The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Journal of Free Speech Law: "Sober and Self-Guided Newsgathering," by Prof. Jane Bambauer

Just published as part of the symposium on Media and Society After Technological Disruption, edited by Profs. Justin "Gus" Hurwitz & Kyle Langvardt.


The article is here; here are the Introduction and Part I:

This chapter addresses an underappreciated source of epistemic dysfunction in today's media environment: true-but-unrepresentative information. Because media organizations are under tremendous competitive pressure to craft news that is in harmony with their audience's preexisting beliefs, they have an incentive to accurately report on events and incidents that are selected, consciously or not, to support an impression that is exaggerated or ideologically convenient. Moreover, these organizations have to engage in this practice in order to survive in a hypercompetitive news environment.

To help correct the problem, this chapter outlines new forms of newsgathering tools that leverage digital information to provide a sense of how representative (or not) any particular event may be. This contextualizes the news and leads to more sober—that is, less hyperbolic and reactive—interpretations of it. Newsgathering institutions can also become much more interactive so that a participant has the ability to easily find facts that they are confident will not be tainted from the strategic selection or cherry-picking of a news authority or intermediary. These tools will make newsgathering more self-guided.

[I.] The Proliferation of True-but-Misleading News

Many beliefs circulating through American discourse at any given time are in some sense corrosive—to society, to personal health and safety, or to some other part of life. The path to these corrosive beliefs is tiled with true-but-misleading information. Although the American news landscape is marred by some wholly made-up stories (that the COVID vaccine includes trackers, for example), these falsities make up a relatively small set of corrosive beliefs. Most corrosive beliefs have some factual corroboration—some true anecdotes that undergird the beliefs. But the factually true anecdotes imply something larger that is not supported by more representative data.

For example, vaccines are "dangerous" in the absolute sense. There are examples of side effects and even death caused by the COVID vaccines. But on a relative scale they are safe—that is, they are much less dangerous than the risks from not vaccinating (for most people). Thus, the distorted beliefs that tend to emerge on the political right are the result of exaggerating the likelihood of vaccine risk or undervaluing the likelihood of severe illness and death from COVID among the unvaccinated, or both. The same criticism can and should be levied on the political left, too, based on the perceived risk of COVID to children. Children can, of course, contract and even die from COVID, but these risks are lower than the risks from other viruses like RSV that we have implicitly chosen to tolerate as a background risk. An unvaccinated child is at much lower risk of contracting COVID than a fully vaccinated adult. When the news focuses on child mortality from COVID or on vaccine danger, it does damage to the full truth. Beliefs about terrorism and police violence tend to suffer from a similar lack of scale and proportionality.

This is not a new phenomenon. Ashutosh Bhagwat's chapter provides a reminder that the newspaper and broadcast gatekeepers in the 1990s were already shedding the journalism ethic of maintaining even the perception of a "view from nowhere." Yochai Benkler and his coauthors provide some empirical evidence that news organizations that cater to a more conservative audience began to drift further to the ideological right when talk radio provided alternative channels for news and discourse for an audience that was alienated by the mainstream news. 24-hour cable news provided even more opportunity for alternative content. Increased competition gave each news organization increased economic incentive to highlight facts that are consistent with, or at least not offensive to, their audience's worldview. Given that any audience is only human and susceptible to political tribalism, the problem of unrepresentative and cherry-picked facts is utterly unsurprising.

When there were only a few gatekeepers, there were fewer incentives to cater to political tribalism in this way. Even if the two newspapers in a town had traditionally catered to different political audiences, both papers had incentive to stay close to the median audience member so that they might win over readers from the other paper. Without serious competition on the far left or right that could outflank the paper, catering to the middle had no economic disadvantages. But when more news organizations compete for audience, the economic strategy changes. Facts will predictably be picked to match the interests and priors of more fractured, niche audiences.

Quite understandably, news organizations of longstanding status like the New York Times are defending their turf and claiming identity as a uniquely trustworthy source for truth without reckoning with the fact that their survival depends on supplying facts that cater to the short-term preferences of their readers. Breitbart is just as understandably trying to discredit the New York Times and establish itself as a better, more legitimate gatekeeper for facts. Breitbart's insurgency is carried out without acknowledging that its survival, too, depends on supplying facts that cater to its audience (which demands a desecration of established, elite gatekeepers). These two sources of news are not at all equivalent, but that says more about the beliefs and demands of the audiences that each has been able to attract than it does about an enduring commitment to delivering facts that accurately represent reality.

Modern journalism fails to meet a duty of proportionality. Proportionality would require that the decision to report about a threat and the manner in which it is reported are informed by how risky it is relative to other widely known and understood threats. Proportionality goes to subtext—whether a particular story is worthy of a reader's attention given other concerns that might deserve the reader's focus. The Elements of Journalism devotes a chapter to making the news "Comprehensive and Proportional," but this element is in direct tension with the economic viability of the modern newsroom.

The Society of Professional Journalist's Code of Ethics does not even require proportionality in its list of duties for seeking truth. Instead, the search for truth is described in narrow terms of factual accuracy as well as more abstract terms like being "vigilant and courageous about holding those with power accountable" and "boldly tell[ing] the story of the diversity and magnitude of the human experience." These objectives actually exacerbate the problem by pushing journalists to prioritize the unusual or anti-authority stories. They are in tension with the sort of corrective I will propose here—encouraging the use of tools that allow readers to understand in a statistical way whether an event is an aberration or not.