How the Ongoing Transitions in Journalism May Affect the First Amendment's "Marketplace of Ideas"

By JULIE HILDEN


Wednesday, Dec. 24, 2008

This year has been a tremendously difficult one for print journalism and print journalists alike. The industry suffered widespread layoffs, and newspapers' stock prices dropped significantly -- with some flirting with or even entering bankruptcy, or considering the sale or mortgage of key non-media assets. Some of the bad news has arisen from bad economic times, but much of it represents the acceleration of a transition that seems likely to be permanent: Advertising dollars are moving from newspapers to the Web - and rather than simply moving to newspapers' websites, they are moving to a variety of other sites and services as well. These include free websites, such as Craigslist.org, that threaten to replace the paid classified advertising that once was a strong source of revenue for newspapers. They also include paid services such as Google Ads that seek to carefully tailor an ad's viewers to its content in ways that a simple list structure, or a set of fixed categories, can never replicate.

In this column, I'll consider how First Amendment values may be affected by the media developments we've seen so far in 2008. The Supreme Court's ideal of the First Amendment's "marketplace of ideas" is that it should be "uninhibited, robust, and wide open" - as Justice Brennan wrote in New York Times Co. v. Sullivan, which famously recognized and addressed the First Amendment dimensions of defamation law. Here, I will argue that the transition taking place in journalism is likely to promote Justice Brennan's ideal in the long term, but inhibit it in the short term. Indeed, in the short term, with the transition artificially rushed by the recession, serious free speech costs are inevitable.

A Short-Term Widening of the Digital Divide - but a Long-Term Closing of It?

One effect of the transition is that, with newspapers shrinking or consolidating, the marketplace of ideas may turn out to be much less "wide open" to some segments of society, at least temporarily. Newspaper subscriptions have always been fairly costly on a blue-collar salary, but buying a computer requires a far larger outlay of money - and thus is an increasingly unlikely decision for a household of modest means in an historically bad economy.

White-collar workers may be able to use the Internet at work, but blue-collar workers will likely have no such luxury. Thus, until television and the Internet merge, many blue-collar households may be limited to television news alone. That's unfortunate, for the Internet has the tremendous advantages of allowing the reader to select the news she reads, when she wants to read it, with the power to draw from a wide range of diverse sources in order to become truly well-informed and see all sides of an issue. In this sense, it is far superior to television news.

Conversely, though, when television and the Internet do eventually merge, we may see a historic move toward equality in media access -- as households that could never have afforded newspaper subscriptions now gain access to more or less the same panoply of media that better-off households enjoy, including Internet access.

The Perils and Possibilities of Media Consolidation

Meanwhile, at least in the short term, not only lower-income readers, but all readers, may have fewer media options than they had recently enjoyed, as the result of print media consolidation. Newspapers have responded to the economic crisis with consolidation on every level - from simply employing fewer movie reviewers; to closing a foreign or Washington, D.C. bureau; to contemplating mergers with other papers.

Each such decision impoverishes the marketplace of ideas a bit - for reporters, far from being simple recorders of fact, make crucial choices as to what to cover, how to cover it, and whom to consult. Having two separate Iraq bureaus run by two different media companies is not redundant, any more than having two presidential candidates is: Competition encourages excellence and forces each competitor to better define itself.

Yet financial realities mean that newspapers must save money somewhere - and many have understandably chosen to focus on their core competencies, while eliminating or diminishing their presence in areas where their prominence was less clear. Washington Post publisher Katharine Weymouth's memo about the paper's strategic direction provides a good example: Weymouth states that the Post is seeking to focus on "things that will make us indispensable to our customers" and, similarly, to devote resources to areas "where we hold unique competitive advantage when compared with the many alternative sources of news, information, and e-commerce made possible by the new digital economy." One of these areas, she notes, is the Post's preeminent coverage of Washington, D.C. politics.

In one sense, this approach is pro-First-Amendment, in that it aims to make coverage more "robust" by having the Post focus more intensely on the areas where it does the most, and where it would be most sorely missed if it exited. Here, the economic and free-speech marketplaces converge to some extent: Unique offerings that command a strong, loyal audience will both draw readers and advertisers, and serve free-speech values in the bargain. A robust marketplace of ideas should offer excellent content on a wide variety of topics, and it makes sense for journalists and media companies to focus upon what they do best.

Yet this approach is also arguably anti-First Amendment at the same time, for media consolidation also poses the danger of monopolization: If every newspaper follows the Post's strategy to concentrate on the areas where it provides uniquely valuable coverage, then the diversity of viewpoints in each area will be lost. On each topic, we may hear only a single message from the only newspaper equipped by direct reportage to know all the facts. This is already the case with countries where only the New York Times has a foreign bureau.

Was Making Newspapers' Websites Free a Fatal Mistake - or An Inevitability?

The endgame here is clear: Someday fairly soon, newspapers as we now know them will not exist (except possibly in a format for commuters, as long as they remain more convenient than online options). But how will we get from here to there, how long will it take, and how high a toll will the process exact on First Amendment values?

Unfortunately, one way to ease the transition has been essentially ruled out: Because most newspapers' websites do not charge for access, the chance of websites' subsidizing print editions is far less than it might have been. Indeed, instead of subsidizing their print editions, newspapers' websites are effectively competing with them - and winning, as readers decide not to opt to buy the very same content they can read for free online. Joel Brinkley put the point well in his December 21 piece "How to save the newspaper industry" for the San Francisco Chronicle: "Imagine a company that sells you a product each day - while at the same time that company produces an enhanced version of the same product and gives it away, hours earlier, for free. How long would you continue buying that product?"

Brinkley proposes an interesting solution: an exemption to antitrust law that would allow newspapers to agree among themselves to charge a fee for access to their websites. In making this suggestion, he describes the core challenge for newspapers (online and in print): Newspapers must "provide unique, exclusive content that readers crave and cannot get anywhere else." The description is strikingly similar to the Post's Katharine Weymouth's in her strategy memo - perhaps because specialization is now the only game in town when it comes to the survival of newspapers, the only way to attempt to keep what was best about each of them intact.

Surely, if newspapers do specialize in doing what they are best at, then putting a stronger focus and devoting greater resources to their forte will lead to higher-quality journalism. But - troublingly - it may be the case that readers will not be discriminating enough about quality to pay much more for better journalism, if adequate or roughly equal journalism is available for free online. (Brinkley himself cites politico.com and espn.com as possible competitors to major sections of newspapers' websites.) Readers may well pay a premium for the highest possible quality only when information affects them directly - and, especially, financially.

In this vein, it seems significant that the financial press - whose information has direct monetary value, with subtleties making all the difference to that value - has fared the best, thus far, at making a pay-to-read model for certain articles work. In contrast, Inside.com was not able to make the same model work for the entertainment industry, where accurate, previously undisclosed information can still be financially valuable, but less directly so than in finance. (The Inside.com site is defunct, but recently plans were afoot to use its brand online somehow.)

It remains to be seen where other categories of news fall on the continuum, but it seems likely that the evidence won't be comforting - for here is where the marketplace of ideas that the First Amendment values, and the literal economic marketplace, will truly diverge in the short term. The core of our constitutional system is politics, not finance, yet we are likely to have higher-quality financial reportage than political reportage for a significant time, as money at papers like the Post runs short even for the more specialized docket Weymouth envisions.

In the long run, the Internet's resources, ranging from blogs to online video to "citizen journalism," may bring our political reportage back up to its height. So may many sites' and Internet users' ability to combine the resources of multiple sites via various meta-methods. First, however, we are likely to have a recession in journalistic quality, diversity, and scope to match the economic recession we are already enduring.


Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for a decade. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes free MP3 and text downloads of the novel's first chapter.



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