A Free Press Will Not Be Fair

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Photo by Jon Sailer on Unsplash

The First Amendment to the US Constitution contains some of the most important safeguards for a free society.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Three basic rights are enumerated in this amendment (separated by semicolons): 1) freedom of religion, 2) freedom of expression, and 3) freedom to assemble to petition the government. Freedom of expression includes “speech” and “press” in the same phrase. While we may have a modern idea about what “the press” is, it seems rather obvious that the printed word was meant to be protected as a generic form of free expression.

At the founding of our republic, printing presses were the only plausible way to produce printed material in any volume. Considering its seminal role in the American Revolution, I suspect the founders were concerned about protecting the publication of printed material in general — e.g., Thomas Paine’s highly subversive Common Sense. Had they meant to only protect news outlets, I’m guessing they would have used the word “newspapers”, a term that was in common use at the time.

The US Supreme Court seems to have accepted this observation, rejecting claims that journalists deserve any special protection beyond those available to everyone else. This is as it should be, especially in an era in which the spoken, printed, and visual word can be effortlessly produced and distributed at much lower relative cost than when the Constitution was written. Why should employees of the New York Times or Fox News deserve any special speech protections not afforded to every citizen? For the purposes of the First Amendment, the New York Times and Fox News are just as much press as my personal blog.

Over the years, journalists and the companies that hire them have promulgated the myth that “the press” refers to news media. The organizations that comprise the news media certainly wield much power to promote a variety of viewpoints, both political and otherwise. But lest we forget, these are private entities with no prescribed governmental responsibilities. Their activities are protected, like yours and mine, by the First Amendment. But they are not statutorily responsible to the public.

Many of us often long for news media that is “fair and unbiased”. Perhaps we fondly remember the days of Walter Cronkite and David Brinkley when broadcast journalism enjoyed a widespread positive public opinion. Lest we forget, however, the Cronkite and Brinkley news shows were broadcast on publicly owned airwaves that were highly regulated by the US government. Yes, they were regulated to be largely fair and unbiased, so much so that it’s hard to imagine that Cronkite or Brinkley, had they transmitted on King George’s airwaves, would have broadcast anything as incendiary as Common Sense.

It’s also certainly true that fair and unbiased, much like beauty, is in the eye of the beholder. Progressives believe that MSNBC is fair and unbiased. Conservatives disagree. Conservatives believe that Fox News is fair and unbiased. Progressives disagree. Since there is no independent arbiter of such things — and there shouldn’t be — we are left with the conclusion that both views deserve a place in our public discourse.

It seems particularly dangerous, particularly in an era with authoritarian inclinations on display, to authorize some institution to act at our behest. Fallible, politically appointed, and potentially nefarious humans will be asked to make those determinations, replacing the multitude of independent diverse decision-makers now acting in a raucous marketplace of ideas.

News outlets have always been biased. Around the world and throughout time, people have always been keenly aware of the political biases of newspapers and broadcast outlets. Bias in news is nothing new. It has a long tradition. It is a natural consequence of speech and press freedoms in a diverse society.

So, we have to ask, why is it that we seem to be so generically dissatisfied with the news that is being produced? Shouldn’t we at least be satisfied with our favorite outlets?

A 2019 Gallup Poll solicited opinions about the honesty and ethical standards of people in different professions. 37% of respondents ranked Journalist’s standards to be low or very low, barely better than Lawyers and State Governors. And our opinion of them is going down. Even as late as 1992, only 15% of respondents ranked journalistic standards below average.

A CEO friend of mine recently pointed out that a business’s “customers” are those who fund the enterprise. They’re the source of its income. Unfortunately, we in the US haven’t had to pay full price for our news for some time. Broadcast news is funded through paid advertising. Even CNN, Fox News, and MSNBC are paid for by a combination of advertising and cable subscriptions. And it’s well-known that the business model for most newspapers is such that advertising pays for producing content while subscription fees pay for printing and delivery. More than two-thirds of domestic news revenue comes from advertising.

The problem is that we, the consumers of news, are not the customers of news, advertisers are. We’re the audience. Advertisers are the entities with financial skin in the game. Yes, advertising rates respond to readership/viewership. But advertisers don’t pay for good content, they pay for eyes on their ads. Even nonprofit digital outlets (e.g., ProPublica, Texas Tribune, The 19th) derive most of their revenues from major contributors, not readers.

If the production of news were a normal business activity, we might expect bouts of creative destruction. We might expect disruptive innovations (especially in our well-connected internet world). We might expect competition to create better choices. None of these things seem to be happening. Advertisers are apparently quite happy with the current state of affairs. There still seems to be plenty of eyes on the news.

It’s unfortunate that our “free” press has become so commercially free. It doesn’t take long for free stuff to feel like an entitlement. If we had to pay for our news, perhaps we’d be more discerning and therefore more satisfied with our preferred outlets. Advertising revenue is a poor second-hand alternative to free market choices.

Fast forward to 2020. There are new kids in town — social media. Surely, you say, social media doesn’t qualify as “press”. Au contraire. Social media (the most ubiquitous being Facebook and Twitter) are our distinctly modern form of press. They’re a place than any ordinary citizen can publish pretty much whatever they want (though there are some important restrictions). It’s not hard to imagine that Thomas Paine might have used social media to promote Common Sense.

But there’s an important caveat that should be considered here. Traditional forms of press both own their platform and pay for content (i.e., reporters). As owners who control content, they are compelled to be cognizant of both consumers and advertisers. Going too far astray threatens readership and ultimately revenues. Though sometimes poorly managed, this feedback loop at least provides some guardrails on content. Content providers are constrained by their desire to keep the enterprise in business.

The social media publication model is upside down. Content is not provided by the owners of the platforms but by consumers (but not customers). When content providers are also consumers and have no financial skin in the game, anything can, and does, happen. The near ubiquitousness of some of the platforms (e.g., Facebook and Twitter) along with the low cost of content publication make perverse incentives inevitable. It’s little wonder that there are calls for platform providers to referee the pandemonium. Though they might feel public pressure to better moderate their sites, economic incentives (e.g., targeted advertising revenues) provide a contrary incentive.

It would be perilous for social media platform providers to robustly police what has effectively become an immense pseudo-public square. Not only are the wrong incentives in place, but unlike the government, social media platforms are not restricted by the First Amendment. They, like the rest of us, are protected by it.

Given the large number of people who use social media as their primary means of gathering news, we have quite a dilemma on our hands. Much as we might like them to be, social media platforms are not modern public squares. At the same time, we recognize that the widespread consumption of social media content is, much to our dismay, providing a plethora of misleading and divisive news that tends to drive us apart, in spite of the promise of technology to do just the opposite.

It’s a shame that among the thousand blooming flowers are thousands more ravaging weeds.

The way out of this problem is replete with land mines. We should tread carefully. More government regulations or more private entity content control from the social media giants are not likely to help. The shitshow is already here. Given the internet as it is, attempts to control it would likely be doomed to failure. Besides, we still have to contend with that pesky (and magnificent) First Amendment.

But there are things that we concerned citizens can do about the media-abetted state of our cultural malaise. We can frequent and pay for (or donate to) our preferred platforms and news outlets. We can refrain from passing along comments and tweets (even those we agree with) that only serve to increase rancor. And when we do engage in online debate, we can do so in a spirit of civility and mutual respect — even with those that don’t deserve it.

Now would be a good time to honor the wonderful friendship of Antonin Scalia and Ruth Bader Ginsburg.

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