FREEDOM OF THE PRESS IN POST-TRUTHISM AMERICA.

• Author: Jones, Ronnell Andersen

TABLE OF CONTENTS INTRODUCTION I. POST-TRUTHISM AND THE PRESS II. THE GAP BETWEEN SUPREME COURT ASSUMPTIONS ABOUT PRESS AUDIENCES AND THE REALITY A. The Supreme Court's Assumptions About Press Audiences 1. The Truthseeking Assumption 2. The Rational-Processing Assumption 3. The Updating Assumption B. The Gap Between Supreme Court Assumptions and the Reality of Press Audiences 1. Social Science Research Demonstrating the Flaws in the Truthseeking, Rational-Processing, and Updating Assumptions 2. Current Exacerbating Factors III. THEORETICAL RESPONSES TO THE GAP BETWEEN ASSUMPTION AND REALITY A. A Wider Marketplace Inquiry: Why Audience Shortcomings Do Not Undermine Press Freedom Rationales B. Identifying "Market-Enhancing" Features of "The Press " 1. Newsgathering 2. Accessing 3. Prioritizing 4. Substantiating 5. Educating and Contextualizing C. Confronting Partisanship: Can the Partisan Press Be Market Enhancing? 1. Partisanship as a Heuristic for Preferred Prioritization and Curation 2. Partisanship as a Heuristic for Accurate Verification CONCLUSION INTRODUCTION

Freedom of the press in America is at a critical crossroads in a number of ways, but one way stands out as most fundamental: the stark impact of the current debate over "Post-Truthism." Press freedom jurisprudence has long been structured around the concept of an audience member's search for truth in a marketplace of ideas. But social science research increasingly suggests that individual information consumers are in fact often driven by emotion, political identity, and the need for cognitive shortcuts, and that they may not possess the truthseeking, rational processing, or information- updating capabilities that the United States Supreme Court assumes. The individual search for truth in the marketplace of ideas, some have suggested, is not happening--or at least not happening in the way the Supreme Court's press jurisprudence has envisioned.

Whether this divide between jurisprudence and reality actually exists--and what to do about it if it does--are pressing questions for both the courts and the media, made all the more pressing as the changing media landscape and the modern political climate exacerbate some components of the Post-Truthism critique. The concern for some is that if press freedom has rested on flawed assumptions about the nature of press audiences, the growing awareness of those limitations may undermine the marketplace-of-ideas justification for press freedom and its associated press protections.

This Article investigates both questions. It finds that the factual premise--that the Supreme Court has made erroneous assumptions about the motivations and behaviors of information audiences--is accurate but argues that the theoretical consequence of this gap is just the opposite of what some have suggested. Instead of undercutting the rationales for press protection, this wider modern understanding of the information-processing and truthseeking limitations of individual press consumers in the marketplace of ideas actually underscores the need for protection of the press as a market-enhancing institution. This market enhancement can introduce efficiencies by reducing information-collection costs, information-consumption costs, and information-transaction costs. This Article argues that a fuller appreciation of this dynamic can provide helpful insight into why the Constitution might provide unique Press Clause protections and into some of the functions that would qualify an institutional actor as "the press" for purposes of that constitutional protection--an identification process that will be increasingly vital as information consumers shift from legacy media to new forms of content delivery. The Article probes these functions and offers a conceptual framework for granting Press Clause protection to market-enhancing entities that compensate for the inherent shortcomings of individual information consumers.

Part I describes the epistemological phenomenon of Post-Truthism and the concerns it has raised about the validity of the marketplace-of-ideas metaphor in the press freedom context.

Part II compares the Supreme Court's characterizations of the behaviors and capabilities of press audiences in the marketplace of ideas with social science data about the actual behaviors and capabilities of those audiences. Part II.A identifies the three most foundational assumptions made by the Court--what we label the Truthseeking Assumption, the Rational-Processing Assumption, and the Updating Assumption--and then Part II.B describes the evidence that these assumptions are seriously flawed.

Part III questions the theoretical response to this gap between assumption and audience reality, pushing back against the conclusion that a greater awareness of audience limitations within the marketplace of ideas should erode the foundation of press protection. It describes the ways that press- audience limitations create compelling reasons to protect the market-place-enhancing functions of the press and urges that the ongoing effort to imbue the Press Clause with substantive meaning take these compensating functions into account.

In the Conclusion, we argue that the protection-of-press-functions approach allows the Court to acknowledge the flaws of individual information seekers without abandoning the aspiration of fact-based, public reasoning and that it will provide a clear path forward for strengthening the press institutions that promote and support those important norms of informed public discourse. This doctrinal guidance is critically important in the changing media landscape, as a functional definition of the press becomes increasingly valuable.

1. POST-TRUTHISM AND THE PRESS

   It has become almost a commonplace to suggest that America is in the midst of an epistemic crisis, a crisis that challenges long-settled expectations about how we come to know truth and about the role that objectively provable, verifiable facts can or should play in decision-making on matters of public concern. (1) Indeed, many have suggested that we may be at a crossroads--at the advent of a new "Post-Truthism" age in which objective facts and deliberative decision-making are subordinated to emotion and partisanship in the search for truth. [2] These shifts arguably threaten development of the shared understandings about the world that traditionally have been thought to undergird and sustain democratic decision-making.

   Many political elites and other influencers are increasingly promoting a worldview in which a crude version of truth-as-feeling seems to substitute for empirical evidence. [3] Thus, for example, when CNN reporter Alisyn Camerota confronted former Speaker of the House and "Contract with America" author Newt Gingrich with FBI statistics contradicting his claim that violent crime was up in America, he insisted that his assertion was "also a fact. ... The current view is that liberals have a whole set of statistics that theoretically may be right, but it's not where human beings are." [4] When the reporter pushed back, Gingrich repeatedly insisted that people's feelings about crime levels were "equally" as "true" as FBI statistics and that, as a politician, he would "go with how people feel and let [the reporter] go with the theoreticians." [5]

   Claims that we are in a Post-Truthism era have likewise been heightened by developments in the Trump administration--including Kellyanne Conway's insistence that former White House Press Secretary Sean Spicer's false claims about the size of the Trump inauguration crowd were "alternative facts," not misstatements or falsehoods, (6) and attorney Rudy Giuliani's much-parodied suggestion that "Truth isn't truth." (7)

   And, of course, the figure who has loomed largest in much Post-Truthism commentary is President Trump himself, who has a notoriously loose relationship with the truth and who often labels journalism "fake news" when that coverage is unflattering, even when the underlying facts are correct. (8) Many have noted that President Trump seems to care little about empirical facts, as evidenced by the fact that he has made more than 20,000 "false or misleading claims" since taking office. (9)

   These changing mores about truth among politicians and other powerful elites have coincided with the popularization of a growing body of social science research that highlights real limitations in human rationality and cognition and the influence that emotion and "motivated reasoning"-driven by our desires to belong, to feel safe, and to express important aspects of our identity--do, in fact, have on the ways we seek out and process information about the world around us. Even as some politicians have seemed to affirmatively endorse and even celebrate these limitations and biases in human cognition, many commentators have bemoaned what these social science findings might mean for both our individual ability to be decent, informed democratic citizens and our collective search for truth. (10)

   Nowhere have these concerns played out more forcefully than in the ongoing public conversation about the role of "the press" in our democracy. From debates about "fake news," to conversations about declining trust in the media, to concerns about online "echo chambers" that may reinforce and amplify people's existing views, there is a lively and impassioned debate about what this social science research and the Post-Truthism era, more generally, mean for the future of the press and press freedoms. (11)

   This focus is hardly surprising, given the critical role that the press plays in gathering and distributing the information that propels us forward in our collective search for truth. Indeed, the Supreme Court itself has long emphasized the press's role in enabling the "marketplace of ideas" as a critical normative justification for press freedom. (12)

   While this marketplace-of-ideas theory has long been criticized for a variety of conceptual and...