As a professor of Media Law, I have devoted my career over the past quarter of a century to the idea that the press plays a special role in our democracy. That role is largely encapsulated by the concept of the press as Fourth Estate--an unofficial branch of government in our scheme of separation of powers that checks the power of the three official branches. (1) In our constitutional scheme, the press is the watchdog that informs us what the legislative, executive, and judicial branches of government are up to and continually replenishes the stock of news--real news--that enables informed public discussion and rational public policy.
Currently many observers, including the distinguished contributors to our Price Sloan Symposium Issue, believe that the Fourth Estate is under threat. The threat comes from various quarters.
Perhaps the biggest threat is economic. The Internet has changed the way Americans seek and consume news to the detriment of the legacy newspapers and other legacy media that have traditionally comprised the Fourth Estate. Since at least the early 2000s, legacy media have had to compete for eyeballs in an information marketplace teeming with free, if not always reliable, content. (2) Coming on the heels of a prolonged period of declining audiences for news, the last year was a hard one for news media. According to a 2017 Pew Research poll, "the audience for nearly every major sector of the U.S. news media fell in 2017--with the only exception being radio." (3) Newspapers lost 11% in weekday circulation and 10% on Sunday. (4) Meanwhile, the viewership of evening and morning news programs declined substantially--7% and 10%, respectively. (5) Local television news also lost out, with a 15% decline in morning news viewership and a 7% decline in evening news viewership. (6) Even cable faced a declining number of evening news viewers in 2017, though cable news profits were up in the same period. (7)
As these statistics suggest, the economic threat to legacy media undermines their ability to perform the watchdog role. As profits have declined, the resources, expertise, and talent traditionally devoted to investigative reporting and even simple news gathering have declined correspondingly. (8) To make matters worse, legacy media are far less willing to litigate to protect their constitutional rights or statutory privileges or lobby to gain more. (9)
The picture is not universally bleak. In the last two years, subscriptions to The Washington Post and The New York Times have increased. (10) Legacy newspapers such as these as well as the non-profit digital newcomer Pro Publico (11) have been providing excellent investigative journalism. Meanwhile, cable news is thriving (12) along with a cadre of digitally native news organizations that have come on the scene (13) and are hiring reporters. (14)
Even so, the growth in these segments of the media does not adequately compensate for the declining number of local and print reporters. Local reporters in particular are the bedrock of public interest journalism, devoting themselves to the systematic gathering and reporting of information about the communities they serve. Fewer reporters and fewer resources devoted to newsgathering together with the decimation of expertise in U.S. newsrooms threaten the ability of the Fourth Estate to perform its constitutionally assigned role.
Certainly, the public questions whether today's news media are adequately performing their role and even whether that role is a valuable one. Just a half-century ago the public considered the news media "one of America's most trusted institutions." (15) Today, only some segments of the public still value traditional news media. Although 89% of Democrats still support the press' watchdog role, only 42% of Republicans do, according to a recent Pew research poll. (16) The decline in public support has been precipitous. In 2016, 77% of Republicans and 74% of Democrats still had faith in the special role of the press. (17) The partisan divide is even reflected in the media diet partisans consume. (18)
As these statistics suggest, legacy media are facing a crisis of legitimacy--at least among a large and important segment of the population. This crisis is exacerbated by President Donald Trump's repeated attacks, asserted in over one thousand tweets in his first year alone, (19) on the press as purveyors of "fake news." A growing body of commentary and scholarship examines the effects of the President's Twitter campaign against mainstream media--or at least against those who dare to criticize him. (20) For example, Professors Sonja West and RonNell Andersen Jones have previously shown how the President's attacks on the already weakened Fourth Estate...