Part I - Trusted Communicators

1 Introduction Trusted Communicators

Kyle Langvardt

Trust in media institutions has declined more or less apace with trust in every other kind of major institution in public life. Or perhaps it is more correct, as Ashutosh Bhagwat observes in his contribution to this project, to say that trust has declined in the types of media institutions, the proverbial Walter Cronkites, that dominated “the media” during the twentieth-century period when modern American ideals around free speech and journalistic value were still taking form.

Today much of the trust that mainstream media institutions once enjoyed has migrated, in a fragmented way, toward attention merchants of various shapes and scales that treat the news as a mere opportunity to juice engagement by serving identity-affirming content to targeted market segments. And though some of the major mainstream media institutions survive and continue to produce top-quality factual reporting (the New York Times, for example), even these outlets must play the identity-affirmation game at some level. There is no way in such an environment for America’s trusted media communicators to play the consensus-building role that they once did. Instead, the trust dynamic between Americans and their many news sources today works to accelerate polarization and exacerbate their seeming inability to agree on the facts.

All of the authors in this research cluster agree that the collapse in media trust (or diffusion of media trust, however you want to view it) stems, at least in part, from technological changes that have expanded competition among news producers and created a “buyer’s market” for news. Within these constraints, what can worthy, fact-based media institutions do to restore the trust they have lost?

In Chapter 2, “Getting to Trustworthiness (but Not Necessarily to Trust),” Helen Norton opens the discussion by backing up a step: What does it mean for a news outlet to be worthy of trust? The question invites two observations. First, an institution may misappropriate the trust of many readers, or something functionally similar to trust, by pandering to them, manipulating them, or engaging in a range of other similar practices that make an institution less worthy of trust rather than more. But second, it may also be possible for an institution to gain a degree of public trust by demonstrating its trustworthiness in noticeable ways – and if done skillfully, this second approach may provide at least a partial path toward aligning economic viability with ethical reporting. Professor Norton’s chapter takes some initial steps on this path, identifying a working index of trustworthy and non-trustworthy media behaviors and offering some ways to elevate trustworthy behaviors. But she acknowledges that this high road will be hard and uncertain.

In Chapter 3, “Sober and Self-Guided Newsgathering,” Jane Bambauer discusses one particularly insidious form of untrustworthy reporting: dramatic coverage of facts that are accurate but nevertheless misleading because they are statistically unrepresentative. Such reporting, which often plays on identity-driven fears or hostilities, causes harm by inspiring news consumers to approach life, and each other, with overcaution and hostility. But as Professor Bambauer argues, media institutions trying to compete in a fragmented market face intense pressure to produce just this kind of content. Audiences demand it because they are victims of heuristic biases that make them crave identity affirmation. Professor Bambauer therefore proposes a bit of very difficult jujitsu: If news producers cannot get out from under reader demands in a buyers’ market, then they should try to reshape reader demands by retraining them to put facts in better perspective – or at least to invest their trust more intelligently in institutions that do. But this maneuver – as Professor Bambauer concedes – will take a very long time to execute.

In Chapter 4, “The New Gatekeepers? Social Media and the ‘Search for Truth’,” Ashutosh Bhagwat questions whether it is even appropriate to hope that some new generation of gatekeepers can pick up the Walter Cronkite mantle. As he argues, the whole notion that a select few should play gatekeeper based on their status as elite “trusted communicators” chafes against the “marketplace of ideas” theory that conventionally motivates First Amendment thought. Or perhaps more to the point, a market clustered around trusted communicators looks less like the bazaar that Oliver Wendell Holmes envisioned and more like a real market, with heavy concentrations of power that tend to draw from accidental circumstances and endowment effects rather than some ideal of consumer rationality. On this view, Cronkite had the public’s trust because there was only enough spectrum for a few networks; Google has the public’s trust because it is the gateway to the internet. Yet we have looked to these gatekeepers to set terms for public discourse and the democratic process – an odd result given that neither gatekeeper secured its position by actually persuading the public.

Finally, in Chapter 5, “Beyond the Watchdog: Using Law to Build Trust in the Press,” Erin Carroll argues that the various problems of media trust may appear less intractable if the law would update its sense of the role journalists should play in a democratic society. For more than half a century, an adversarial “watchdog” ethic of journalism provides the near-exclusive metric for journalistic prestige in the United States. This same view of the press shapes the most memorable press-freedom rhetoric from the Supreme Court and animates most portrayals of journalists doing good work in movies and TV. But the watchdog role, as Professor Carroll observes, can exacerbate partisan dynamics while narrowing a news institution’s base of trust in the community. So while the watchdog ethic provides invaluable benefits to democratic governance, it can also frustrate democratic governance and impair trust in media if news institutions lean exclusively into it. Instead, Professor Carroll urges news institutions to rediscover the largely forgotten idea that news institutions should aspire to act as facilitators and fora for citizen discourse in a democratic community. Such a role does not lend itself so much to the segmented identity-affirmation dynamic that undermines public consensus and solidarity and motivates untrustworthy coverage. And as a mode of speech governance, this is a role that would ideally advance public discourse rather than control it.

2 Getting to Trustworthiness (but Not Necessarily to Trust)

Helen Norton

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2.1 Introduction

Political scientist and ethicist Russell Hardin observed that “trust depends on two quite different dimensions: the motivation of the potentially trusted person to attend to the truster’s interests and his or her competence to do so.”¹ Our willingness to trust an actor thus generally turns on inductive reasoning: our perceptions of that actor’s motives and competence, based on our own experiences with that actor.² Trust and distrust are also both episodic and comparative concepts, as whether we trust a particular actor depends in part on when we are asked – and to whom we are comparing them.³ And depending on our experience, distrust is sometimes wise: “[D]istrust is sometimes the only credible implication of the evidence. Indeed, distrust is sometimes not merely a rational assessment but it is also benign, in that it protects against harms rather than causing them.”⁴

Actors and institutions thus cannot control whether others trust them.⁵ So in this chapter, I focus not on how to encourage the public to trust the media, but instead on how to encourage the media to do what it can control – in other words, to behave in ways that demonstrate its trustworthy motives and competence.⁶

To be sure, different communities find different behaviors indicative of trustworthiness, and thus the media’s choice to behave in ways that some communities find trustworthy may simultaneously inspire other communities’ distrust. For example, as demonstrated by an exhaustive study conducted by information and technology scholars Yochai Benkler, Robert Faris, and Hal Roberts, some contemporary media cultures value, and thus trust, media institutions that privilege truth-seeking – while others trust those that simply confirm identity:

Media and politicians have the option to serve their audiences and followers by exclusively delivering messages that confirm the prior inclinations of their constituents, or by also including true but disconfirming news when the actual state of the world does not conform to partisan beliefs. For media, this is the key distinction between partisan media and objective media.⁷

In other words, different media ecosystems confer, and receive, trust for different behaviors and different end goals.⁸

This chapter addresses media behaviors that are likely considered trustworthy in media cultures that reward truth-seeking rather than identity confirmation.⁹ It thus leaves aside the even more difficult problem of how to encourage other ecosystems to reward truth-seeking even when truth disconfirms identity.¹⁰

To start, consider how the media’s self-interest and incompetence (both real and perceived) create barriers to its trustworthiness. More specifically, self-interest is among the motives that trigger distrust: We find it hard to trust self-interested actors to act in ways attentive to our own interests.¹¹ The media’s potential for self-interest thus often fuels the public’s distrust, just as governmental actors’ self-interest also often triggers the public’s distrust.

When I speak of the media’s potential for self-interest, I refer to the media’s need to do whatever it takes to survive financially, especially in today’s destabilized media environment. Concerns about the media’s motives include perceptions that it is all too willing to invade privacy, oversensationalize, or cater to advertisers’ preferences for self-gain – in other words, to exploit others to capture users’ attention and engagement to protect its economic bottom line.¹²

Self-interested (and thus untrustworthy) media behaviors include the deployment of platform designs and interfaces that collect, aggregate, and analyze data about us in ways that enable them to influence our choices.¹³ To be sure, sometimes such designs and interfaces give us more of what we want. But too often they manipulate us – in other words, they influence our behavior in ways that we would resist if we were aware of these efforts. Nobody wants to be manipulated, especially when we understand manipulation (as a number of ethicists do¹⁴) to mean a hidden effort to target and exploit our vulnerabilities. Yet the contemporary speech environment enables that sort of manipulation in unprecedented ways.¹⁵ The news media is by no means immune, as press law scholar Erin Carroll has documented the substantial extent to which news organizations collect – and allow others to collect – data about their online readers.¹⁶ Indeed, some news organizations “are even trying to predict how a particular piece of news might make a reader feel and to target advertising accordingly.”¹⁷

These manipulative technologies also enable microtargeting that increases the likelihood that certain speech will cause harm, because “it is not subject to regulatory scrutiny, not subject to meaningful widespread public scrutiny and because [] false claims in such political ads are likely to be spread farther, faster, deeper, and more broadly than true claims in political ads.”¹⁸ So too does the amplification enabled by new technologies increase the likelihood that falsehoods or similarly destructive expressive choices will spread farther, faster, and more effectively.¹⁹

The media’s failure to demonstrate “respect for and knowledge of their readers and communities” also triggers suspicion of its motives and competence.²⁰ Consider, for instance, how public perceptions (accurate or not) that the media is arrogant toward, or disinterested in, its audience cast doubt on its willingness and ability to invest in and engage with that audience.²¹ Those who are less powerful cannot afford to trust those who are more powerful without meaningful constraints in place. (To be sure, those perceived as more powerful do not always perceive themselves as such; nevertheless, perceptions of relative power contribute to dynamics of trust and distrust.)

What does it mean for an actor to behave in trustworthy ways? Constitutional law often asks this question with respect to the government, devising doctrinal rules more suspicious of the government in contexts where courts perceive the government as untrustworthy.²² In the First Amendment context, for instance, experience suggests that the government is least likely to behave in trustworthy ways in settings where it may be self-interested, intolerant, or clumsy (as can be the case where it draws malleable lines absent adequate information or expertise).²³ Conversely, the government is more likely to behave in trustworthy ways in settings where its discretion is limited, where we do not see evidence of a self-interested or intolerant motive, or where the setting leaves us even more distrustful of powerful and unrestrained private actors than we are of the government.²⁴

This may also be the case for the media. The remainder of this chapter seeks to spur additional thinking about what it means for the media to behave in trustworthy ways. In so doing, it flags a handful of possibilities for checking the media’s potential to act in its own self-interest and for demonstrating its competence – sketching a menu of options (rather than detailing or exhausting them) that variously rely on markets, norms and architecture, and law.²⁵

2.2 Encouraging Trustworthy Media Behavior through Alternate Financing and Business Models

Proposals for new financial models seek to relieve the economic pressure on media to capture eyeballs at the expense of truth. Along these lines, some thoughtful commentators urge the government to provide financial support for news media through taxes on digital advertising and on platforms’ collection of user data.²⁶ Others emphasize the value of citizen journalists who are beholden neither to media owners’ nor to advertisers’ preferences and pressures.²⁷ Either way, the objective is to reduce or remove media’s financial dependence on satisfying others’ tastes and agendas, thus freeing it to choose more trustworthy behaviors.

2.3 Demonstrating Trustworthy Media Behavior through Norms and Design

The media can also demonstrate trustworthiness by rejecting manipulation, microtargeting, and similarly self-interested practices (to be sure, it’s easier to make such choices when accompanied by the sorts of changes in financial models discussed in Section 2.2).²⁸ More specifically, the media can choose designs, interfaces, and practices that encourage and enable curiosity (and thus truth-seeking) over those that manipulate user attention and engagement through outrage and identity confirmation.

Along these lines, Taylor Dotson, who studies the culture and politics of science and technology, recommends that the press offer not only fact-checks but “disagreement checks … that highlight the complicated sub-issues involved.”²⁹ In support, Dotson describes studies concluding that difficult conversations “aren’t constructive when participants think of them in terms of truth and falsehood or pro and con positions, which tend to spur feelings of contempt…. Simply reading an essay highlighting the contradictions and ambiguities in an issue leads people to argue less and converse more.”³⁰

Similarly, organizational psychologist Adam Grant recommends “complexifying: showcasing the range of perspectives on a given topic.”³¹ The related technique of motivational interviewing asks interviewees not only what they think, but how they came to think that and to identify their values; in other words, motivational interviewing focuses first on “finding out what someone knows and cares about rather than trying to convince them about something.”³²

And when journalistic practices themselves pose barriers to the media’s trustworthiness, trustworthy behavior includes reforming or abandoning those practices. As one illustration, the media can choose not to amplify, and thus reward, destructive behavior. Media scholars Joan Donovan and danah boyd recommend that the media intentionally engage in “strategic amplification,” urging the media to recognize “that amplifying information is never neutral” and thus to consider amplification’s costs along with any benefit it provides.³³ This means that news media at times should engage in strategic silence by declining to amplify coverage of certain behaviors, like high-profile suicides.³⁴

Relatedly, the media can choose to privilege truth over neutrality. Concluding that professional journalists “are subject to a persistent propaganda campaign trying to lure them into amplifying and accrediting propaganda,”³⁵ Benkler, Faris, and Roberts urge that journalists privilege “transparent, accountable verifiability” over “demonstrative neutrality” by providing enhanced public access to its underlying materials and sources and by encouraging sources’ independent verification.³⁶

Trustworthy behavior also includes demonstrated humility. This includes acknowledging one’s own limitations and one’s potential to harm others.³⁷ It also demands sensitivity to and empathy for our human cognitive and emotional frailties:³⁸ “[U]ndergirding our efforts to reach people should always be understanding and composure. No one is immune from bias, heuristics, or emotional decisionmaking.”³⁹ Demonstrated humility thus embraces the need for feedback, scrutiny, and (where appropriate) correction.⁴⁰ So too does the media’s demonstrated humility require its ongoing commitment to education and improvement. For instance, public-health experts Sara Gorman and Jack Gorman urge members of the media to invest in self-education about the nature of the scientific process (including what scientific evidence is and is not contestable) along with the cognitive science illuminating the challenges in communicating about these matters to a public uncomfortable with uncertainty.⁴¹

2.4 Encouraging Trustworthy Behavior through Law

As legal scholar, Martha Minow observes, law sometimes enables the media’s untrustworthy behavior.⁴² Indeed, Professor Minow identifies the government’s passivity as an additional barrier to a healthy news environment: “The critical and ongoing role of government in American media exposes as false any claim that the First Amendment bars government action now. The disruptive dimensions of the digital revolution are distinctive only in the relative passivity of government in attending to effects on markets, quality, and democracy.”⁴³

Just as law can be a barrier to trustworthy behavior, so too can law encourage – and even require – trustworthy behavior. As I’ve discussed elsewhere, differences in power and information sometimes matter to First Amendment law, allowing the government’s interventions that protect comparatively vulnerable listeners from comparatively powerful speakers.⁴⁴ The same can – and, in my view, should – be true of the government’s interventions in certain settings to protect listeners from speakers’ manipulative efforts (i.e., speakers’ efforts to target and exploit users’ vulnerabilities in ways hidden from those users).⁴⁵

More specifically, law can empower and protect audiences by requiring the media’s (and other powerful actors’) transparency about the data they collect from us and what they do with it.⁴⁶ Minow, for instance, urges courts to adopt an “awareness doctrine” to “improve users’ knowledge of the sources and nature of what they receive and also the patterns of their own engagement” – for example, by “involv[ing] content distributors in devising labels to distinguish news reports from opinion or unverified claims.”⁴⁷ Others propose that constitutional and other legal advantages be made available only to media actors that commit to behave in trustworthy ways. Along these lines, Peter Coe suggests that constitutional protections from the government’s interference with newsgathering activities should be available to media that “act[] ethically and in good faith and publish[] or broadcast[] material that is based on reasonable research to verify the provenance of it and its sources.”⁴⁸

2.5 Conclusion

The elephant in the room, of course, is that the media’s choice to engage in some of these trustworthy behaviors may undermine its ability to survive financially in a twenty-first-century speech environment rife with competition for listeners’ increasingly scarce time and attention. By “trustworthy behaviors,” I mean rejecting microtargeting, manipulation, and other profit-maximizing yet destructive practices. Declining to amplify destructive behavior. Disclosing data sources, evidence sets, the personal data that the media collects from its users and what it does with it. Demonstrating epistemic humility. Seeking out and responding to public feedback and scrutiny. Investing in self-education about scientific and other technical matters.

Indeed, our own oh-so-human cognitive and emotional vulnerabilities (that are themselves so often truth-resisting) contribute to the public’s distrust of the media in ways that are difficult for the media to address. For a variety of cognitive, social, and biological reasons, we often prefer the succor of identity confirmation over the discomfort of complexity and truth.⁴⁹ These frailties, in turn, may threaten the financial survival of media that refuse to cater to them.⁵⁰

In other words, as Guy-Uriel Charles explains, we have not only a supply-side problem when it comes to media outputs, but also a demand-side problem when we are reluctant to reward the media’s truth-seeking outputs.⁵¹ Even so, Erin Carroll focuses on the supply side when she calls on the press to develop new “practices of freedom.”⁵² And I too focus on the supply side in asking what it means for the media to behave in ways that demonstrate trustworthy motives and competence.

Easier said than done, I know.

3 Sober and Self-Guided Newsgathering

Jane Bambauer

3.1 Introduction

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.¹

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.

3.2 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.²

For example, vaccines are “dangerous” in the absolute sense. There are examples of side effects and even death caused by the COVID vaccines.³ But on a relative scale they are safe – that is, they are much less dangerous than the risks from not vaccinating (for most people).⁴ 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.⁵ An unvaccinated child is at much lower risk of contracting COVID than a fully vaccinated adult.⁶ When the news focuses on child mortality from COVID or on vaccine danger, it does damage to the full truth.⁷ 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.⁸ Twenty-four-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.⁹ Even if the two newspapers in a town had traditionally catered to different political audiences, both papers had an 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.¹⁰ 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,”¹¹ 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.”¹² 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.

3.3 More Access to True-but-Misleading News in the Internet Age

The internet generally and social media specifically has increased the prevalence of true-but-misleading news dissemination. This is so for several reasons:

1. (1) Source material. The internet provides abundant information from which events (especially bad events) can be selected. Moreover, the search costs for any particular type of (bad) event are also much lower. A person who proactively searches for cases where a child died of COVID or where an adult died from the vaccine will find them, and find them easily. Thus, the costs of gathering selective evidence are dramatically lower. To be sure, even in the era of the industrialized media, the facts that people encountered were nonrandom and were selected based on a number of factors and constraints, but it was more random than an information environment that is all but defined by self-selection through functionality like search and tailored news feeds.¹³

2. (2) Even more competition between news producers. Talk radio and the diversified array of channels on cable television may have begun the process of splintering the news industry, but the low costs of information distribution brought an explosion of online news producers that have intensified the competition and the pathologies that come along with news-as-a-consumable-good.

3. (3) Targeted news feeds. Just as the search costs for finding evidence have declined, the costs of matching news to listeners has also been dramatically reduced by technology. This is especially true on social media, where news feeds wind up functioning as a sort of news aggregator for each individual. A social-media user’s selection of friends and their history of clicks and reading time allow platforms to predict which types of stories the user is likely to read in the future. This is what Facebook does when it optimizes for “engagement.” This is, in some ways, just a reiteration of point 2 – intensified competition. Data-driven news feeds allow platforms to infinitely stratify the market and create niches the size of a single consumer.¹⁴ This optimization has been characterized by the Wall Street Journal and other news outlets as a needlessly sinister manipulation of its users,¹⁵ but it can be explained just as easily by competitive pressure: Facebook, too, needs to give users an experience that is engaging enough to keep them from switching to another activity or competitor.¹⁶

4. (4) Social pressure. Social media also breeds epistemic conformity within groups and subcultures. A user who sees her friends posting news stories or anecdotes will naturally feel some social pressure to stay willfully blind to facts or context that contradict the tenor and political valence of the conversation she is seeing among friends.¹⁷ In other words, social media will sometimes pose a tension between a user’s epistemic goals and her social ones, and the latter will sometimes win.

It is worth noting what is not on this list – the popular misdiagnoses. Algorithms do not override users’ preferences and push them toward more extreme content. Empirical evidence consistently finds that the users’ selection of friends and their responsive behavior, rather than algorithmic manipulation, explain what content is served and consumed.¹⁸ Nor are lightning-rod figures like Donald Trump, Alex Jones, and Tucker Carlson the ultimate causes of the current state of the news. They are symptoms and by-products of a news market that rewards true-but-misleading information. Finally, American free speech jurisprudence is also not a major contributing factor, as the problems described here are to a great extent global phenomena. As Gilad Abiri recently said at the Yale Free Expression Scholars Conference, “the epistemic divide is everywhere [around the world.] Fox News is not. And the First Amendment is not.”¹⁹

Thus, the nuisance of selective evidence gathering and true-but-misleading news is structural: It is generated easily in the digital information environment, and it is demanded by the listener and platform user in a hypercompetitive tournament for attention.

3.4 A New Human Experience: Every Bad Thing All at Once

My grandmother worked for the Food & Drug Administration shortly after it was created. Although she had a chemistry degree, most of her skills were underutilized and she spent her time inspecting for bug parts in canned food. When I was young, I asked my grandmother whether she was turned off of canned food since she knew how many bugs are accidentally included in them. She explained that it had the opposite effect – that she knows bug parts are rare and that in any case, they almost never cause any harm. I realized that the fear of eating bugs for her was similar to the fear of getting in a car accident for me. She saw bugs, but she saw many, many more cans. So she ate canned beans happily while I, haunted by the stories she told involving severed cockroach carcasses, approached every can with dread.

Consuming news on the internet puts us in this sort of state with respect to nearly every type of mishap, misfortune, and failing. As a result, the internet’s effect may be even greater than a linear progression in media competition would suggest on its own. Humans are hard-wired with high sensitivity to threats, and with heightened concern about small numbers of bad, unfamiliar outcomes.²⁰ The internet provides access to all of the bad, unfamiliar outcomes.

Humans are not good at putting bad news into proportional perspective when they do not have direct experience of the baseline or background risk.²¹ In the internet age, wisdom will require some means of acquiring that skill.

On this aspect of my formulation of the modern news problem, Martin Gurri’s book The Revolt of the Public has been exceedingly influential. Gurri explains that the high visibility given to every bureaucratic mistake or negative outcome has caused social-media users to lose trust in institutions and to demand a reckoning.²² Elites then fuel the fire by insisting that actually they do live up to superhuman standards rather than attempting to defend their performance based on realistic assessments: “The fiction of extraordinary ambition and mastery has persisted, without irony, in our political language.”²³ The large gap between the rhetoric of excellence and the selective but highly salient evidence of failure revs up the instinct of the public to tear down the establishment. This instinct gets filtered through political tribalism, of course, with the Republican base setting their sights on expert agencies while the Democratic base focuses on institutions like law enforcement. But both camps stumble on a similar lack of awareness about trend lines, proportions, counterfactuals, and the limits on performance that constrain every institution.

News organizations have failed to provide the sort of information that would contextualize news and opinions for some topics like police violence, crime, COVID risks, and elections. They have no economic incentive to do so. But even if they wanted to provide context, traditional newsgathering practices cannot keep up with the sort of data that would offer proportionality and nuance on every topic, let alone do so consistently. Likewise, consumers of news do not yet have the appetite and skills to digest this sort of content even if it were available.²⁴

This leaves us in a pretty dark place. And yet, against this bleak backdrop, I believe there is reason for optimism. Every shock to the communications environment, from writing to the printing press to broadcast, has come with a tumultuous period of confusion, conflict, and – eventually – a new equilibrium.²⁵ Those new equilibria have often put demands on culture and education that in retrospect seem impossible. Imagine living shortly after the printing press had been invented and observing a population with nearly universal illiteracy. If you said, “We really need to teach everyone to read so that, in a few centuries, everyone will have a job and social life that depends on the sort of knowledge transmission that can really only happen through text,” you would be the town loony.

What comes next are some recommendations from a town loony.

3.5 Predictions and Solutions (Grade Me in 200 Years, Please)

Free speech luminaries like Oliver Wendell Holmes used the scientific method as an analogy to First Amendment theory.²⁶ If everyone has a chance to propose a hypothesis, the best ideas, that have the closest relationship to reality, will win out. They will replicate more often when listeners test them. This process, even when it is working, is filled with error. Scientists generally understand this and tolerate the sort of errors that lead down a messy and indirect path toward progress.

The comparison between free speech and the scientific method is aspirational, of course, and even scientists will occasionally abandon their loyalty to the methods when political, social, and psychological factors predominate.²⁷ Nevertheless, the very fact that a growing proportion of the population – a larger one than ever before in history – work in fields that require training in science and statistics suggests that facility in statistical reasoning may become as widespread and commonplace as reading is today. And even if our work does not require it, the sheer ubiquity of data may cause news consumers to prefer a different sort of news: one that situates a particular event into a larger trend or distribution in order to make sense of it.

We should not be interested in rebuilding the sort of news institutions that were profitable and powerful in the twentieth century. It would be a fool’s errand to even attempt such a task, since consumers with democratized access to information about sensational events will not tolerate a gatekeeping organization that tries to control attention.²⁸ Cheap access to an ocean of information, such as that which we have now, calls for a different form of newsgathering: one that gives consumers the autonomy to choose which topics and phenomena to explore, but also provides information and incentives to pursue those inquiries in a manner that avoids exaggeration and sensationalism. Newsgathering of the future should be democratized, and it should also be sober.

To some extent, the major internet platforms have already created the means to democratize newsgathering by creating tools for users to actively (e.g., Google Search) or passively (e.g., Facebook’s Feed) engage with information that is most relevant to their interests. However, even these platforms, significant as they are, do not provide easy access to raw data or representative information, even to those who proactively want to find it. They do not provide proportionality at the micro level – that is, within a given topic of interest, they do not provide enough means to contextualize the information we see to understand whether the information is representative of real trends. For example, a user who wants to check their beliefs about the minimum wage and, as a first cut, wants to know whether the trend in creation of jobs in a particular state changed after the passage of a minimum-wage law would have a difficult time finding these figures. Try it yourself. In my case (searching for Arizona), the most relevant information I could find came in the form of highly mediated opinion pieces that use some evidence to corroborate their point of view, but not the sort of raw data I was looking for. Thus, despite the seismic shift in access to information that companies like Google have created, easy access to the right information is still lacking.

In terms of the sobriety of the news, internet intermediaries have done little to lower the temperature of debates or to incentivize more nuanced and proportionate reactions to events. Doing so would put the intermediary at a competitive disadvantage in the short run, and possibly in the medium and long run as well.

Thus, there is an opportunity and a need for government, academic, and nonprofit institutions to create better newsgathering tools that can interoperate with news organizations and eventually discipline them.

3.6 Tools for Sober, Self-Guided Newsgathering

A complex society cannot function without intermediaries and interpreters. But the intermediaries who win the competition for user trust will be picked by a public that, right now, is exceedingly skeptical and time-strapped. Intermediaries of the future must prioritize ease of use and tamp down resistance from political bias.

Consumers want something else, too: They want to win arguments, or at least feel like they have a chance of having a fair argument, with friends and family. This, too, should be taken into account in a responsible newsgathering model as well.

The most promising tools for renovating the newsgathering process are those that create frequent feedback loops so that beliefs are constantly tested and adjusted.²⁹ The news should use interactive or gamified elements to draw readers into sober, self-guided newsgathering practices. What follows is a nonexhaustive list of self-directed newsgathering mechanisms that have at least some empirical support for their value.

3.6.1 Confronting Assumptions

What proportion of U.S. residents are immigrants? And what proportion of those immigrants are undocumented immigrants?³⁰

While it is possible to have a productive conversation and debate about U.S. immigration policy without knowing the answers to those questions (as well as many others), the political beliefs that currently drive the terms of debate implicitly rely on an assumption about the answers to them. The belief that most Mexican-Americans entered the country illegally, for example, or that undocumented immigrants are a major source of job loss, might be undermined by the statistics.

Interactive news media can begin a session by asking readers basic questions like these related to a topic, and can also provide a user interface that crowdsources proposed intro questions from users. The New York Times already uses some gamified news quizzes along these lines that challenges readers to see how much they know about, for example, the human reproductive system as a gateway to better understanding news about the overturning of Roe v. Wade.³¹

Tools that guide a user to make their factual assumptions explicit (and to correct them, where they are wrong) are valuable for two reasons. First, they provide a baseline to contextualize news stories. Second, research on the phenomenon known as “the illusion of explanatory depth” suggests that this sort of exercise primes news consumers to be more cautious about their own expertise and less confident in their political convictions.³² Of course, the preparatory-quiz questions can be exploited to solidify factual understandings that help one side of a debate without solidifying the facts that are most useful to the other side of it, so the crafting and curation of the questions will require a credible mechanism for neutrality or input from the reader about what facts they think are most important in order to come to an opinion on the topic.

3.6.2 Defining Mind-Switching Facts

Consider your belief about whether access to charter schools is, on balance, good or bad for a community. Once you have your position in mind, do the following exercise:

Write out three facts (or sets of facts) any one of which, if true, would cause you to change your mind about this topic (assuming everything else stays the same).

This exercise is useful for three reasons: First, it focuses the user’s attention on the assumptions that are necessary for sustaining their belief, and therefore points to subsequent questions that would help them either corroborate or abandon those beliefs. Second, it pre-commits the user to the adage “If the facts change, I change my mind. Do not you?” If, down the road, credible reporting finds that one of the mind-switching conditions is met, there would be a cost on a user (in cognitive dissonance, at least, if not reputation) who stubbornly insists on keeping their position anyways. Third, the exercise will almost always lead the user to think about the big picture rather than anecdotes. In other words, a person who is generally against charter schools will not say “I’ll change my mind if there is a single example of an underprivileged child attending a charter school and then doing well in life,” nor will he say “I will change my mind if there is an example of a public teachers union that helps a bad teacher keep his job.” Focusing on the big picture will allow the user to tell a debate partner to not bother with the anecdotes because anecdotes do not require a concession. At the same time, the user will become aware that for the same reasons, an example of a single poorly run charter school with bad outcomes will not move the needle for a debate partner who is generally in favor of charter-school programs.

3.6.2.1 Graded Predictions and Wagers

What probability would you give each of the following events?:

• • Democrats will win the presidency and will win or retain majorities in both the U.S. House and Senate in November 2024: ___%

• • Inflation in the U.S. will average under 3% in 2023 per the PCE price index: ___%

• • China’s GDP growth will be above 5% for the year 2023: ___%

• • 20% of U.S. adults will receive a vaccination or booster against COVID at some point during the calendar year 2024: ___%

• • The WHO will designate another virus or variant of concern by the end of 2024: ___%

• • A peace agreement between Ukraine and Russia will be in place by the end of 2024: ___%

Many blogs and news outlets are designing annual-predictions lists of this sort. Most of the categories here, for example, were borrowed from a list published on Vox.³³ Grading, which can be done by the user or by the news venue, is necessarily crude since the nonoccurrence of an event that a user assigned a high probability to is not necessarily an indication of error. Short lists like this one are typically graded by converting the predictions to binary predictions (treating predictions above 50% as a 1 and below 50% as 0) and then comparing them to outcomes. Longer lists can be graded by dividing predictions into tranches (e.g., 0–20%, 21–40%, 41–60%, 61–80%, and 81–100%) and then evaluating whether the items in each tranche occurred close to (10%, 30%, 50%, 70%, and 90%) of the time, respectively.³⁴

The benefits of a periodic prediction exercise are similar to the benefits of the “confronting assumptions” tool because users can see that some beliefs – previously strongly held ones – turned out to be unfounded. But also, the exercise unearths for users the need to foster dispassion and to think in longer time horizons.

Closely related to predictions are wagers, where individuals place bets about what is true or what will happen. Prediction markets like PredictIt allow individuals to place bets on certain social and political predictions. Their predictions outperform many pollster and pundit predictions because they aggregate knowledge across multiple people who have skin in the game.³⁵ That makes their reported odds a good source of aggregated news in and of itself. But participating in the prediction markets can create feedback loops that train users to become better at prediction by aligning their beliefs with the most valid evidence. With appropriate limits on how large a wager can be or how much any person can expose themselves to financial risk, prediction markets may be a form of betting that governments should actively encourage.

In addition to centralized prediction markets, which are already well on their way to becoming established institutions, wagers may have a role to play in decentralized contexts as well. For example, imagine if in the first months of the COVID pandemic, an X (formerly Twitter) user could have responded to a tweet that said “COVID is not any more deadly than the flu” by pressing a “friendly wager” button. This would allow the user to define terms for a counterprediction (e.g., “By the end of the year 2020, the CDC will attribute more deaths to COVID than the average annual death count from flu from 2014–2019” and with a resolution date set for January 15, 2021). If the author of the original tweet accepted the friendly wager (either for a small amount of money or simply for public bragging rights), the results would be resolved on January 15. If the author of the original tweet provides an alternative wager (e.g., one that offers similar terms but with a different source of authority or a different resolution date), the wagerer will have the opportunity to take or reject the alternative. If the author neither accepts nor counters the wager proposal, the fact that there was a wager left hanging would be publicly visible.

This style of decentralized wager runs some risks. It could amp up the sort of black-and-white thinking and humiliation-style argumentation that already pervades online culture. On the other hand, as David Brin has argued, the impulse for machismo and shouting down “enemies” shows no sign of receding, and even-keeled fact-checking exercises have been futile. (Indeed, fact-checkers are often another target of ridicule and contempt.³⁶) Wagering helps turn aggressive culture against itself and gives a way for “fact people” to win on an ideologue’s own turf.³⁷

3.6.2.2 Simulations

If you visit Shinyapps.io, you can find a COVID policy simulator that allows users to select a geographic area, choose a COVID variant, select a vaccine effectiveness, and then select from four interventions (e.g., stay-at-home orders) for variable time periods. The simulator will then provide estimates of the trends in deaths, cases, hospital beds available, and several other COVID-related health outcomes. Unfortunately, the simulator does not provide estimates of the economic and health impact of the selected interventions, and does not provide an option to alter the creator’s choice of R-value or type of behavioral precautions. This example shows that the bias of a simulator’s design team can easily diminish the simulator’s potential to be a convincing teaching tool. But if simulators were a major part of news consumption, different organizations and groups would compete to create the best – the most widely accepted – simulator, and that one would have to provide a more complete set of inputs, rules, and predicted outputs.

Interactive media that allow the user to set certain starting facts and define the rules of cause-and-effect can discover that even their own beliefs lead to implications that are different from what they had assumed. For example, in the case of the COVID precautions game, users who play around with the simulator will discover through trial and error that there is an inescapable trade-off between costs of COVID and costs of the precautions.³⁸ Players (and governments) can do worse than the pareto frontier, but they cannot do better. This is a valuable realization because it injects realism into the meaning of government success and failure. That is, neither a decline in GDP nor a high COVID death count are evidence, in and of themselves, that the government has been incompetent.

3.7 Data Repositories and Digital Almanacs: An Infrastructure for Sober and Self-Guided Newsgathering

Journalism during the industrial era typically relied on reporters to collect facts and synthesize them into a digestible story or account. But it is not necessary, and in fact not ideal, to have the same institution perform both of these tasks. To the contrary, institutions set up to collect information could be more trustworthy if they were independent from the individuals and groups that synthesize the information into news items.

The tools I have described above facilitate a democratic form of newsgathering of a particular sort – the kind that synthesizes and contextualizes information from a large number of events. Generating the raw data for these tools is an entirely different sort of newsgathering – the building and maintaining of data repositories. All of the synthesizing tools described above will depend on data sources that are trusted by a large majority of individuals to be acceptably accurate.

Thus, while existing media organizations should supplement the news reporting that they offer with the interactive tools I have described, it will be increasingly important to create new institutions that simply collect and collate data about nearly every topic. These data repositories can also publish “almanacs” that present the data through a series of tables and graphs that are most likely to be of interest to users. They can also create query systems or user interfaces that provide access to deidentified microdata.

Some such organizations exist already. The Census Bureau, the Bureau of Justice Statistics, and the Bureau of Labor Statistics all serve the core purpose of providing multiuse data that can shed light on a wide variety of questions, and they provide almanacs on various topics. Nongovernment repositories, such as NORC or Our World in Data, also provide models for the sorts of data resources that will be necessary to encourage and satisfy a statistically literate population. Google and other for-profit companies occasionally enable public access to some data too.³⁹ But extant organizations offering public access to data are quite limited in several ways. First, compared to the richness of data that large corporations and the government have access to, they are poor in quality. Attempts to make them more rich and more accessible are mired in controversy around the potential risk that people described by the data may be reidentified or harmed. The Census Bureau, for example, currently takes a zero-tolerance approach to these risks, and as a result sacrifices a lot of public benefit that could result from greater access to Census statistical data.⁴⁰ To capture the value of pooled data, data repositories need to be encouraged to use a combination of technical and legal protections to keep risk low, and policymakers and the public need to accept some risk in exchange for the benefits of a data commons.

Another problem is a lack of trust in data repositories that are in fact trustworthy.⁴¹ While federal statistical agencies and large research-data aggregators have not yet been doused in the cynical acid that has scarred many other institutions, they could be once they are used to refute a major talking point by Team Red or Team Blue. However, this may be avoidable if the data repository is expansive enough to contain data that support statistics that both sides of the spectrum would want to cite.⁴² Neither side will want to tarnish a data source that could help them score points in the next argument. Also, in theory, accusations about the unreliability or corruption of a data source could be subjected to independent audits by a source that most individuals trust (including crowd-sourcing).⁴³

3.8 If You Build It, Will Anyone Come?

I confess this chapter has a contradiction. I started by explaining that traditional news media and internet platforms serve sensational, nonrepresentative information because people are not interested in sober, representative news. If this is so, why would I expect anybody to use the newsgathering and sense-making tools I’ve described? Am I not fighting against human nature?

I have three tentative responses, and they may all be wrong: First, some of the tools (like wagers) are designed to tap into the rhetorical food fight and steer the combatants – us, basically – towards a more fact-based battle.

Second, an untapped demand for these newsgathering tools may arise if the tools were easier to use and free of charge. It may be that these sorts of resources do not exist because they are expensive to build and maintain, and cannot be expected to capture the benefits. After all, a data repository loses a lot of its value as a tool for public discourse if it requires each user to pay a subscription cost, because then those users cannot direct others to the resource for verification. In other words, the new newsgathering tools I’ve described here may have the economic qualities of a classic public good, and will therefore need money and energy from the government or from foundations in order to get off the ground.

Third, there may be something to the controversial theory that the increased supply of a product can cause an increase in the demand for it: If democratic, sober newsgathering is made available, people may over time develop a taste for it and value it highly enough to actually pay for it even if they would not do so right now.

3.9 Conclusion

The New York Times recently won a Pulitzer Prize for its reporting on “a disturbing pattern of fatal traffic stops by police.”⁴⁴ The anchor story for the series described the last moments of fatal encounters with police during traffic stops. It then explained that “over the past five years, a New York Times investigation found, police officers have killed more than 400 drivers or passengers who were not wielding a gun or a knife” during pursuits that began with routine traffic stops.⁴⁵ More than 300 of these involved stops that progressed to a suspect flight or car chase.⁴⁶ The article rejects the claim that police officers involved in these traffic stops had any reason to fear risk to their own life or safety. “Of the roughly 280 officers killed on duty since late 2016, about 60 died – mostly by gunfire – at the hands of motorists who had been pulled over…. In fact, because the police pull over so many cars and trucks – tens of millions each year – an officer’s chances of being killed at any vehicle stop are less than 1 in 3.6 million” – a risk that the article goes on to call “statistically negligible.”⁴⁷

Personally, I agree that the risk of officer safety is small enough that in a typical traffic-stop scenario, the police should harbor no concern for their personal safety. Police should not be trained to think that every traffic stop is a risky encounter. But news consumers who watch Fox will notice that the risk to unarmed drivers is as “statistically negligible” as the risk to armed police if that term is applied consistently. After all, the numbers of unarmed drivers killed by police are within the same order of magnitude as the numbers of police killed by drivers.⁴⁸ Thus, the implication of the article – that every traffic stop is a vector for danger and police abuse – is also misleading. The credibility of the paper (and the Pulitzer for that matter) will remain low among the Fox audience as long as news stories appear to be aggregated in a way designed to fit a particular worldview and to avoid information that could undermine that view. And it goes without saying, I suspect, that Fox News and other news media catering to a conservative viewpoint have the same flaw.

Newsgathering tools developed today should look nothing like the tools of the past. News in the twentieth century was riddled with true-but-unrepresentative stories that provided fertile ground for paranoia, distrust, nihilism, and political dogma. These problems metastasized on the internet, but the flaw is foundational. That flaw is the over-reliance on stories that provide a misleading sense of real trends.

In an information-scarce environment, every true anecdote about a tragedy or mistake was helpful for assessing risk and making plans. Even noisy information was better than the alternative. But in an information-rich environment, when nearly every possible claim has some true-but-misrepresentative examples as support, the ultimate objective of knowledge must be separated from the anecdote-driven facts that have constituted “the news” for centuries. Fact-checking a story is a necessary but insufficient requirement for a news system that will help the public converge on accuracy. The twenty-first century and beyond will need news institutions that give users autonomy in their explorations of the news and the context to form beliefs and argue with each other in a statistically valid manner.

4 The New Gatekeepers? Social Media and the “Search for Truth”

Ashutosh Bhagwat

*

4.1 Introduction

What is the role of “trusted communicators” in disseminating knowledge to the public? The trigger for this question, which is the topic of this set of chapters, is the widely shared belief that one of the most notable, and noted, consequences of the spread of the internet and social media is the collapse of sources of information that are broadly trusted across society, because the internet has eliminated the power of the traditional gatekeepers¹ who identified and created trusted communicators for the public. Many commentators argue this is a troubling development because trusted communicators are needed for our society to create and maintain a common base of facts, accepted by the broader public, that is essential to a system of democratic self-governance. Absent such a common base or factual consensus, democratic politics will tend to collapse into polarized camps that cannot accept the possibility of electoral defeat (as they arguably have in recent years in the United States). I aim here to examine recent proposals to resurrect a set of trusted communicators and the gatekeeper function, and to critique them from both practical and theoretical perspectives. But before we can discuss possible “solutions” to the lack of gatekeepers and trusted communicators in the modern era, it is important to understand how those functions arose in the pre-internet era.

4.2 The Old Gatekeepers

Underlying the concept of trusted communicators is the question of “Who to trust?” But underlying that question is yet another, more foundational one: “Who decides who to trust?” Ultimately, of course, each person must decide for themselves who to trust. But for a societal consensus on this question to emerge, some common source of authority must exist. If there is one lesson that can be drawn from the modern era of social media, it is that robust, public discourse alone cannot be expected to generate an automatic consensus on who can be trusted (or on trustworthy facts). The quest for trusted communicators, then, is in truth a quest for authoritative sources of trust – which is to say, a quest for authority. In the internet era, centralized control over information flows has fragmented and, consequently, so too has the authority to identify trusted communicators. Before seeking to recreate such authority, however, it is important to understand how and why such authoritative sources of information emerged in the pre-internet era, when modern expectations about trust and a factual consensus developed – which is to say, during the first six or seven decades of the twentieth century.

Who were the creators and designators of trust during this period? In short, it was the institutional media. Moreover, through most of the twentieth century, institutional media acted as the gatekeepers of knowledge and news as well. Just who constituted the institutional media gatekeepers, however, changed over time. During the first part of the century, perhaps the crucial period in the development of gatekeepers and trusted communicators, it was major daily newspapers, especially those associated with William Randolph Hearst and Joseph Pulitzer, as well as Adolph Ochs’s New York Times. As we shall discuss in more detail, in many ways it was cultural clashes between Hearst and Pulitzer on one side and Ochs on the other that generated the dominant gatekeeper/trusted-communicator model.²

After World War I, while newspapers certainly maintained their importance, commercial radio broadcasters emerged as another crucial – and soon more popularly accessible – media institution. The first commercial radio station began broadcasting in 1920 in Pittsburgh, Pennsylvania. Four years later, 600 commercial radio stations were broadcasting in the United States. In 1926, the first national radio network, NBC, was formed.³ As evidenced by President Franklin Delano Roosevelt’s fireside chats during the Great Depression, radio quickly emerged as a widely available, popular means for institutional media – and those trusted communicators to whom they provided airtime, such as FDR – to reach mass public audiences.

Finally, around the mid-century, at the beginning of what many considered the Golden Age of the institutional media, television broadcasters began to complement and eventually supplant radio (and newspapers) as the key institutional media. The Federal Communications Commission (FCC) first authorized commercial television broadcasts in 1941, but because of World War II, commercial television broadcasts did not begin in earnest until 1947.⁴ And then the industry exploded. From 1946 to 1951, the number of television sets in use rose from 6,000 to 12 million. By 1955, half of American households owned television sets.⁵ Moreover, during the 1940s, the three iconic national television networks – the National Broadcasting Company (NBC) (evolved from the first radio network), the Columbia Broadcasting System (CBS) (evolved from a competing radio network), and the American Broadcasting Company (ABC) (spun off from NBC by order of the FCC) – had also emerged.⁶ Finally, with the creation in 1956 of NBC’s The Huntley-Brinkley Report (the first television news broadcast), television’s dominance as the primary source of news for most Americans (and the concomitant decline in the influence of newspapers) began.⁷

The rise of broadcasting also led to the rise of the quintessential trusted communicators of this era, the network reporter and, later, anchorman. Coincidentally, the figures that epitomize both roles were affiliated with CBS. Edward R. Murrow first rose to prominence during the radio era through his revolutionary reporting on Hitler’s Anschluss of Austria in 1938, and he became a household name by reporting live from London during the London Blitz in the early 1940s. He then moved to television and demonstrated continuing enormous influence through broadcasts, including a pathbreaking one in 1954 criticizing Senator Joseph McCarthy’s witch-hunt against Communists, which contributed to McCarthy’s downfall.⁸

The other, even more important trusted communicator of the broadcast era was of course Walter Cronkite. Cronkite first became prominent (among other things, as the first designated “anchorman”) during CBS’s coverage of the 1952 presidential nominating conventions. But it was with the launch of The CBS Evening News with Walter Cronkite in 1962 that Cronkite’s central role as the trusted communicator emerged.⁹ Cronkite’s influence was most famously demonstrated when his critical coverage of the Vietnam War in 1968 led to an important swing in public opinion against the war and contributed to President Lyndon Johnson’s decision not to run for re-election. Cronkite’s status is illustrated by the fact that a 1972 poll named him “the most trusted man in America.”¹⁰ The institutional media and its key figures, epitomized by Murrow and Cronkite, were thus the trusted communicators of this era.

Even though their technology and reach varied, the gatekeepers/trusted communicators described above shared some basic characteristics. First, they were relatively scarce. The economics of newspapers meant that during most of this period, metropolitan areas could only support one or a handful of newspapers.¹¹ With respect to the broadcast medium, the number of radio and television stations in any particular locality that actually produced original content (as opposed to playing music or broadcasting reruns of sitcoms) was limited by the same economic factors (essentially economies of scale) as newspapers. In addition, the fact that the number of possible broadcast frequencies was physically limited – electromagnetic spectrum, as the Supreme Court put it, is a “scarce resource”¹² – necessarily limited the number of outlets in any particular market. Indeed, in practice, the broadcast-television market, especially in its role as disseminator of national news and general knowledge, was completely dominated by the three major networks (NBC, CBS, and ABC) until the launch of the Fox network in 1986 – and that only added one additional player. This situation only changed with the spread of cable television in the 1980s (and thus the end of spectrum scarcity because of the large channel capacity of cable systems), resulting in the launch of cable-only CNN in 1980 and then of Fox News in 1996.

The second shared characteristic between different types of gatekeepers and trusted communicators was that these gatekeepers sought to construct an “objective,” nonpartisan image. The roots of this development, which has become an essential element of modern journalistic ethics,¹³ can be found in the conflict between the sensationalist journalism championed by newspaper tycoons William Randolph Hearst and Joseph Pulitzer, and the “counteractivist,” nonpartisan model of Adolph S. Och’s New York Times (which he purchased in 1896¹⁴). While the Hearst/Pulitzer model was dominant in the late nineteenth and early twentieth centuries, Ochs’s commitment “to give the news impartially, without fear or favor, regardless of party, sect, or interests involved” – a commitment Ochs announced on his first day of ownership of the Times¹⁵ – eventually won out.¹⁶ By 1920, this norm of objectivity¹⁷ (which had previously gone by the name of “realism”¹⁸) was becoming the dominant paradigm of journalism, as reflected by the fact that the Society of Professional Journalists’ first Code of Ethics, adopted in 1926, calls for journalistic “impartiality,” meaning that “[n]ews reports should be free from opinion or bias of any kind.”¹⁹

It is important to note, however, that this goal of objectivity was a historical anomaly. Prior to the early twentieth century, newspapers and publishers did not pretend to be objective – to the contrary, they were explicitly partisan. Important historical examples include The Aurora, the newspaper edited by Benjamin Franklin Bache (Ben Franklin’s grandson) in the late 1790s, which was tied to the Democratic Republican party of Jefferson and Madison (Bache and other Jeffersonian newspaper editors were prosecuted by the Adams Administration for sedition),²⁰ and Horace Greeley’s New York Tribune, which was closely associated with the Republican Party before and during the Civil War.²¹ Needless to say, these newspapers were not viewed as trustworthy by their political opponents (as demonstrated by Bache’s prosecution). After World War I, however, economic pressures led to the consolidation of newspapers and a notable decrease in the number of daily newspapers – as epitomized by the merger in 1924 of the old rivals the New York Herald (which, though allegedly nonpartisan, often supported Democratic Party policies during the Civil War) and Greeley’s New York Tribune.²² As a consequence, newspapers began to seek broader (and so bipartisan) audiences, which required them to abandon their partisan affiliations. Not coincidentally, journalistic ethics during this period also embraced objectivity as a desirable norm, as noted above.

The trend toward objectivity continued as newspapers were gradually supplanted by broadcast: first radio, then (even more dominantly) television. For television broadcasting in particular, the push for objectivity was driven by similar economic motivations to maximize audience share because of the effective monopoly on national news held by the three national networks. In addition, the FCC’s Fairness Doctrine, in effect from 1949 to 1987, strongly incentivized objectivity on the part of both radio and television broadcasters by requiring them to present opposing views on public issues, and by creating a right of reply on the part of individuals subject to a “personal attack” during broadcast programming.²³ Facially objective news coverage avoided triggering either requirement.²⁴

This performed objectivity, playing out in a highly concentrated broadcast market, enabled a small set of individuals and institutions to emerge as “trusted communicators” in the eyes of a broad swath of the American public. We might call this the Murrow?Cronkite Effect. Furthermore, this institutional structure permitted trusted media figures to extend public trust to elite, designated “experts” outside the media by giving those experts the gatekeepers’ imprimatur in the form of interviews and airtime (as an example, consider Edward R. Murrow’s famous 1955 interview of Jonas Salk, the inventor of the polio vaccine²⁵). As a consequence, during this “golden era,” most of American society obtained news and knowledge from a few common and generally trusted sources.

What engendered this broad-based trust,²⁶ which in today’s world seems inconceivable? I would argue that the answer, in short, was a lack of alternative voices. The public trusted media gatekeepers because they had no choice – there were no significant opposing voices to question or undermine that trust because of concentration within the institutional media. It was precisely these factors – concentration and lack of choice – that made the institutional media, especially the three television networks, gatekeepers who exercised effective control over the flow of information into almost every American household. Indeed, it is hard to imagine how a media institution could play gatekeeper without this kind of option scarcity.

Furthermore, for economic reasons discussed above, these gatekeepers adopted an “objectivity” that overwhelmingly tended to reflect the views of the political center in order to maximize their potential audience. As a consequence, there were simply no opportunities for the public to question consensus facts, or to become aware of what the institutional media was not telling them (such as President Kennedy’s philandering, or the CIA’s secret coups during President Eisenhower’s administration). I am not insinuating that Murrow and Cronkite did not earn the public’s trust – I have no doubt that they did, through ethical and insightful journalism. But that trust ultimately depended on a lack of choice or alternative, nonmainstream voices.

4.3 The Collapse of the Old Gatekeepers

Eventually, of course, this system of institutional concentration and consensus collapsed. The first developments along these lines are probably traceable to the FCC’s repeal of the Fairness Doctrine in 1987,²⁷ which in turn led to the rise of right-wing talk radio, a medium which did not pretend or aspire to objectivity.²⁸ In addition, the explosion of the cable-television medium during the 1980s ended the era of television concentration because television no longer required scarce spectrum,²⁹ which in turn permitted the launch of the overtly partisan Fox News in 1996,³⁰ at the very dawn of the internet era. But while these developments began undermining the era of (supposed) media objectivity and the media’s gatekeeper function, there can be little doubt that the internet, and especially the rise of social media, put a final end to the institutional media’s control over public discourse. These, however, are relatively recent events. X was founded in 2006,³¹ the same year that Facebook became available to the general public.³² But at first, these were relatively obscure platforms. It was not until the availability and widespread adoption of smartphones – the first iPhone was not released until 2007,³³ and smartphones did not come into common use for several years after then – that social media became mobile and easily usable, leading to its exponential growth.³⁴

By the 2010s, the importance of social media in displacing traditional media as the primary engine of public discourse was evident – so much so that by 2017, that most hidebound of American institutions, the United States Supreme Court, recognized social media as “the most important places … for the exchange of views.”³⁵ Every citizen became a potential publisher and people suddenly possessed a plethora of choices regarding what voices to pay attention to, ending once and for all the gatekeeper function of the institutional media. And for the same reason, the range of opinions expressed publicly became massively more diverse, ending the media’s role in creating consensus around a common set of facts and beliefs. The Murrow–Cronkite Effect had vanished.

With the collapse of the gatekeeper function also came the collapse of trusted communicators. There are no Edward Murrows or Walter Cronkites in the social-media/Fox News era; instead we have Tucker Carlsons and Robert F. Kennedy, Jr.s (Mr. Kennedy, the son of Bobby Kennedy, is an active anti-vaccine propogandist³⁶). This development is frankly unsurprising if one accepts, as I argued above, that much of the public’s trust during the Murrow–Cronkite era was a product of the institutional media’s gatekeeper function. No more gatekeepers, no more trust.

To be fair, the elimination of gatekeepers is not the only development that has contributed to the loss of trusted communicators. Most obviously, political polarization has also played an important role. As many people have drifted into more radicalized political positions, they inevitably cease to trust the traditional trusted communicators of the center (or, more honestly, the center-left) that made up the institutional media. Individuals whose views sit in the far-right or far-left have no reason to trust institutional speakers such as The New York Times or CNN. But here, too, the loss of gatekeepers plays an important causal role. During the peak of the gatekeeper era, most people had no access or exposure to radical voices unless they actively sought them out – and such voices were, as a result, quite rare. Today, social media and other internet forums provide easy access to a vast range of viewpoints, permitting individuals to trust whomever they please – usually voices that reinforce and intensify their existing views. Of course, there have always been radical movements and conspiracy theories, but the rapid spread and sheer scope of the QAnon conspiracy theory, for example, would not have been possible in the pre-internet era; its ideas would never have gotten past the gatekeepers.

4.4 The New Gatekeepers?

The loss of faith in institutional elites, including the institutional media, and the resulting collapse of consensus has had profound consequences. One impact has been to further exacerbate political polarization – though it should be noted that the internet did not create modern polarization, which can be traced back at least to Newt Gingrich’s 1994 “Contract with America” and the bloody political battles of the 1990s. More fundamentally, however, the loss of gatekeepers and trusted communicators has either threatened or eliminated the possibility of an ideology-free consensus on even basic facts. For individual media consumers, ideology seems to play a heavy role in shaping factual perceptions, regardless of objective reality. As an example, consider the fact that in 2016, 72 percent of Republicans expressed doubts about Obama’s birthplace, despite his Hawaiian birth certificate being in the public record.³⁷

This loss of what one might call “consensus reality” has created an intellectual atmosphere of existential angst in some elements of American society. This is most evident within the mainstream media (perhaps unsurprisingly), but it is also an important part of the dialogue in politics (mainly on the left) and in academia (almost definitionally the left). To be clear, there is no question that a lack of factual consensus has had negative social consequences. It has made compromise – or even dialogue – across partisan lines far more difficult. And as the United States’ experience with COVID-19 demonstrates, it can lead to deeply irrational policy choices (both on the left and right, to be clear). But the intellectual angst that I describe is often expressed in an existential manner, as fear for the very survival of our society (caused by such factors as the false belief among many Republicans, fostered by President Trump and elements of the conservative media, that the 2020 presidential election was stolen from Trump³⁸).

The practical ways in which these elements of society have operationalized their angst has been to place enormous amounts of pressure on social-media platforms such as Facebook, X, and YouTube to actively block (among other things) online falsehoods in order to recreate a consensus reality. Not a day goes by, seemingly, without another thundering op-ed published in The New York Times³⁹ or The Washington Post⁴⁰ decrying misinformation and “fake news” and blaming social-media platforms for failing to suppress it. Meanwhile, Democratic members of Congress such as Amy Klobuchar and Elizabeth Warren have been pushing aggressively for legislation that would force social media to suppress mis- and disinformation.⁴¹

In short, these critics want social-media platforms to become the new gatekeepers, replicating the role of the twentieth-century institutional media in deciding what information and sources of information the public should be exposed to. Their logic appears to be that, because a small number of social-media platforms now host such a large portion of public discourse, the owners and controllers of those platforms should therefore ensure that the flow of information to individuals is accurate and “clean,” just as the twentieth-century institutional media did when it held a similar bottleneck position. And in fact, given their dominant market positions, the “big four” owners of the key social-media platforms on which political discourse occurs – essentially Meta (which owns Facebook and Instagram), X, Alphabet (formerly Google, which owns YouTube), and ByteDance (which owns TikTok) – might well jointly possess the power to shape discourse akin to the three broadcast television networks of the twentieth century. But should they?⁴²

I have argued elsewhere that any legal requirements forcing internet platforms to suppress “fake news” would almost certainly violate the First Amendment.⁴³ The question I am raising here is whether, leaving aside the (dubious) constitutionality of regulation, it is even a good idea for social-media firms to act as gatekeepers (and for critics to push them to do so). In other words, should social-media firms be in the business of screening out false information and determining who is and is not a trusted communicator? Leaving aside the question of whether this is even possible (does anyone believe that Mark Zuckerberg can replace Walter Cronkite as “the most trusted man in America”?), I believe that they should not.

There are several reasons why social-media firms are ill-suited to be effective gatekeepers (or, as Mark Zuckerberg would have it, “arbiters of truth”⁴⁴). First and foremost, they have no economic incentives to do so. The traditional institutional media emphasized their objectivity and sought to develop reputations as trusted gatekeepers because it was in their economic interest to do so. Objectivity and trust increased viewership and market share. The same is not true with social media. Social-media algorithms emphasize relevance, not truth. That is what increases engagement, and so profits. Asking for-profit companies to take on roles that they have no economic incentive to adopt strikes me as both dubious policy and likely futile.

Second, social-media firms have absolutely no expertise or training that would enable them to be either effective gatekeepers or effective identifiers of trusted communicators. As a practical matter, while social-media algorithms are quite effective at sorting by relevance and interest, I am doubtful that they can be designed to identify “truth” or its opposite, given the tenuous and disputed nature of truth. More fundamentally, the people who work for the large tech firms are unlikely to be effective at the gatekeeper function. They are, after all, software engineers, not journalists or trained experts on subject matters such as science, history, or economics, and it seems unlikely, given the culture of Silicon Valley, that they will become so. Training the Mark Zuckerbergs of the world to be journalists is likely to be about as successful as it would have been to train Walter Cronkite to code. Furthermore, social-media platforms do not themselves generate content, unlike many traditional experts (though those experts, as noted below, have themselves had a spotty record in identifying “truth”), which significantly reduces the incentives for these firms to develop serious in-house expertise (or for highly qualified experts to want to work for them – fact-checking is boring compared to content creation). Moreover, recent history suggests that when social-media firms do rely on “expert” elites to identify misinformation, the results can be dicey – as illustrated by the fiascos of labeling the lab-leak theory of COVID’s origins as misinformation,⁴⁵ or the decision to suppress a negative story about Hunter Biden on the eve of the 2020 presidential election.⁴⁶ Indeed, social-media critics are notably vague about how exactly social-media firms are to identify “truth” (or its opposite, misinformation) going forward … other than, that is, strongly suggesting that misinformation is whatever they themselves – the political and media elites – deem it to be.

Finally, I would question whether any gatekeepers of information and/or “trusted communicators” are ultimately beneficial to society or consistent with principles of free expression. First, it is important to acknowledge that truth, especially ideologically tinged truth, is a slippery thing.⁴⁷ While I do not deny the existence of objective facts (e.g., COVID-19 is real, and vaccines do work and do not cause autism), that sort of objectivity falls apart very soon after one gets beyond simple, provable facts. Certainly, COVID-19 is a real and dangerous disease, but where did it originate? Maybe a lab in Wuhan, maybe not – we may never know. Was closing primary schools for lengthy periods of time necessary to combat the spread of COVID-19? Teachers and parents may have different answers. Is it necessary or wise to vaccinate young children against COVID-19, given their low risk of severe illness? The expert-provided answers to these questions are, in truth, guesswork or opinions (albeit informed ones) dressed up as objective fact (or “science”). Should disagreement with these experts be suppressed or labeled as misinformation?

The more fundamental question, once we get beyond a very narrow range of objective facts, is whether gatekeepers and deference to designated “experts” (i.e., trusted communicators) really offer the best way to identify “truth” and, conversely, misinformation. Those who favor gatekeepers, including social-media gatekeepers, assume that gatekeepers and experts are necessary to hold back the tide of fake news. But there is a deep tension between this institutional approach and basic theories of free speech, as most famously encapsulated by Justice Oliver Wendell Holmes’s foundational metaphor of the “marketplace of ideas”: “that the best test of truth is the power of the thought to get itself accepted in the competition of the market.”⁴⁸ Nor is it consistent with Justice Louis Brandeis’s equally fundamental adage that, when faced with false or dangerous speech, “the remedy to be applied is more speech, not enforced silence.”⁴⁹

Both Holmes’s and Brandeis’s theories of free speech, while differing in details, are premised on the assumption that citizens should be permitted to freely engage in political debate, to the point even of advocating lawless behavior. This is because, according to Holmes, only then can truth emerge, and, according to Brandeis only then can citizens fully engage in our democracy. The concept of gatekeepers is simply inconsistent with both these visions. Gatekeepers are anathema to competition, and they are also quintessential silencers rather than enablers of “more speech.”

4.5 Conclusion

In short, perhaps the collapse of gatekeepers and trusted communicators is not such a terrible thing after all. None of this is to assert that the truth will necessarily emerge from the competition of the market. Markets are often flawed, and even though the internet and social media have removed the barriers to entry that plagued twentieth-century public discourse, there are other problems, often rooted in our political polarization, that continue to interfere with the free exchange of ideas – an obvious example being social media’s tendency to create speech silos. Nor is it to claim that citizens, given the opportunity, will engage in honest and civil democratic deliberation. Human nature being what it is (and the desire for ideological self-reinforcement being what it is), we know today that Holmes’s and Brandeis’s shared optimism about the results of open discourse was probably not justified. But the gatekeeper solution, whereby a handful of elite actors control public discourse, is not consistent with either principles of free expression or the role of citizens in our democracy. Instead of trying to recreate a bygone (and, frankly, deeply flawed) era, perhaps we should be thinking about how to reinvigorate a marketplace of ideas and encourage genuine democratic deliberation that both surmount political polarization. How we might attempt to do so is beyond the reach of this chapter,⁵⁰ but such an effort, rather than creating new gatekeepers, seems to me the best hope for curing the ills of our public discourse and of our democracy.

5 Beyond the Watchdog Using Law to Build Trust in the Press

Erin C. Carroll

*

5.1 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.”¹

Williams’s assessment was not entirely wrong. Polling data from 1971 confirmed that a dismal 18 percent of Americans had a “great deal of confidence” in the press.²

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.”³ 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.⁴

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.”⁵ 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.”⁶ 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 by-product.

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 1970s, it 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.⁷ Greater public trust in the press could be a by-product.

5.2 Trust, the Watchdog Press, and the Supreme Court: A Very Brief History

To the extent that something as intangible as trust can be measured, pollsters have tried to do so. For at least sixty years, they have asked American citizens to rate the strength of their trust in the mass media, including newspapers, TV, and radio.⁸ That trust was at a nadir in 1971 when the Los Angeles Times’s Nick Williams was expressing alarm.⁹ Yet, in the next handful of years, trust soared. By 1976, in a Gallup poll, 72 percent of Americans expressed a “great deal” or “a fair amount” of trust in the media to report “the news fully, accurately and fairly.”¹⁰ This was a high point; in the nearly fifty years since, Gallup has recorded a steady decline in this trust. It dipped to 32 percent in 2016 – the lowest number on record for the poll (which began in 1972).¹¹ It has hovered around this level ever since.¹²

What shifted? Trying to pinpoint causes for the deterioration of trust is difficult; they are numerous and intertwined. One especially tempting explanation – blaming the internet and social media – is simplistic and wrong-headed. Trust was declining long before the internet was widely used.

At least a few threads can be pulled from the tangle of possibilities and identified with some confidence. First, Americans’ declining trust in the press (in the late 1960s and today) came at times of national upheaval and uncertainty. In the 1960s this included the Vietnam War, a racial reckoning, and high-profile assassinations. Today, we face a racial reckoning anew, intense political polarization, growing wealth inequality, global democratic regression, and a pandemic. Second, both deep dips in press trust track the public’s declining trust in institutions generally.¹³

Beyond social, economic, and political conditions, the press shares in the blame. As Kenneth Newton and Pippa Norris’s “institutional performance model” holds, the public’s trust in institutions falters when those institutions perform poorly.¹⁴ There is plenty we could critique about the press’s performance both in the 1960s and today. This could include reporter bias, a lack of diversity, and too thin a wall between the business and journalism sides of many news organizations.

But if the press is partially responsible for the southward turn in trust, then it should also take some credit for the mid-1970s spike. The numbers indicate that, at that time, the public believed the press was doing something right. A strong candidate for that something right: watchdog reporting. More generically called investigative reporting or accountability reporting, this is the brand of journalism that focuses on exposing government malfeasance and corruption. Watchdog reporting gained public recognition in the early to mid-1970s.

In 1971, both The New York Times and The Washington Post began publishing excerpts of and writing about the Pentagon Papers, secret government documents detailing the United States’ involvement in the Vietnam War.¹⁵ In 1972, The Washington Post helped to expose that a burglary at the Watergate was part of broad spying and sabotage effort aimed at re-electing President Richard Nixon.¹⁶ The fallout prompted Nixon’s resignation in 1974.

Of course, despite its impressive shoe-leather reporting, the press did not boost its own image single-handedly. Credit is also due to other institutions that lionized the press at this time, the U.S. Supreme Court and Congress. Law – whether judge-made or statutory – was essential in amplifying the way in which the press already performed its democratic roles and in providing tools and inspiration for the press to continue to play those roles.¹⁷

First, with respect to the U.S. Supreme Court, from the late 1960s and through the early 1980s, the Court decided nearly all the cases that now comprise the press law canon. In these opinions, the Court laid rhetorical and legal groundwork for public trust in the press. As a group, these opinions are so laudatory of the press, this era has been referred to by legal scholars as the press’s “Glory Days.”¹⁸ Many of these cases focus on the press’s watchdog role. For example, in New York Times Co. v. United States¹⁹ (known as the Pentagon Papers Case), Justice Black wrote that under the First Amendment, “[t]he press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government.”²⁰

The Pentagon Papers Case, as well as other cases that discuss the press’s role as a watchdog, evince the deep trust that the Court had for what it seemed to view as a sister institution. For example, in the 1966 case of Sheppard v. Maxwell,²¹ the Court built up the press by calling it a “handmaiden of effective judicial administration” through “guard[ing] against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.”²² It is hard to imagine a demonstration of deeper trust than this – an expression by the Court that it needed the press to do its own job effectively.

A decade later, in Nebraska Press Association v. Stuart,²³ the Court reaffirmed its trust in the press and perhaps reflected the public’s newfound surge in trust. In invalidating a bar on the press publishing accounts of confessions in a criminal trial, Justice Brennan’s concurrence, joined by Justices Stewart and Marshall, spoke again of the importance of the press serving as a check on the judiciary. He wrote, “[F]ree and robust reporting, criticism, and debate can contribute to public understanding of the rule of law and to comprehension of the functioning of the entire criminal justice system, as well as improve the quality of that system by subjecting it to the cleansing effects of exposure and public accountability.”²⁴

During these Glory Days at the Supreme Court, Congress was also laying groundwork for the press-trust bump. In 1966, Congress passed the Freedom of Information Act, which allows any person to request government agency records on any topic.²⁵ Newspapers were the driving force behind the law, and its key congressional sponsor cited the needs of a free press when urging its passage.²⁶ Despite criticism of its implementation by agencies, FOIA remains more than a half-century later a key tool for watchdog reporting.²⁷ Moreover, FOIA spawned transparency laws in state legislatures across the country.²⁸ All fifty states now have sunshine laws modeled on FOIA.²⁹

None of this is intended to be a claim that courts or legislators single-handedly resurrected public trust in the press during the 1970s. Even proving that they moved the needle is difficult. Yet, it can be shown that watchdog journalism thrived toward the end of the press’s Glory Days in the Court and after Congress’s passage of FOIA.³⁰ Because the shift in journalistic practice towards a watchdog role surged post-Watergate, this suggests the press felt buoyed by positive rhetoric from the Supreme Court as well as by the tools granted to it legislatively. Given the potential of courts and legislatures to contribute to such a shift, it is worth asking how law can assist anew.

5.3 Trust, and the Press as Facilitator of Deliberation in Public Squares

As a starting point, it helps to return to journalistic first principles and consider whether any are apt to spark renewed trust and are also aligned with the press’s democracy-enhancing role. In the 1960s and 1970s, the Supreme Court and legislatures homed in on the press as a watchdog. This role required trust in the institutional press’s authority, particularly its role as a Fourth Estate and a check on the three branches of government.

It might be appealing to simply revisit the watchdog role and look for ways that law can reinvigorate the press’s watchdog efforts. These efforts would likely be welcomed by journalists and press advocates. The press’s watchdog role continues to be central to its self-image as well as its democratic function, especially in our current era of burgeoning autocracy.³¹

Yet, polling suggests that doubling down on watchdog journalism is likely not the best way to win public trust today. One recent study by Gallup and the Knight Foundation on trust in local news sources concluded that even though the press has a “mandate to help democracy flourish,” “more aggressive coverage of social and political issues could further polarize views – and possibly lead to an erosion of trust” at least at the local news level.³² A separate poll, published in 2021 by the Associated Press-NORC Center for Public Affairs Research and the American Press Institute, suggested that conservatives are less likely to see the value in watchdog reporting. Examining the relationship between people’s “moral values” and the “core values” of journalism, the study found that those “who most value loyalty and authority are much less likely than others to endorse the idea that there should be a watchdog over those in power.”³³ About 86 percent of those in the study who valued loyalty and authority identified themselves as conservative or moderate.³⁴ The report, which used trust as a way of thinking about how the press can appeal to a broader audience, concluded that “[t]o woo subscribers, the media will need to vary its messaging beyond traditional appeals about journalism being a watchdog.”³⁵

In keeping with this suggestion, another tack is to look to innovations in today’s press – and those particularly aimed at journalism’s democracy-enhancing mission – for guidance. In the late 1960s and 1970s, watchdog reporting was a focus for newsrooms and was coming into its own journalistically. It made sense for the Supreme Court and legislatures to amplify and celebrate this press role. Looking at journalistic practice today, at a time of significant institutional challenge and change, another press role is coming to the fore. That is the role of the press as a convener and facilitator of community conversation and deliberation. It is this role that helps build the shared epistemic foundations central for democracy.³⁶ In this way, it is a fundamental press role deserving of protection.

In one sense, journalists have recognized this convening role as a press function for decades. The Elements of Journalism lists as one of its ten elements of journalism that journalism “must provide a forum for public criticism and compromise.”³⁷ In doing so, it references the 1947 Hutchins Commission report “A Free and Responsible Press,” which stated that “[t]he great agencies of mass communication should regard themselves as common carriers of public discussion.”³⁸ Elements authors Kovach and Rosenstiel stress that this forum must have two qualities. First, it “should adhere to all the other journalistic principles,” including a dedication to “truthfulness, facts, and verification.”³⁹ In addition, “it should relate directly to Madison’s recognition of the central role of compromise in democratic society.”⁴⁰

Of late, as journalists seek to rebuild lost trust, they have embraced this role in the form of “community-centered journalism.” Community-centered journalism – along with engaged and social journalism – seeks to involve the community more directly in the news-making process as a means of strengthening those communities. As one researcher describes engaged journalism, it is “an inclusive practice that prioritizes the information needs and wants of the community members it serves, creates collaborative space for the audience in all aspects of the journalistic process, and is dedicated to building and preserving trusting relationships between journalists and the public.”⁴¹

To do this, community-centered journalism shifts the power dynamic between journalist and citizen from one that has long been hierarchical and transactional to one that is more collaborative.⁴² Rather than the press dictating what issues are important and so serving a gatekeeping function, engaged journalists look to the community to help assess needs and interests. For example, in her book Community-Centered Journalism, journalism scholar Andrea Wenzel features Curious City, “an ongoing news experiment” in which Chicago radio station WBEZ asks its listeners to submit questions that journalists can help answer. She notes that this approach marks a shift from the “traditional story cycle” in which the public only becomes involved at the time of publication, to a “public-powered story cycle,” in which it plays a role far earlier.⁴³ In an effort to build community and trust, and to be sure they reached all corners of the community, WBEZ journalists began driving around the city to solicit questions. They also partnered with community organizations, brewpubs, and libraries to build a stronger network.⁴⁴

In this way, engagement journalism produces what one would expect – news – but its advocates say it does more: It builds and reinforces community. Speaking of a Seattle Times engagement-journalism project called the Education Lab, the project’s editor Sharon Chan said: “The discrete product … was the relationship.”⁴⁵ As with many engaged-journalism efforts, the Education Lab began with a “listening tour” aimed at hearing what issues teachers, students, parents, and other community leaders thought should be covered. To keep the community involved in the process, reporters “asked questions on social media, published guest columns by community members, held live Q&As with reporters about their stories and hosted events and even workshops to deepen conversations and make it easier for people to act.”⁴⁶ In presenting the project with an inaugural prize for community engagement, judges for the Associated Press Media Editors Awards said that “[t]he newspaper helped to turn often angry rhetoric into constructive dialogue that parents, educators, and community members craved.”⁴⁷

Although the level of attention being paid to engaged journalism is new, the seeds of this method have been germinating for decades. Wenzel cites James Carey’s ritual view of communication – dating from the early 1990s – as an intellectual precursor. She writes that “[i]n Carey’s ideal … the value of the press comes from creating a space for the public to understand information through public discourse and by ‘encouraging the conversation of its culture.’”⁴⁸ She also credits Jay Rosen as a “founding proponent” of a “public or civic journalism movement of the 1990s” that, in Rosen’s words, called for journalists to “address people as citizens, potential participants in public affairs, rather than victims or spectators” as well as to “improve the climate of public discussion, rather than simply watching it deteriorate.”⁴⁹

As this movement has bloomed, the broader journalism world has taken notice. The Columbia Journalism Review, a key industry publication, has featured engaged-journalism leaders and practices on its pages.⁵⁰ The Solutions Journalism Network, which advocates for a type of community-centered journalism, has grown from its two founding New York Times reporters in 2013 to an organization that has worked with more than 500 news outlets and 20,000 journalists.⁵¹ The concept of community-centered journalism has also attracted philanthropic funding. The Democracy Fund, for example, runs “The Engaged Journalism Lab,” which is focused on “building trusted, inclusive, and audience-driven journalism.”⁵² And the graduate journalism school at the City University of New York has a master’s program focused on “social journalism.”⁵³

This recognition and support suggest that community-centered journalism is becoming a key journalistic practice. As Rosen wrote in 2019, “Engagement journalism, solutions journalism, less extractive journalism, a more agile, iterative newsroom. Nothing I have seen while watching these emerge suggests they are going away soon. The shocks to the system have been so many that the culture of the press is evolving.”⁵⁴

Those running engaged-journalism projects are still discerning how best to measure their impact; data about their effect on citizens’ trust specifically is difficult to come by.⁵⁵ Yet, its scholars and practitioners believe it is indeed building trust. Andrea Wenzel argues that engaged-journalism projects “can contribute to a communication environment with greater trust between media, community members, and organizations, where residents feel more connected and invested.”⁵⁶

Scholarship in other disciplines also suggests that engagement journalism has the potential to foment trust and is desperately needed. For example, philosopher Robert B. Talisse argues in his book Overdoing Democracy that for democracy to work, we need to invest in “civic friendship.”⁵⁷ In a world oversaturated with politics, this friendship is based on bringing community members – even those who “staunchly object” to one another’s values – together to build relationships through activities and conversation that are apolitical.⁵⁸ It is by building trust through civic friendship that we can start to rebuild a working democracy, argues Talisse.⁵⁹ Community-centered journalism is poised to do this by serving as a facilitator and convener, and law can help.

5.4 The Role for Law in Press Trust-Building

In some senses, law has already recognized the press’s facilitative role. The Supreme Court has understood the press to serve as a facilitator of the public square. In Mills v. Alabama,⁶⁰ the Supreme Court said that the Constitution “specifically selected” the press “to play an important role in the discussion of public affairs.”⁶¹ Press law scholar RonNell Andersen Jones cites Mills, Miami Herald Publishing Co. v. Tornillo,⁶² and other cases in arguing that the Court’s “Glory Days characterizations also positively portray the press as a dialogue builder – a critically important distiller of societal information and shaper of community conversations through the application of editorial insight and journalistic acumen.”⁶³

In Tornillo, in which the Court struck down a Florida “right-of-reply” statute, the Court indicated that the metaphorical space in which the press serves as a dialogue builder is “the marketplace of ideas.”⁶⁴ That marketplace, said the Court, quoting New York Times v. Sullivan,⁶⁵ is a place where “debate on public issues should be uninhibited, robust, and wide-open.”⁶⁶ The Sullivan Court described a marketplace that was freewheeling and even inhospitable. It said the marketplace “may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”⁶⁷

Together, these cases describe an information ecosystem in which the press, exercising its editorial discretion, serves as a gatekeeper and agenda-setter for public discussion.⁶⁸ In this ecosystem, the relationship between press and citizen is hierarchical and unidirectional. The Court envisions the press as dictating the terms of the discussion that citizens take up with each other. It does not seem to envision press involvement in that conversation or even press listening. Exchanges are in the form of a “debate” rather than a conversation, collaboration, or deliberation. That debate is “caustic”; it is not for the faint of heart.

This vision of the press as gatekeeper of a marketplace characterized by robust and uninhibited verbal sparring squares well with the press’s role as a watchdog. The watchdog role is, by its very nature, an adversarial one. It involves the press serving as a check on government. In doing this, the press acts as a defender and protector of the public.

The Court’s vision of the press as a gatekeeper of the public square and marketplace of ideas does not square quite as well, however, with the convener and facilitator role for journalism – what Kovach and Rosenstiel described as “provid[ing] a forum for public criticism and compromise.”⁶⁹ And it arguably squares even less well with the way in which community-centered journalism views the role of the press – as a co-creator of news with the public. In fact, the gatekeeper role and marketplace metaphor seem quite hostile to this vision.

Beyond being out of step with journalism’s evolving conception of its democratic role and its more recent innovations, the Court’s description of the press is also dated in another significant way. It is simply no longer true that the mainstream media is the major gatekeeper of the public square or marketplace of ideas. That role has largely been taken over by technology platforms, as the Court itself has recognized. In Packingham v. North Carolina,⁷⁰ the Court described social-media platforms as “the modern public square” and said that “[t]hese websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.”⁷¹

Law’s first step then in generating more trust in the press, as it was in the press’s Glory Days, is to recognize the ways in which today’s press is promoting democracy and the promising directions in which it is headed. The Supreme Court’s vision needs updating – both as to what the press is and does, as well as the space in which it operates. As the Court has long recognized, the press is and should remain a watchdog. But the press’s role in perpetuating a functioning democracy is much broader than the Court’s key press decisions – now decades old – have described.

The press is and should continue to be a facilitator and convener of community conversations. In so doing, the press builds trust between citizens and weaves the fabric of community. This role is not predominantly characterized by a hierarchy with the press sitting atop citizens. And it is not one dominated by aggression or opposition. Rather, it is one in which the press and citizens co-create the boundaries and substance of the space in which they operate. These are not spaces in which journalists or the press necessarily cede expertise, but instead spaces in which they recognize that they are not the only holders of it. Community members also bring wisdom and skills.

The spaces in which these conversations occur can be described not as one “public square” or “marketplace” but as public fora – a multiplicity of locales for community deliberation and collaboration. These press-facilitated or press-convened public fora could look and feel different from the marketplace and public squares that the Court has conjured in the past. They could also be different from one another. They could be physical, but they could also be virtual. They could be typified by speaking and conversation, but they could also include silence, listening, and even collaborative doing. As described, the press is already creating these spaces, and it should be encouraged to expand and embroider upon what it has started.

The Supreme Court could help. As noted, it could begin by updating its understanding of the press. In theory, this would not be difficult. It would not entail granting the press any special rights (something the Court has steadfastly avoided). As it was during the Glory Days, it could largely be a matter of rhetoric. As the Court celebrated the role of the press as a watchdog then, it could likewise laud the role of the press as a convener and facilitator today. To do so, it would not even need to take up a case involving the press as a party. One could imagine a discussion of this vital press role in any case in which the Court took account of public sentiment (reached through discourse and collaboration) or any case in which the Court exercised judicial restraint and deference to the political process (which could then involve citizens – with the help of the press – working through issues of public concern).

Admittedly, the U.S. Supreme Court revisiting and updating its conception of the press (at least in any press-favorable way) seems as elusive a proposition today as building trust is. As press scholars RonNell Andersen Jones and Sonja R. West have shown, the Supreme Court’s characterizations of the press have plummeted in quantity and favorability.⁷² Jones and West have written: “Our data suggest that any hopes that the judiciary can be trusted to be a savior of press freedom in America might be misplaced.”⁷³ Yet, this need not be an insurmountable obstacle. It may mean that press advocates need to lean more heavily on lower courts and legislatures. Lower courts can just as easily engage in pro-press rhetoric as the Supreme Court. Legislatures too can do so not only through legislation, but through hearings, committee reports, floor statements, and the like. And even though being anti-press sometimes seems like part of the Republican platform, Congress has occasionally shown signs of press friendliness.⁷⁴

Plus, there are fifty state legislatures that can also take up this call – not simply to engage in pro-press rhetoric, but to help create the conditions in which the press can best serve as a facilitator and convener. New Jersey has shown its willingness to participate in such efforts by creating the Civic Information Consortium aimed at “strengthening local news coverage and boosting civil engagement.”⁷⁵ And given that states can be more protective of press rights than the federal government is, bolstering the press at the local level makes sense. This goal is also aligned with community-centered journalism and its concern with assessing community wants and needs.

Proposals to boost the press’s role as facilitator and convener could be broad. They might involve providing public facilities for the press to use for gathering the public. This could range from subsidizing journalists’ use of existing spaces to building new community information hubs that could bring together journalists, librarians, historians, and other community information specialists. Other proposals might be aimed at creating and supporting programs that teach community-centered journalism practices to students and citizens. Proposals could also include loan-forgiveness programs for aspiring journalists interested in this work.

Both press advocates and press skeptics might rightfully ask whether the press is the best institution to play this role of community facilitator and convener. Perhaps community glue would be stickier if produced by religious organizations, book clubs, civic associations, or even facets of the legal system like juries and mediators. But the press has already tasked itself with this work and a growing movement of journalists is invested in it. Moreover, journalists’ skill set – interviewing, listening, and storytelling – is well-aligned with the facilitator and convener role. Journalists are capable, committed, and already playing this role.

5.5 Conclusion

By promoting community-centered journalism in these ways, journalists, judges, and legislators would be taking up the call from legal scholar Mary Anne Franks to move past the conventional wisdom of the internet as a “modern public square” and “quintessential site of democratic deliberation.”⁷⁶ To avoid recreating the hierarchies that have existed in our public square, Franks says “we can envision the flourishing of multiple spaces – online and off, public and private – that provide the conditions necessary for free expression and democratic deliberation.”⁷⁷ She cites as examples “homes, schools, workplaces, bookstores, hair salons, and clubs.”⁷⁸ Spaces created by community-based journalism could serve the same goals – these could be in newsrooms, but they could also be in restaurants, libraries, community halls, parks, community information hubs, and any number of other spots. They also need not be limited to physical spaces. Journalists could also convene online communities. Yet, as long as democracy has a geographic component, it will be important for some conversation and compromise to occur between people in physical community with one another.⁷⁹

Yes, this vision expands the parameters of what the law (and even journalism) has imagined journalists and the press to be. That means that both journalism and law will need to engage in what sociologist Thomas Gieryn calls “boundary-work.” As Andrea Wenzel explains, this approach “looks at how groups compete in ever changing contexts to define what falls inside and outside a social boundary.”⁸⁰ Journalists – especially community-centered journalists – are already redefining these boundaries.⁸¹ The law needs to join them. Judges, legislators, and legal scholars need to reflect on what our press is and what we need it to be. The press’s role as a convener and facilitator of public fora aligns with its role of providing citizens with the information that they need to participate in government.⁸² If we use law to support this role, we could move ever closer to a more ideal democracy.