Martha Minnow
Harvard Law Professor Martha Minnow (Berkman Klein Center for Internet & Society/Flickr)

The framers of the Constitution wrote the First Amendment to shield the press from government control, in recognition of its critical role in a democracy. But today the biggest threat to journalism isn’t government, but economics, as technology upends the old print business model.

With the decline of print subscriptions, the Google and Facebook duopoly has come to dominate online advertising, commanding more than half the U.S. online ad market in 2020. According to a recent study by the Pew Research Center, newsroom employment in the U.S. fell 26 percent between 2008 and 2020, with traditional newspapers hit the hardest. A growing number of Americans live in “news deserts”—areas that no longer have reliable or consistent local news coverage. The problem worsened during the Covid pandemic, as hundreds of newsrooms across the country announced furloughs, layoffs, and pay cuts.

In her new book, Saving the News: Why the Constitution Calls for Government Action to Preserve Freedom of Speech, Harvard Law professor (and former dean) Martha Minow argues that government policies to keep media outlets afloat are not merely permitted under the Constitution, but mandated by it.

“The guarantee of free speech and a free press in the U.S. Constitution’s much-exalted First Amendment presupposes the existence of an independent press,” Minow writes. Therefore, it’s wholly acceptable for the government to take action to secure its survival. To that end, Minow proposes stricter regulation of internet platforms and more robust government backing for struggling news organizations in the form of tax breaks and government investment in a “public internet.”

I spoke with Minow recently about the threat social media platforms pose to journalism, what the government can do to support struggling newsrooms, and whether liberals and conservatives can find common ground in this area.

This conversation has been edited and shortened for clarity.

Some Americans might be skeptical of your proposals; there are many people who believe the First Amendment should be a barrier that separates the government from the press. What would you say to them?

The First Amendment says that the government cannot abridge the freedom of speech. It also says that the press is protected by the Constitution. Throughout American history, there has been government involvement, direct and indirect, in the media, including the postal subsidies from the founding of the Postal Service to today, all the way to purchasing telegraph machines, investing in the research that created the internet, and, of course, with regard to broadcast and cable, creating the regulatory framework. I share the concerns about government involvement in content. I would not want anything close to that. But the history of public broadcasting is a good example of the possibility of devising insulation mechanisms to make sure that no government actors are involved in any content decisions.

Journalism has been hemorrhaging jobs and losing revenue to social media platforms. What role did these platforms play in their decline?

First is the migration of advertising dollars. Since the 1920s, the business model for news media has depended in part on advertising. But now there’s a massive shift of ad dollars that go to the big platforms and allow for targeted advertising. That’s hollowed out the economic base for newspapers, but also for broadcasting and cable. Secondly, the internet platforms actually allow for the posting and sharing of materials—news developed by traditional entities—and don’t pay for it. Sometimes, they accelerate it themselves through their search algorithms and so forth. They’re absolutely benefiting from the labor of others, and they’re not putting the dollars back in. Traditionally, there was a virtuous cycle, so that conventional news organizations would invest in reporters and stories and distribution, and then make money and then reinvest. Now the money is being swept up by large internet platforms. Third, the big platforms have developed, through algorithms and other elements of the architecture, mechanisms for separating people so that we don’t share the same information.

In your book, you’re critical of Section 230 of the Communications Decency Act, which shields internet platforms from liability for content posted on them. Was the implementation of that rule misguided?

Well, the adoption of Section 230 was well-meaning and may indeed have helped to spur the creation of terrific, creative, and innovative entities. During the early days of the internet, no one knew what would happen. So the creation of an immunity for fledgling organizations had some sense. The problem is that these are no longer fledgling organizations. They’re some of the largest private enterprises in the history of the planet. And they are now getting subsidized by the Section 230 immunity clause—and getting an advantage that traditional media don’t have. So I argue, at least, for modifying it. It may be best to make the immunity conditional on undertaking new responsibilities like having responsible content moderation, but I don’t think the justification exists for flat-out immunity anymore.

Facebook and Twitter have large resources that they can devote to content moderation. One concern you raise is that might make it difficult for emerging competitors to break into the market, if they don’t have the resources for that kind of moderation. How would you propose limiting Section 230, while still allowing for new emerging social networks to compete with the big ones?

I think that’s a really important point, and promoting competition is one of the roles that I think the government should take much more seriously. I think it’d be completely possible to craft the immunity based on the scale of the enterprise, and therefore to provide some degree of immunity for the smaller or emerging platforms. I don’t think that’s a problem.

How does your critique of social media companies differ from criticisms made by Republicans, who also want to rein in Big Tech, based on different, political motivations?

I think similar concerns include the sense of irresponsible, unaccountable content moderation—where the big platforms change their rules, don’t make them transparent, don’t enforce them. We’re also concerned about concentrated power and concentrated wealth without competitive realities to hold them in check, and the evasion of consumer protection [regulations] and the evasion of even the transparency that’s necessary to monitor. It doesn’t worry me that those are criticisms that are shared across the political aisle.

Where I think we may part company is on the remedies. I think that [Republican Missouri Senator] Josh Hawley and some others think that the big problem with content moderation is that there is a bias politically, that conservative voices are excluded. I think that there is good reason to contest that empirically. But besides that as a concern, the remedy should not be content moderation by the United States government, which is what he has proposed.

Is there a way for liberals and conservatives to find common ground and craft a policy solution without making the government responsible for content?

I think that there might be. There are now some several dozen bills to modify or eliminate Section 230, but they differ enormously in where they go. I think there might be room for the approval of studies of Section 230 and adopting solutions. I think that there could be a convergence around a proposal that calls for more self-regulation with transparent terms and reporting requirements around content moderation. On the antitrust front, I think there actually is a real possibility for more enforcement action—more hearings in Congress, for sure; they’re already underway. Whether the Federal Trade Commission will get more resources, which is what it needs to really enforce existing authority, or more authority, is a bigger question.

What sort of action can the government take to help struggling newspapers and other “old media” outlets stay viable?

I think that there are possibilities of direct support for local news, in particular, through tax deductibility. There’s a bill pending in Congress already that would allow individuals who subscribe to local outlets to deduct their expenses, [and] small companies that advertise in local outlets to get a tax credit. That’s all what the economists would describe as a government subsidy. I think it’s possible to imagine a tax that is brought against the large platform companies, and the revenues, at least partly, are put in a reserve that’s available for local media. I think that there’s a serious opportunity for building a public internet with public resources that would not be ad-driven. Rather, it would be modeled on public broadcasting.

In the 1960s, and 70s, CBS News anchor Walter Cronkite earned a reputation as “the most trusted man in America.” In the decades since, American audiences fractured along ideological lines and across different news sources that furnish radically different versions of the news. Is there any hope for a return to a media landscape in which news can be consumed by a broad cross section of Americans?

I think it’s helpful to go back into history even further, and to see that there have been periods of politicization of media in the United States. It’s not all been rosy. There has not always been even an aspiration of objectivity of journalism. On the other hand, I’m very much affected by the empirical research of people like my colleague, Yochai Benkler, who points out that the polarization that we see now in news consumption has as much to do, or even more to do, with the isolation of some of the media from a general ecosystem as it does with the separation of readership. Benkler shows that, for example, in the 2016 presidential campaign, there were conspiracy theories on the right and the left, but the ones that started on the left got shut down by the mainstream media because the extremists were in the same ecosystem. The ones on the right were not in the same ecosystem, so they didn’t get shut down and people didn’t hear a competing view.

I think that some of the reforms that we’ve been discussing, that really attend to competitiveness and that lead to [government] payment for news, could strengthen the checks and balances that we’re missing right now. I don’t think we’re ever going to have a time when all of America shuts down and watches the same event on the three channels that dominate the country. But I think it’s very possible that we could come to a time where the same kinds of facts are circulating much more than they are now.

Alex Dalton

Follow Alex on Twitter @1AlexDalton. Alex Dalton is an editorial intern at the Washington Monthly.