Don’t Overestimate Government’s Ability to Save the News

A valuable new book reflects too much faith in the efficacy of regulation

Welcome to Second Rough Draft, a newsletter about journalism in our time, how it (especially its business) is evolving, and the challenges it faces.

As the business crisis of the press only deepens, even as the economy recovers, there is an increasing temptation to believe that the only actor with the capacity to solve the problem at scale is the same one to which so many other areas of society are turning—the federal government. A valuable new book accepts and embraces this temptation, offering a sort of maximalist view of how government might step in.

It is a temptation I think we should largely resist.

Saving the News by Martha Minow, professor (and former dean) at Harvard Law School, is being published today by Oxford University Press. It is well worth your time (and won’t demand too much of it at less than 150 pages). Minow skillfully traces the legal history of the news business, and especially its interaction with public policy, from eighteenth century postal subsidies to twentieth century broadcast regulation[1] and from the Newspaper Preservation Act that (ultimately unsuccessfully) sought to maintain multiple papers in cities to contemporary debates on Section 230, as well as other questions raised by the rise of Facebook, Google and Amazon.

The breadth of Minow’s prescription is apparent beginning from her subtitle: Why the Constitution Calls for Government Action to Preserve Freedom of Speech. Minow embraces a full dozen proposals for government aid to the press, ranging from an Australian-style scheme forcing platforms to pay for news content to significant limits on the latitude enjoyed by the platforms under Section 230 to the revival of the old Fairness Doctrine and its extension to print and online content.

The common denominator of all of this is an almost boundless faith in the ability of the government to work through complex problems—and to avoid unintended consequences. I simply don’t share that faith.

Take the idea of extending the Fairness Doctrine, which mandated some degree of balance in broadcast news from 1949 to 1987, to print and online news. Even if one accepts Minow’s argument that this would be constitutional (which, she implicitly concedes, a majority of the current Supreme Court does not), it remains very much unclear how this could be achieved, and who would oversee it. (Minow, for instance, wisely rejects a proposal by insurrectionist Sen. Josh Hawley to mandate government certification of “neutrality” in news reporting.)

The ostensible aim would be to have government “regulate deception and abuse of consumers’ trust,” but the key questions about this—as determined how and by whom?—go largely unaddressed.

Almost all government regulation has unforeseen consequences, and these also get short shift here. Both the Australian style pay scheme and the limits on Section 230 immunity could, in my judgment, lead to platforms choosing to simply surface far less news than they do now, resulting in further losses from these attempts to mandate gains. There is no apparent recognition, in Minow’s account and in many other arguments by advocates for similar proposals, of these risks.

Repeatedly, Minow asserts that we have no choice but to take dramatic governmental action or we will lose much of the press that is a bulwark of democracy. Constitutional arguments against the necessary steps, she repeatedly claims, would render the Constitution itself a “suicide pact.”

We don’t learn, however, except from a footnote citation, where that phrase originated. It comes from Justice Robert Jackson, writing in dissent in a 1949 case about a riot which occurred after a speech by a fascist in postwar Chicago. Jackson, seeking to suppress the speech, warned that

“if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”

Justice Jackson’s warning was alarmist

History has not treated Jackson’s observation kindly: the Constitution certainly survived the failure to suppress postwar speech. In retrospect, if mistakes were made in that era, they came in too little latitude for free expression, not too much.

Yes, Minow and others are surely right about the threat the current business crisis poses to a free press. (And I appreciate her favorable mentions of ProPublica.) But the fact that we have so far crafted insufficient solutions does not mean that help from government— beyond possible content-neutral subsidies— is necessarily the answer. In altering the constitutional balance with respect to press regulation, another old phrase may be more apt: we need to take care that we do not destroy the town in order to save it.

[1] Don’t miss the preface by Minow’s father, Newton Minow, now 95, President Kennedy’s chair of the FCC, and best known for his 1961 speech on television’s “vast wasteland.” It is clear how much daughter and father each inspire the other, leaving the reader both touched and also inspired.