The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Journal of Free Speech Law: "Beyond the Watchdog: Using Law to Build Trust in the Press," by Prof. Erin Carroll
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 is the Introduction:
It was 1971 and Los Angeles Times editor Nick Williams had what he called a "terribly uneasy feeling." In a letter to one of the paper's Washington correspondents, he wrote of his suspicion that journalism had "lost credibility … with an alarming percentage of the people." If the plummet continued, Williams fretted, journalists will have "destroyed or weakened a keystone of our Constitution."
Williams's assessment was not entirely wrong. Polling data from 1971 confirmed that a dismal 18% of Americans had a "great deal of confidence" in the press.
But he also wasn't quite right. Far from undermining American government's democratic foundations, the press was likely shoring them up, having already entered what has been called its "Glory Days." This era was brought about, in part, by the press's performance of its watchdog role, exposing political corruption and government cover-ups. It was also brought about by something else: law. The Supreme Court and legislatures boosted the press by celebrating this watchdog role and granting it tools to enhance this work.
Today, 1971 feels familiar. Polls again register dreadfully low levels of trust in the media. "Terribly uneasy" may be a generous description of how journalists feel about the public's perception of them and the press's ability to continue playing its democratic role.
Are we again on the verge of a reinvigorated and newly effective press, or is trust headed deeper into the abyss? Institutions, including the press, are at an inflection point. History gives press advocates a basis for optimism. Yet, history provides no failsafe template.
Today, if journalists were to double down on their still-vital watchdog role as a way of building trust, such an effort might backfire. There is a risk that in our hyper-polarized society, citizens would recoil, finding this aggressive brand of journalism too cynical, negative, and politicized. A new approach is needed.
A promising approach would be to embrace another key journalistic function, one that has received far less attention and adulation from judges, legislators, and legal scholars than the press's watchdog role: the press's role as a convener and facilitator of the public square. As Bill Kovach and Tom Rosenstiel write in their journalism classic, The Elements of Journalism, a key function of journalism is to "provide a forum for public criticism and compromise." Of late, journalists themselves are embracing this role as they develop what has alternately been called "community-centered journalism," "social journalism," and "engaged journalism."
This journalism movement envisions the relationship between journalists and citizens very differently than watchdog journalism does. In watchdog journalism—true to the metaphor—journalists are protectors of the public. As watchdogs, they use their professional expertise and privileged position as members of the Fourth Estate to expose government wrongdoing. In this way, the press exercises a position of power over citizens. The intent is to wield power benevolently and in the public interest, but it is a hierarchical relationship nonetheless.
In contrast, community-centered journalism intentionally seeks to minimize that power differential. It brings citizens into the news-making process—from deciding what to cover, to assisting with information-gathering, to providing post-publication feedback—creating what Tom Rosenstiel has called a "virtuous circle of learning." Some community-centered journalists have gone so far as to say that the movement's primary aim is not necessarily the creation of news; it is building trusting and healthy communities. News is a byproduct.
Judges, legislators, and legal scholars should take note of this shifting journalistic landscape. Just as law helped to build and maintain public trust in the watchdog press in the 1960s and 70s, law likewise has a part to play now. The legal system can solidify the role of the press not only as a watchdog (still a necessary function) but also as a facilitator and convener, as exemplified by the community-centered press movement. And it can do so using methods drawn from the Glory Days: positive rhetoric about the press and legislation that eases the press's ability to fulfill its democratic functions. Legislation could be as straightforward as allocating funds for local meeting spaces and training for journalists. By creating a legal framework for the press that is richer and more reflective of diverse journalistic practices, law would strengthen the "virtuous circle" Rosenstiel describes. Greater public trust in the press could be a byproduct.
