embed advertising in what appears to be editorial content. There is anecdotal evidence that some online content providers have already done this.224 Some people in the industry think that blurring of the line between advertising and "content" will be inevitable.225

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4. Journalism's Relationship with the Audience and the Public.Communication to a single individual, or even a small group of individuals, usually is not thought of as journalism.226 "Press" assumes communication to a mass audience, or at least a general audience, about matters of common interest.227 But economic and technological changes are challenging those

assumptions, too. When there were three television networks, each had a mass audience and each supplied programming aimed at an assumed array of shared interests. One of the roles of television journalism in that era (or at least one of the consequences of it) was the creation of national agendas. The networks had the power to make space flights or political conventions national events that engaged the attention of most of the country. Now there are many networks, most of which cater to a specific interest-such as sports, finance, weather, music, travel, food, and entertainment. As mentioned above, ABC, CBS, and NBC have lost much of their audience to the specialized cable networks and other competitors, and radio has subdivided the audience even more completely. At midcentury, a few magazines sold millions of copies to a mass audience. Now there are over eight thousand magazines in the U.S., the vast majority of them serving narrow interests of much smaller audiences.228 Metropolitan daily newspapers still aim at a general audience, but they have lost readers to alternative newspapers, suburban newspapers, business publications, and national newspapers like USA Today and The New York Times. Their market penetration has been shrinking, meaning that each newspaper is read by a smaller segment of the population in its area. To the extent that they have succeeded in reducing circulation to low-income subscribers and outlying areas,229 their audience also has become less diverse.230

a. Journalism and Marketing.--Despite this subdividing of the mass audience into smaller and more homogeneous groups, the work of the networks, magazines, and daily newspapers still looks like journalism. They are still engaged in the discovery, selection, and presentation of information to large audiences with shared interest, even if they are more attuned than they once were to the satisfaction of private wants and less confident of their mandate to identify the common interest. In Professor Bezanson's terms, they are still exercising editorial judgement, albeit in narrower spheres.

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But technology has the potential to displace editorial judgment more drastically. It will soon be possible (if it is not already) for each individual to be an audience of one, exercising his or her own individual choices instead of accepting the judgment of an editor. Interconnected networks of

computers offer access to collections of information vastly larger than any single source can provide. With the right search and retrieval tools, the individual can obtain almost instantaneous access to far more material than any editor can provide. The individual still needs help, of course, to know what is available and where to find it, but it may turn out that computers can do that better than editors. Professor Bezanson describes software that enables the computer to learn the individual's interests, tastes, preferences, and prejudices, find and deliver an information package that meets those criteria, and refine the criteria as it observes the individual's actual reading (or listening or viewing) patterns. In this model, the individual "pulls" information that he or she selects instead of receiving information that an editor "pushes." Some people believe this is the journalism of the future.232 In any event, media are already using these new technologies to customize, personalize, and individualize their product to a degree not previously seen.

Is this activity journalism or marketing? Certainly this model still requires newsgatherers. Someone has to ask the questions, ferret out the facts, and assemble the material. But that does not distinguish the activity from other information businesses; someone also has to gather and assemble the data for the Yellow Pages or for a credit report. "Pull" journalism has to make choices about content-for example, whether to place news about athletes' endorsement deals on the sports menu or business menu (or both), how much detail to include, and which information is to be given priority. But this too is true of other information businesses. The goal of marketing is to make money by ascertaining and serving the needs or wants of customers. If the goal of "pull" journalism is merely to ascertain and serve consumer preferences, this function looks more like marketing than journalism, whether it is performed by people or by software.

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At present, audiences give the media a great deal of discretion in deciding what information they will provide. Journalism as we know it exposes us to a great deal of material we don't want, or at least didn't know in advance that we wanted. In part this is merely a consequence of the mass nature of media. A television newscast cannot give each viewer precisely what he or she wants, so it provides a package of stories that the broadcast journalists think will contain some matters of interest to many individuals who are more or less similarly situated (e.g., live in the same community). Each viewer is thereby exposed to some stories he or she would not have requested. These stories may or may not remain "unwanted;" curiosity or

skillful journalism may convert the uninterested viewer into an interested one. In any event, the nature of the medium (and the nature of all mass media) exposes viewers to material they would not have seen had the initial selection been left to them.

The audience's acquiescence in journalists' judgments is far from complete, however. It is a mistake to gauge the public's interests by the media's offerings. What the media offer does not necessarily tell us what the public reads or watches. A newspaper is likely to offer news about sports, local, national and international matters, financial affairs, and lifestyle matters, but that does not mean that all or even most of its readers are interested in all of those matters. The newspaper serves a collection of subaudiences, any one of which reads some portions of the newspaper but not others. It is harder for the audience to "graze" a television newscast, but some viewers undoubtedly do ignore portions of it. To the extent that our impressions of common public interest are based on what the media present, rather than what audiences consume, we probably overestimate the commonality of interests. Media audiences probably have always been more fragmented than media content suggests, and to the extent that individuals pick and choose among editors' offerings, they have always engaged in "pull" journalism.

Some media audiences clearly do want journalists to tell them what they should know. Indeed, most audiences probably expect journalists to play that role, within limits. "News judgment" is one of the criteria by which people select their news providers. Many people trust The New York Times to decide for them what they need to know about foreign affairs, or the Wall Street Journal to keep them informed about financial matters, or the National Enquirer to tell them what celebrity gossip is current.233 Others read these or other newspapers so they will know what their friends or colleagues or competitors know. For the same reason people want to read the books or see the movies that others are reading and seeing, they may want to read the newspapers that others read. The same is true, of course, of the television programs they watch or the websites they visit. This is why media spend millions on public-relations campaigns to create "buzz" about their offerings.

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These delegations of power from the audience to journalists are tentative and conditional, however. Most people seek information from other sources at least occasionally, ignore some of the judgments of their newspaper of choice, and stand ready to switch to a different source if experience or advertising persuades them that it will better serve their needs. Audience needs, or media perceptions of audience needs, can also be a fairly

complex matter. Some readers may want media to tell them about things they didn't know they needed to know. Particularly in matters like foreign affairs and financial happenings, the reader's desire may be "tell me what I'll wish five years from now that I had known today." Some media (financial and political newsletters, for example) succeed by selling their ability to perform this function. Many others attempt it in a more mundane way (e.g., a supermarket tabloid that tries to give its readers the latest celebrity gossip before their friends hear it).

Journalists also decide what we need to know in a more subtle way. Common interests are not necessarily fixed or preexisting. They are constantly forming, strengthening or weakening, and dissolving. Journalists have both the ability and the incentive to create and nurture communities of interest. One way the media can protect themselves from the differing wants of a fragmented audience is to foster common interests, or at least the perception thereof. If the television station can convince the audience that the stories in its package are important to the whole community, it can minimize the uninterested viewer problem. It can do this by identifying and emphasizing the subjects that really are of common interest to their audience, or by convincing the viewers that what is selected by the station is ipso facto of interest to them (e.g., because their neighbors will be talking about the stories the station presents). Hence, the media use slogans like "The news you need to know." Mass media do not merely serve preexisting common interests; they are themselves a force that creates and nurtures common interests. The civic journalism movement is the latest chapter in a long history of proactive media involvement in promoting a sense of community. Journalism may thereby serve the public needs rather than the private wants of its audience, but by mechanisms more complicated than Professor Bezanson's model suggests, and for reasons that may ultimately serve the self-interest of the media.

None of these forms of acquiescence in editorial judgment really distinguishes journalism from marketing. A ready-to-wear store also offers a range of products some of which will be of no interest to any particular customer. Curiosity or an attractive display may persuade a customer to buy something she wasn't looking for when she came to the store. Customers allow the merchant to decide what merchandise to offer, and may rely on the merchant's judgment to select the alternatives from which the customer should choose, but customers also keep an eye on other sources and may go elsewhere if they become dissatisfied by the merchant's offerings. They may expect the merchant not only to stock what they want but also to offer new products or fashions that the customer didn't know she wanted. They may want what the merchant offers because they know their friends will be wearing it. If the merchant is very successful at spotting or creating trends, customers may want what the merchant offers ipso facto. Journalism that merely gives the audience what it wants-no matter how complex those wants and no matter how sophisticated the techniques for serving them-is no different from marketing.

b. Journalism and the Public Interest.-Journalism is different only if it serves some other goal. That goal is usually thought to have something to do with the public interest. The press generally sees itself as a business serving not only its customers but also a broader public interest. The press is expected to, and sometimes does, serve interests other than its own financial self-interest or even the apparent self-interest of its audience, as when it spends money to give the audience news about foreign affairs despite the audience's manifest disinterest. When it claims to act as a surrogate for the public, as for example when it asserts "the public's right to know," it usually conceives of the public as something broader than its own customers. This is why the press feels free to assert "the public interest" without showing that its viewers or readers actually are interested, or even in the face of evidence that its own audience is not interested.235 The problem, of course, is that what the press means by "the public interest" is whatever the press says it is.

Professor Bezanson's view of journalism is something very different from marketing. It has little to do with ascertaining and serving audience wants. Indeed, it requires journalists to resist pressures to give the audience what it wants to hear, is the most important characteristic of editorial judgment.236 In this view journalism is the antihesis of marketing, "Journalism's task... is to establish mechanisms for separating the writer and editor from the audience and its surrogate, the advertiser, lest editorial judgment be eroded from the bottom up--from the reader, the niche market and ultimately from the capacity of technology to place increasing content control in the hands of the audience."237

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Many, probably most, journalists adhere to conceptions of their role that are close to Professor Bezanson's ideal. They resist the notion that their choices should be guided by ratings and readership surveys, that marketing consultants should decide what they cover and how they present it, or that

their performance as journalists should be measured by market share. As they see it, "it is their business to decide what's news."238 Journalism has norms that often defy conventional wisdom about rational economic behavior. It is largely a self-rewarding and self-perpetuating profession. Historically it has not been a high-paying occupation and, with the exception of a thin layer of news executives and television news personalities, it still is not. As a consequence journalism is staffed largely by people who have rejected economic reward as their principal motivation. The rewards they seek come from their peers and their superiors, not the audience or the market. Pulitzer Prizes, Emmys, and Nieman Fellowships are awarded by panels dominated by journalists and their allies, on the basis of criteria that have little to do with improved ratings or increased circulation. Tangible rewards in journalism come principally through advancement within the profession. Because of the traditional "wall" that separates editorial from business operations, the people who make hiring and promotion decisions are generally journalists themselves and they share the nonmarket values of the profession. The recent instances mentioned above, in which media have instituted financial rewards for editorial managers based on circulation, ratings, or revenues, may change this, but so far the changes generally have been seen by journalists as threats to the profession. This largely noneconomic reward structure may or may not produce better journalists or better journalistic decisions, of course, but it does tend to insulate journalists from audience pressures.

Hubris239 and tradition also help insulate journalism from audience demands (as well as those of advertisers, owners, and government). Like most people, journalists prefer to work on projects of their own choosing. Unlike most people, they are in a profession whose reward structure and traditions support this natural inclination.240 Journalism resists being called a "profession" on the ground that the label might imply that someone has power to decide who is a journalist or to set standards. But if what distinguishes a profession from an occupation is fealty to norms other than self-interest, few professions can match journalism. It is a self-conscious and self-regarding profession. Journalists have the talents and the means to tell and retell the stories of the profession's heroes and villains, to perpetuate its traditions, to detect and describe and debate challenges to its norms.

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Journalism is a profession that worships its heroes, and they are not Hearst, Luce, or Sarnoff-people whose genius was in giving the audience

what it wanted. The heroes are symbols of the journalistic traditions of independence, watchfulness, truth, integrity, and courage. John Peter Zenger earned his place by going to jail for criticizing the royal governor in the eighteenth century, 241 and Ida Tarbell by exposing Standard Oil's monopolistic practices in the early twentieth.242 Frank Stanton became one of journalism's heroes when he defied a Congressional subpoena investigating the journalism behind a CBS News documentary.243 Elijah Lovejoy became a martyr by refusing to accede to the proslavery views of his readers.244 Woodward and Bernstein became icons by refusing to ignore a "third-rate burglary" through many months when no one else thought it important,245 and Katherine Graham became an icon because she backed them up "in the face of unremitting pressure from the highest governmental offices."246 Seymour Hersh earned his fame by exposing a massacre at My Lai that most Americans did not want to hear about.247 Ernie Pyle gave his life to tell the story of war from the vantage point of the ordinary soldier,248 and more than fifty journalists have been killed in or around the former Yugoslavia since 1990 in the course of reporting on a conflict many Americans do not care about.249

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And just as surely as it recognizes its heroes, journalism punishes those who violate its norms. Network executives were vilified when they secretly agreed to insert government-approved anti-drug messages into entertainment programming in exchange for reduction of their quota of public-service announcements.250 The Los Angeles Times earned a place in journalistic infamy by selling its independence to an advertiser.251 Janet Cooke became

an object lesson for a generation of journalists by making up a story about an eight-year-old drug addict.252

On the whole, mainstream journalism seems to be edging away from the public-interest ideal. Coverage of foreign affairs, government, science, and business has been cut back in favor of more coverage of lifestyle, consumption, sports, entertainment, and celebrities.253 Serious documentaries have all but disappeared from network television.254 Newspapers reduced their staffing of state capitals in 1998 (compared with 10,000 lobbyists registered in state capitals and 3000 reporters accredited for one Super Bowl).255 Coverage of the federal government also shrank,256 and the portion of newspaper space devoted to foreign news declined from five percent in the 1960s to three percent in the 1990s.257 Even investigative journalism seems to be driven increasingly by audience preferences rather than editorial judgment about what the public needs to know. One study found that fewer than one in ten investigative reports concerned education, economics, foreign affairs, the military, national security, politics, or social welfare, and over half focused on lifestyle, behavior, consumerism, health, or entertainment celebrities.258 News media see themselves in competition with entertainment and other types of media, such as the Internet. "[T]he cultures of entertainment, infotainment, argument, analysis, tabloid, and mainstream press not only work side by side but intermingle and merge."259 Professor Logan has observed that this intermedia competition puts great pressure on traditional standards of journalistic judgment, verification, and reliability.260

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c. Journalism and Ideology.--The traditional values of journalism conflict sharply with the economic imperatives of the present. In the journalist's view, "News is not a product like a tire or a paper towel.... A

newspaper's 'brand' is trust-trust in its judgment, its independence, its values. 261 But from the investor's viewpoint, journalists are "'in the advertising business, not in the journalism business. They don't get it. Without the bottom line, they don't have jobs. They're in a business and the business is to sell ads and make money. The people that own the company are the shareholders, not the reporters.'"262

If the business climate is hostile to the traditional ideals of journalism, so is the intellectual climate. The idea that it is journalism's business to tell us what we need to know embodies some assumptions that are anathema to contemporary legal thought. First, that idea assumes the existence of a "we" that is not merely a sum of "I's." It assumes the existence of a community with shared public concerns and thus with common information needs. If "we" are just the aggregate of our individual preferences, our needs are best served by sophisticated marketing mechanisms that can ascertain and serve those wants without interposing someone else's judgment. Such a judgment is necessary only if "we" have needs that are something other than our individual preferences. This conception of journalism views the press not as a market mechanism for maximizing the satisfaction of information consumers, but as a social institution empowered to identify and shape common concerns.263 But to some contemporary legal thinkers, this view of the press is nonsense.

The media provide a commodity like any other. It is a commodity people value, but it's one of many. Like the purveyors of other consumer goods, those in the press must serve the tastes and interests of the public-not out of a sense of duty, but because they will quickly lose an audience if they don't. Sure, they can lead by giving the public something it doesn't yet know it wants-like the Shopping Channel, DirecTV and Slate Magazine-but not out of a sense of noblesse oblige, but in the hope of making a killing. In this regard media entrepreneurs are no different from any other entrepreneurs, except maybe that their products are so much more dispensable.264

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The second assumption is that "we" are willing to delegate to an institution-such as the press-power to decide what "we" need to know, instead of leaving that decision to the market. Professor Bezanson says we need the press for the same reason we need public education, namely, to tell

us what we as a society need to know.265 In the case of the public schools, however, decisions as to what we need to know are made democratically, or at least there are opportunities for citizens to influence those determinations. In the case of the press, the decisions are made by a self-appointed elite.266 The sense that this elite does not accurately reflect what "we" really need to know is one source of popular dissatisfaction with the press, of course, but it is doubtful that we would be any happier if the decision-makers were democratically chosen.267 In the age of self-determination, the notion that someone else should decide what we need to know is troublesome no matter who that someone is.

The Supreme Court's expressions on this question have been inconsistent. In Gertz v. Robert Welch, Inc., it doubted the wisdom of asking judges to decide what are matters of "general or public interest" for purposes of First Amendment protection of defamatory speech.268 It therefore confined the highest level of protection to statements about public officials and public figures, rejecting the argument that all discussions about matters of public concern should receive that protection. But, a few years later, the author of the Gertz opinion said, "It is speech on 'matters of public concern' that is 'at the heart of the First Amendment's protection,'"269 and the Court held that only such speech receives the level of First Amendment protection required by Gertz. On the same reasoning, the Court held that public employees' speech about matters of public concern receives more First Amendment protection than their speech on other matters.270

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At a time when the law seems more enamored of markets than communities and consumer sovereignty is more respected than expert judgment, authoritarian selection, or collective choice, it is not easy to sell the proposition that the law should embrace an interpretation of freedom of the press that to many people smacks of paternalism and elitism.271 The

public seems less inclined to trust the press than ever. From 1985 to 1999, the number of people who thought the news media usually get the facts straight dropped from fifty-five percent to thirty-seven percent, the number who saw the press as "immoral" rose from thirteen percent to forty percent, and the number who saw the press as lacking in professionalism tripled.272 The plurality who believed the news media improved democracy more than they hurt it fell from two-thirds to little more than one-half, and the number who believed that press criticism impeded political leaders from doing their jobs nearly doubled.273 In such a climate, an interpretation of freedom of the press that embraces market ideology and consumer sovereignty instead of faith in the press is very attractive.

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The supremacy of individual choice in current First Amendment ideology is apparent in the Supreme Court's zeal to protect commercial speech.274 Commercial speech is the only area of First Amendment law in which constitutional protection has expanded dramatically in the past thirty years. The Supreme Court has decided more commericial-speech cases than any other type of First Amendment challenges during that period, and most of the decisions have protected the speech at issue.275 The principal impetus

for this expansion is the argument that "the particular consumer's interest in the free flow of commercial information... may be as keen as, if not keener than, his interest in the day's most urgent political debate."276 The Court has cautioned against attaching too much importance to the distinction between commercial speech and other speech, observing that "much of the material in ordinary newspapers is commercial speech,"277 that "the difference is a matter of degree,"278 and that "the responsibility for distinguishing between the two carries with it the potential for invidious discrimination of disfavored subjects."279

Commercial-speech doctrine reflects the rise of market ideology in First Amendment thought. Historically, most of the rhetoric offered in justification for protecting speech had to do with public decision-making. But in the commercial-speech cases, the Court asserts that the First Amendment exists to protect not only decision-making about public matters, but also to make sure that private economic decisions are intelligent and well informed, thereby promoting "the proper allocation of resources in a free enterprise system."280 Commercial-speech doctrine strongly endorses the idea that the First Amendment protects individual information preferences.281

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That does not preclude a distinctive role for freedom of the press, of course. It might well be argued that freedom of speech, including commercial speech, serves individual interests, including the goal of honoring individual information preferences, while freedom of the press serves more collective interests.282 What might those be? Perhaps they have

to do with what the Supreme Court has called "a profound national commitment" to public discussion of public issues,283 or more broadly, "all issues about which information is needed or appropriate to enable members of society to cope with the exigencies of their period."284 Professor Bezanson says freedom of the press "assumes that an institutional decision about what we need to know, or what we would want to know if we were confronted with it, comes first, followed only then by individual choice about what we wish to know."285 But the dominant First Amendment ideology of our time is closer to that of Judge Kozinski, who recoils from "the pernicious notion that journalists have a special duty to make judgments about what kinds of views and ideas the public should be exposed to."286

III. Sources of Freedom of the Press

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The most important thing to recognize about freedom of the press is that most of it does not derive from law at all. The press is free for many nonlegal reasons. One is the tradition of a free press, which antedates the First Amendment or any of the nonconstitutional press protections described below. The movement for press freedom was underway in England well before the American Revolution.287 In colonial America, the press was quite robust and unintimidated despite a repressive legal structure.288 Government attempts to suppress or control the colonial press almost always backfired, ultimately producing a more independent press, with stronger public support, than the one sought to be suppressed.289 The power of this tradition can be seen today elsewhere in the world. Countries that have a strong free-press tradition, such as England and Australia, are able to maintain a free and robust press without the benefits of legal protections that we consider essential, while countries without the tradition, such as Mexico and Russia, enjoy considerably less press freedom despite fairly elaborate legal protections.

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