March 17, 2018
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The First Amendment problem

Contributed | BDN
Contributed | BDN
By Michael Socolow, Special to the BDN

American journalism faces a difficult future. The mass audience has been fragmented beyond recognition, the costs involved in producing news — whether in print, on the air, or via satellite — continue to rise, and advertisers are looking elsewhere to spend their money. Like workers in other industries, professional journalists are grappling with the implications of a radical transformation of their work routines. Many are being fired, and hiring freezes have become the norm throughout the industry.

Many culprits share the blame. The Web has restructured the news habits of the American information consumer, while improvements in audience analysis have undermined the economic basis of traditional journalism.

Competition for the audience member’s attention has grown fierce. News — the product produced by journalists — is now cheaper and more plentiful than it has ever been.

The ubiquity of news and information is, ultimately, American journalism’s most serious problem. While journalists and media analysts bemoan the role of new technology in creating this troubling situation, few pause to reflect on the larger structural context responsible for this overproduction of information. The most fundamental problem with American journalism today is, ultimately, the First Amendment.

Too often we celebrate the founder’s conception of a vibrant marketplace of ideas without reference to the economic realities of an unregulated media environment. The Bill of Rights seemingly permits anybody in the United States to claim the title of “journalist.” Congress can make laws controlling everything from the practice of law to cutting hair to the sell-ing of lemonade, but it is expressly prohibited from interfering with freedom of the press. In this sense, journalism remains one of the few unregulated ways to make money in the U.S.

To understand the radical nature of this situation, just consider that in 22 states it is illegal to call yourself an interior designer without certification. If you want to open a store, counsel people for money, or manufacture hand-crafted children’s toys, the government needs a word with you.

Discussions of regulation will always be clothed in phrases about “protecting the public,” yet when it comes to protecting the public sphere — that arena of social discourse underpinning our democracy — anything goes. You are free to start a newspaper filled with defamatory opinions about the president, Congress or your local town councilman. Hate speech? No problem, just get a blog and get to work.

The First Amendment’s implication for the economic health of the American media is enormous. Perhaps this is one reason so few nations have followed the model of the U.S.

In Canada, political commentators risk thousands of dollars in legal fees and fines by publishing political and social opinions deemed too inflammatory by provincial human rights commissions. In England, seditious libel still exists — one can go to jail for insulting the Crown. Draconian penalties await those in places like Saudi Arabia, China or Cuba for opin-ions deemed dangerous to the state. Several nations officially license journalists, and, lest you think the tide of media freedom is moving America’s way, the Australian government has recently announced its intention to implement Internet censorship.

The idea of licensing American journalists appears absurd. But if we licensed journalists, it is possible that professional standards would be improved, credibility would rise and our media enterprises would gain value.

But it is also probable that any licensing scheme would be exploited by politicians and regulators, who would surely frighten journalists into acquiescence and subservience. Any possible gains in improved ethical standards and a rationalized competitive environment would be overwhelmed by the costs of deference to authority and the loss of liberty.

It is tempting to blame journalists themselves for the problems they face. Some argue that the profession’s demise is directly related to its disdain for its consumers. Others point to a journalistic culture resistant to change in the radical manner required. To those who make these arguments, news production differs little from producing a car, toys or clothes.

Perhaps we ignore the economic reality of the First Amendment because restructuring the way Americans produce and consume journalism is too radical a proposal. I do not favor licensing journalists or developing tightly-regulated media cartels. The very intractability of the problem is disheartening for journalists who love their craft and those dedicated consumers sticking it out.

If current trends continue, the day will come when everyone produces news and nobody is willing to pay for it. Our collective self — the nation we call America, created in no small part by journalists like Ben Franklin — will fragment beyond recognition. And, ironically, the First Amendment will be responsible.

Michael Socolow is an assistant professor of journalism at the University of Maine.

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