The Lawfare Podcast: Lidsky and Koningisor on First Amendment Disequilibrium

[Audio Excerpt]

Lyrissa Lidsky

If you look at these things together--the lack of personnel; the decline of expertise; the decline of resources to litigate, to protect its power; the design of resources to lobby legislatures for statutes protecting important press rights; and the overall declining public trust, it really is a very different landscape of press power than it was in these pivotal cases. The press simply can't protect its prerogatives to the extent it did.

[Main Podcast]

Matt Gluck

I'm Matt Gluck, Research Fellow at Lawfare, and this is the Lawfare Podcast, March 6th, 2024. Executive branch constraints and the posture of the media have shifted in significant ways over the past two decades. Lyrissa Lidsky and Christina Koningisor, law professors at the University of Florida and the University of California, San Francisco, respectively, argue in a forthcoming law review article that these changes, including the erosion of certain post-Watergate reforms and the decline of local news, have created a First Amendment disequilibrium. They contend that the twin assumptions of the press's power to extract information and check government authority on the one hand, and the limitations on executive branch power on the other, that undergird First Amendment jurisprudence no longer hold, leaving the press at a significant First Amendment disadvantage. We discussed the current state of First Amendment jurisprudence, the ways in which the press used to be stronger, executive branch power on the federal and state levels, how the authors think are current First Amendment architecture should change, and more.

It's the Lawfare Podcast, March 6th, Lidsky and Koningisor on First Amendment Disequilibrium.

Lyrissa, could you please describe your argument in your forthcoming law review article on First Amendment disequilibrium?

Lyrissa Lidsky

The basic argument is that the U.S. Supreme Court, in its key First Amendment decisions defining the protection of press freedom, assumed a state of affairs that no longer exists. So the basic state of affairs that they assumed was a powerful press devoted to being a watchdog and holding the government to account. And a constrained executive branch, in particular, that was both dependent on the press to get its message out, but also had limits on its powers to engage in secrecy and protected secrets. And so, when asked in these Supreme Court cases whether the press should get special constitutional ability to extract information from the government, the Supreme Court believed that the press simply didn't need it. And so in the article, we explain how this assumption of an equilibrium between press power and government power and the tug and pull designed to extract the kind of government information that the public needs to be informed about what the government's doing, that this power relationship no longer exists and the law needs to respond accordingly.

Matt Gluck

And Christina, you begin your article with a story of New York Times reporter, Earl Caldwell. Could you explain who Earl Caldwell is and why he matters for understanding the First Amendment equilibrium that you say existed before our current era?

Christina Koningisor

Yeah, so Earl Caldwell was a reporter at the New York Times. He was really prominent at the time. He was the first Black reporter that the Times had assigned to cover the civil rights movement. He was the only journalist on the scene when Martin Luther King Jr. was shot. So he was really prominent. He was really successful. And in 1968, the Times moved him to start covering the Black Panther Movement, so he was flying back and forth to Oakland a bunch. And at some point that fall, a couple of FBI agents show up to the office, and they essentially say, “We want you to start passing along information about the Black Panther Movement to us,” and Caldwell said, “No,” and they went back and forth. And a year and a half later, a federal prosecutor subpoenaed him to testify before a grand jury about things he had seen and witnessed in the course of his reporting. And so he refused, and he basically said, “The First Amendment protects my ability to engage in newsgathering, which extends to cover confidential sources and confidential information gathered through the newsgathering process.” And so, eventually, his case gets bundled with cases from two other journalists, who are also refusing to reveal confidential information or confidential sources. It goes to the Supreme Court in 1972, and the Court rejects his claim. It essentially says, “There is no qualified constitutional privilege that protects reporters from being compelled to divulge confidential information, at least when it comes to grand jury subpoenas.” It left open a lot of questions that the lower courts are still trying to sort through, in terms of whether or not maybe there's a qualified privilege in other contexts. But in the course of its discussion, the Court repeatedly said, “You, the press, don't really need this protection. You're really powerful, you're financially powerful, you are politically powerful. And so, when it comes to these kind of battles over information access and shielding sources and shielding information, you don't need the Court to step in in this way, and you can fight these battles through these other mechanisms.”

Matt Gluck

Christina, why does your equilibrium story begin there? You note in your piece that the framers cared about press freedoms, and we see that in the language of the First Amendment. So, why did more substantive protections for the press not emerge in force until the middle and later part of the 20th century?

Christina Koningisor

Yeah, so I think this is a longer and more complicated story about how the First Amendment and how the Bill of Rights applied to the states. And so, you just don't get a lot of activity in this space from the Supreme Court because the assumption, up until the early 1920s, is that the First Amendment only binds the federal government and a lot of the press suppression that's happening throughout this period is happening at the state level. And so you just don't have a lot of activity necessarily. And so, it takes then a few decades more for the courts to really step in in a meaningful way. I think they started to step in in the ‘50s, then much more actively in the ‘60s, and then definitely in the ‘70s, in part in response to broader political activities that are happening at the time. The Vietnam War, of course, led to the collapse and this more collaborative relationship between the press and the government that you saw in earlier wars like World War II. You have this golden age of investigative reporting that happens at this time, and so you get a lot more aggressive disputes between the government and the press throughout this decade. And those disputes go through the courts and they rise to the Supreme Court and that's the time when the Supreme Court is being asked—when legal vehicles are being presented to them to be able to clarify.

Matt Gluck

Lyrissa, now moving back to the 1960s and 1970s, why was the press as an institution in a relatively strong position during that period and extending for decades afterwards?

Lyrissa Lidsky

There are basically two reasons. One is power and the other is money. So, the press of this period was in an unprecedented situation of profitability. They were making enough money that they could hire lawyers to advance their interests and to fight for access rights. They could fight against what they believed to be government encroachments on their freedoms, and they could litigate these cases all the way to the Supreme Court. It's a costly proposition to take a [case] up that far, and the New York Times could afford to do it in Caldwell's case because they had the resources to do so. But they were also coming into their power with the public. They were a trusted institution; Walter Cronkite was one of the most trusted men in America at this time. And although there were divides within the public--certain segments of the press were never popular with some segments of the public. Nevertheless, there was a widespread belief that the institution of the press, even if it occasionally made errors, was committed To unearthing the truth and holding the government accountable.

Matt Gluck

Now, the other main premise you outline in your article that contributed to this equilibrium that existed in the 1970s and later on, but that you claim no longer exists now, is the relative weakness of the executive branch, at least with respect to the press. Christina, you describe a set of legislative initiatives that placed constraints on executive secrecy. Could you explain both what precipitated these state and federal legislative efforts and what the laws were?

Christina Koningisor

Yeah, so I think this is, again, part of a much larger story that involves the changing role of the president and the growth of the administrative state in this time. But I think there's sort two major strands of reforms that ended up affecting government-press relations and constraining, or at least trying to constrain, the executive branch's ability at all levels of government to keep secrets and hold information tight. So you had a series of scandals and policy failures, the Vietnam War, the Watergate investigation, civil rights abuses committed by the FBI under J. Edgar Hoover. And so there was a lot of pressure to try to increase oversight of the executive branch. And so, you had statutory efforts to peel back government secrecy and allow increased access to information. So, in 1966, the Freedom of Information Act is enacted to try to allow the public to be able to request records and have more direct mechanisms of oversight. You also have the Government and Sunshine Act, which allowed the public to attend government meetings, enacted in 1976. You had similar reforms at the state and local level. Dozens of states, by the end of the 1970s, had passed state-level transparency statutes. And so you have this big push to not just increase public oversight, but also create these direct mechanisms for the public to be able to understand what's going on and oversee the government.

You also had a series of intergovernmental checks to executive eranch secrecy. And so, against this kind of backdrop of broader reform, Congress started to focus in particular on law enforcement and national security. So you have the establishment of permanent intelligent oversight committees in Congress. You have the Foreign Intelligence Surveillance Act, which gets enacted and imposes new procedural constraints on the ability of the executive branch to conduct domestic surveillance. And you also have more voluntary interbranch reforms. So you have things like non-binding guidelines issued by the Department of Justice in 1970 that essentially limit the federal prosecutor's power to subpoena journalists. At the state and local level, you have a lot of these same kind of reformist currents, but often the response was different, so you had state and local police departments that were implicated in some of these intelligence abuses of the 1950s and ‘60s, yet rather than ramp up oversight activity, like we saw at the federal level, many local governments exited the space altogether by essentially shutting down these kind of federal local intelligence cooperatives altogether. And so the end result is that at this time where you have this press that's growing in financial and political power, you also have a set of constraints imposed on executive branches at all levels of government that make it more difficult for them to keep secrets.

Matt Gluck

Now, turning to this equilibrium as reflected in the Supreme Court's jurisprudence, Lyrissa, you describe how this assumption of equilibrium undergirded the court's ruling in one of the seminal press cases of this period, the Pentagon Papers case. Could you explain how this assumption of equilibrium underlies the court's reasoning here?

Lyrissa Lidsky

Yes, so what happened in Pentagon Papers is that there was a leaker, as is well known, and he leaked the Pentagon Papers, which were documents of several thousand pages, to the New York Times. And it took months to go through those documents to understand their significance. But when the New York Times began rolling out the stories based on the Pentagon Papers, the Nixon administration quickly responded with taking the New York Times to court and arguing that they needed an injunction to stop further publications because publication would undermine the national security of the United States. In the meantime, the Washington Post got access to the documents, and they began publishing documents. And again, the Nixon administration went and sought an injunction to stop further publication. And the remarkable thing about the case is the Nixon administration, they let a few days go before they decided it was an emergency. And then they went to the courts to stop publication both of the New York Times and the Washington Post.

But initially the courts split on the ruling of whether publication could continue because an injunction is considered one of the most disfavored tools to prevent speech. There's a widespread agreement that, if anything, the First Amendment was put into the Constitution to prevent licensing of speech or government prior restraints on speech, and injunctions are a form of prior restraint on speech. And so, it could not stand that one newspaper was allowed to go on publishing and the other wasn't. And so, the Supreme Court had to act on a very, very quick turnaround to prevent this state of affairs from happening. In fact, some of the justices grumbled that they couldn't come to a reasoned decision easily because the turnaround on the case was so, so swift. So the Supreme Court ultimately said, “There is a strong First Amendment presumption against prior restraints and whatever the executive would have to do to meet that, they haven't met it here.” And the idea was that the government had erred in letting the information out, that the government had powers to control secrecy and they hadn't properly controlled the information such that it got in the hands of the press, and once the press had the information, it was fair game to publish it. And they couldn't ask the courts to weigh in and tip the balance towards the executive because there's this tug and pull between the press and the executive branch. And since the press had gotten the information through fair game, the executive couldn't now come and ask the courts to put a finger on the scale.

Matt Gluck

So returning to the case of Earl Caldwell that then emerged and turned into the Branzburg v. Hayes case, it seems that there, are and you write, that there are four underlying assumptions in the Court's reasoning there. Christina, could you spell out those assumptions and what they meant for First Amendment jurisprudence in the context of confidential sources?

Christina Koningisor

Yeah. So we essentially argue that just like national security secrets, the protection of confidential sources is another area where you can see this idea that there's a rough equilibrium between a powerful press and a constrained executive, given voice and shape. And so, in this Branzburg decision where the Court essentially rejects the press's claim to a special privilege, it has a bunch of reasoning. But one of the arguments it makes pretty powerfully is that, again, it doesn't need to step in here because the press is able to protect itself without further protection and it says, “If you're unhappy with how you're being treated by the government, you can essentially publicize the issue in the pages of your own newspaper,” which you see happen a lot. So, for example, when Judith Miller was imprisoned for, I think, about four or five months for refusing to reveal a confidential source, the New York Times ran dozens and dozens of stories highlighting the issue and her plight and so on. And so the Court essentially said when you have this situation arise, when a journalist goes to jail for not revealing information, there are other ways that the press is able to fight back.

Second, they advanced this really deeply problematic claim where they essentially say certain marginalized groups, like the Black Panthers, are so excluded from normal political processes that they're forced to make their case in the pages of the newspaper. It's a deeply problematic and unfair argument, but it's also one that is no longer true now that we have a lot more direct mechanisms for communication.

Third, the opinion assumes that the government's going to be bound by this robust set of internal constraints. And the Court actually cites this Department of Justice guidelines, which are voluntary, adopted in 1970, where the federal prosecutors are supposed to essentially get permission before they issue a subpoena to the press. And the Court says, “Look, we already have these voluntary internal guidelines, these set of self-restraints that the executive has imposed on itself, and maybe that's going to be enough to solve the problem here.”

And then finally, the Court essentially assumed that the practical cost of pursuing sources is going to be this really powerful incentive against government overreach. In other words, they essentially said, “Confidential informants provide information not only to journalists, but also to the government,” right? “The government is able to learn information through the pages of the press and the government's knowledge of activity, maybe criminal activity, is going to be reduced by an overzealous hunt for sources. And so, we don't need to really restrain the government ourselves,” the Court says, “because it's going to have these incentives to restrain itself.” And so, again, you have all of these assumptions working and operating off of these two baseline set of assumptions that the press is going to be powerful and have financial and political and other extra-legal ways to advance their interests and that the government is going to operate under a set of constraints.

Matt Gluck

Okay, now turning to the disequilibrium that you say currently underlies the First Amendment legal architecture. The first part of this imbalance you describe is the decline of the press. Lyrissa, could you start here by giving us an overview of this decline, when it began to occur, and the primary mechanisms that have undermined the press?

Lyrissa Lidsky

Yes. So first, I think it's important to emphasize that mostly in these cases we've been talking about the institutional press, what some might refer to today as the “mainstream media.” And this is an institution that has systematic incentives to engage in newsgathering and often believes its mission is to serve the public by being a government watchdog. As is fairly well known, the internet really revolutionized the underlying economic factors that affect the institutional press. Since competition came online in the sense that everyone has access to a medium of mass communication at their fingertips, the institutional press has experienced tremendous declines in personnel. They've laid off 40 and 50 percent of their workforce, and along with those layoffs, have gone people with decades of expertise in knowing how to extract information from the government.

At the same time, the status of the press has declined. Public trust in a lot of different institutions in society has declined. But along with that, there has been an unprecedented decline in the authority and the gravitas of the press and the people's trust that it's serving the public interest and that the information it provides is truthful. And so, if you look at these things together--the lack of personnel; the decline of expertise; the decline of resources to litigate, to protect its power; the design of resources to lobby legislatures for statutes protecting important press rights; and the overall declining public trust, it really is a very different landscape of press power than it was in these pivotal cases. The press simply can't protect its prerogatives to the extent it did back in what some have referred to as the “golden age” of the institutional press.

Matt Gluck

So Lyrissa, I want to push you a little bit on this point. So when you were just answering that, you explained that you're focused on the institutional press here or what people might call the “mainstream media.” So one counter-argument might be that, sure, that part of the media has weakened over time. But at the same time, all these other parts of the media have cropped up and become empowered through social media, Substack, and other mediums. So why don't you consider the rise of those other forms of media as strengthening the press and this component of the First Amendment equilibrium?

Lyrissa Lidsky

I think that's an excellent question and I teach internet law and I really do support all of these alternative ways of providing us, as citizens, with information, and I think there are some important successes in non-institutional media. For example, Edward Snowden's revelations can be seen as a kind of whistleblowing on government activities. Or some recent investigative journalism has come out of Substack reporters who used to be institutional press reporters and now no longer are. So I think that's an excellent question.

Here's the problem, though. One of the things that the institutional press used to do is they would have reporters stationed at various points around the world, or reporters stationed in state houses. And those reporters had it as a systematic job to gain expertise and gather information over time, as opposed to some of this other behavior is piecemeal and lacks the resource support necessary to really uncover on a systematic basis government wrongdoing, or even to inform the public about what the government is doing on a systematic basis.

Matt Gluck

Christina, the second part of this disequilibrium is the weakness of the constraints on the executive branch, permitting it to operate with tremendous secrecy. You contend in your article that both of the other two branches are responsible for this current state. So how have Congress and the courts facilitated what you view as the expansion of executive branch authorities that have allowed it to operate largely in secret?

Christina Koningisor

Yeah, so I think one way to frame it is expansion of executive branch authorities, which certainly has happened. Again, it's part of this larger story of expanding presidential power. But another way to reframe it would be that a lot of these constraints that were adopted in the 1970s to try to check government secrecy power either never worked or have crumbled over time or proven flawed in some other way. So when it comes to Congress, it's often difficult for Congress to get access to information from the executive branch. You have the problem of deep secrecy or this idea that some executive actions are so hidden that congressional representatives themselves don't even know of their existence. It's often difficult for congressional staffers to get security clearance in time to be able to even read the documents once they are obtained. And so Congress, often you'll see, ends up depending on the press to raise the alarm about possible national security failures rather than vice versa.

When it comes to the courts, you also have some failures in their ability to meaningfully check executive branch secrecy. So the Federal Intelligence Surveillance Court operates behind closed doors. It's notoriously secret. You also have the lower federal courts have crafted these series of FOIA-specific doctrines that essentially make it more difficult for requesters to be able to obtain national security and law enforcement information. You have massive over-classification, which again, makes it really difficult for either members of the public or members of Congress to be able to obtain information. And you also have some of these intrabranch checks on executive power that have proven flawed. So self-binding mechanisms like the Department of Justice guidelines have often proven effective, but times like during the Trump administration, the executive branch started to essentially ignore these voluntary constraints altogether.

You often see these problems at the state and local level as well. Governors have also consolidated executive power. Agency inspector generals at the state level are less common. State agencies are often poorly funded. State legislatures sometimes only meet a few months every other year. And so you have all of these reduced intrabranch and interbranch oversight mechanisms that again makes it more difficult for the public and for the other branches to really know what's going on when it comes to government secrets.

Matt Gluck

You point to several specific dynamics underlying this disequilibrium in the context of national security secrecy. I want to discuss one in particular, and that's the changed approach to government leaks. You note that it has become much easier for leakers to disseminate large troves of documents through Snowden-like platforms bulk leaks, but that this technological shift has been accompanied by an executive branch crackdown on leakers, which began to come into force during the Obama administration and was expanded during the Trump administration, which you claim sustains the secrecy that existed before these bulk leaks became technologically possible, and it's actually gone even further in the other direction and generated more secrecy. Could you describe how the norms and technology around leaks have shifted since the Obama administration or even stretching back to the Bush administration?

Christina Koningisor

Yeah, so I think you have WikiLeaks and the rise of these document dumps really shift what had been a longstanding set of norms. David McCraw, who's a lawyer at the New York Times, and Stephen Gikow, who's a former lawyer there, they published an article where they explain the set of norms, and they said essentially after the Pentagon Papers case, there was this set of unspoken assumptions that happened between the press and the government where the press would obtain classified information, they'd make an internal analysis of whether or not they should publish it, then they'd go to the White House and essentially say, this is what we know, and this is what we're planning to do, make your best case for why we shouldn't publish it. And they would have this productive dialogue, and sometimes the paper would publish and sometimes they wouldn't. But there was a mechanism in place for a conversation to be had. And the idea was that as long as the press was pretty responsible about how it went about this process and what it chose to publish, the government would mostly refrain from going after the leakers.

But with WikiLeaks and these massive document dumps and a lot of other political changes that are happening around the same time, this is broken down. And so you see a lot more prosecutions. President Obama engaged in three times as many leak prosecutions as all previous administrations combined. President Trump continued this process in this trend. And so you have this kind of growing fear that this longstanding norm of non-prosecution is going to break down. That affects leakers. There's also a concern that it might eventually affect members of the press. So for essentially a hundred years, there's been a norm of non-prosecution of journalists under the Espionage Act. And the indictment of Julian Assange makes some people in the press nervous that this norm is weakening. Julian Assange, of course, is not a journalist and there's a lot of controversy over how he should be treated and seen, but there is some concern that it indicates that this is the direction that the government is moving in.

Matt Gluck

So one question about this piece. So, during the Obama administration, the executive branch is dealing with significant terrorism threats that were present during the Bush administration, but that were perhaps better understood during the Obama administration and the executive branch had more infrastructure in place set up to deal with them. Is it possible that the changing circumstances required the executive branch to change its approach to leaks instead of this being an affirmative seizure of power in this realm?

Christina Koningisor

It's interesting. Of course, you can make the argument. On the other hand, a response might be, the government has always had enemies, right? And prior to the threat of terrorism, you had the threat of the Soviet Union and the Cold War. And so this idea that new threats are so qualitatively different that we need to go after leakers in a new way, I think can be contested, although it's an interesting one. And I think it's certainly one that's open to debate.

But I do think a big piece of this is the massive over-classification of information. So much material is now classified, and the government has such massive powers to go after people who leak it, that there's a lot of discretion there, and I think another piece of this is a fear that they're going to use this discretion in ways that might be troubling, for example, to go after political enemies.

Matt Gluck

You also discuss, in the context of this disequilibrium, the weakness of the press's statutory rights of access as another factor that has contributed to our current state. Christina, could you discuss how these rights have operated over time on the state and federal level and how they've shifted with time?

Christina Koningisor

Yeah, and this raises an important point, which I think one critique of our thesis might be that none of these mechanisms that constrain the executive branch ever worked that well, and the executive branch was never that constrained. And I think the response is, maybe that's true, maybe that's not, but the Court assumed it did, right? And so, the assumption got embedded in the law, whether or not it was an accurate description of the reality. And so the same is true when you look at statutory access rights like FOIA at the federal level and state public records laws at the state and local level. And if you look at the legislative histories of these laws, it's very clear that the enactors, the drafters of these laws, really envision the primary users to be the press. They thought it was the press who would make the request. They thought it was the press who would sue and really be the enforcers. And for a time, this really is true. If you look at the major cases, interpreting major FOIA exemptions, often the plaintiff is a newspaper. And yet, as you have these newspapers shrink, and this is especially so at the state and local level, you have fewer members of the press available to make these requests, you have fewer members of the press available to challenge the government when it denies it, you have fewer members of the press available to sue when there is a denial. And this leaves this giant gap in the law when you don't have a public-facing entity that's going to enforce them.

So, for example, West Virginia has a number of statutory exemptions. Half of those don't have a single state court case interpreting what they mean. And so if you make a request and you get a denial in West Virginia and you look for case law to support what you think is the correct interpretation, there's nothing to go to, there's nothing to cite back to the agency. And so the loss of the press means there's a collapse in how well these statutory transparency mechanisms work for everyone.

Matt Gluck

Okay, I now want to turn to how you think we should fix this state, this disequilibrium. So you start with the law. Lyrissa, could you outline what you view as the most useful and feasible judicial remedies, though I understand that some might be useful and not so feasible?

Lyrissa Lidsky

So I think it's important to start with the possibility of different constitutional interpretations of the press clause first. And I think this is perhaps one of the hardest fixes is asking the Court to go back in and, in light of the disequilibrium, to re-examine its premises and think differently about recognizing, for example, a constitutional right to protect confidential sources.

I think the Court may still be reluctant, and here's why. One of the things that the Court struggled with in these cases where it was asked to recognize a right within the press clause of the First Amendment, as opposed to the broader speech clause, is that then, for constitutional purposes, the court would have to define who is the press that gets a special right of access to prisons or a right to refuse to reveal confidential sources. And while that question was hard in 1972 in Branzburg, it's much harder today, given the various actors who use the mass medium of the internet to perform a variety of roles that might be thought to be press functions. So I think that is one avenue, is asking for revisiting of some of these precedents and perhaps broadening them.

But in our article, we focused a lot on other mechanisms. So, one of the first things that could be done would be passing the Federal Statutory Shield Law. Forty states and the District of Columbia have shield laws. They vary somewhat in their formulation. But there is a Federal Statutory Shield Law that would protect the press from executive overreach and executive encroachment. And these bills have been, they've come up again and again and again. They almost passed various times, including in the Obama administration, and yet they always fail to get past the finish line. So that would be one way.

The other thing is on the leak front, thinking about various whistleblower protections that might protect some of these government officials from prosecution. So knowing that certain people who reveal important information about government abuses of power would be safe from being prosecuted. The DOJ guidelines that guide when to, for example, issue a subpoena to a journalist to reveal a confidential source, or when to try to search a newsroom. Those could be codified--well actually that one is, the, the newsroom search is codified into law--but the guidelines on when to subpoena journalists could be codified into law.

FOIA could be amended, of course, and enforced more readily, perhaps by funding requesters who want to force the government to give information that they're entitled to under FOIA. FOIA has such long delays and such a history of government intransigence in responding that more litigation to overcome that intransigence on a larger front could be useful.

I think we're going to have to think about, I never thought I would say this, but some public funding, particularly at the local level, for journalistic enterprises so that we have routine oversight of how state and local governments operate. Such important things occur at this level and that's where the news deserts and ghost newspapers are at present. And so I think we may have to consider public funding. And then Christina probably would like to talk about the intergovernmental oversight that could be put in place to put checks on executive overreach.

Christina Koningisor

Yeah, I think efforts to reduce executive classification powers could help. This is a really complicated problem and I don't think any one solution is going to necessarily address this, but taking steps to accelerate declassification, targeting specific problem areas, reforming the pre-publication system, which is a set of rules that require former intelligence agency employees to essentially secure pre-approval to speak or write about their employment, I think that could help as well. And so I think you have these steps that the executive branch itself could take to address some of these problems of over-classification. The attorney general, right, the Department of Justice could take affirmative steps as well. The attorney general could adopt policies limiting the circumstances under which the government will defend a FOIA denial or withholding instead of pushing really aggressive and difficult interpretations all the way up through litigation. So I think there are steps that could be taken to address the problem from that side as well.

Matt Gluck

Christina, following up on your discussion of the executive branch reforms, it seems like much of the policy relevant to the First Amendment and press freedom within the executive branch shifts a lot from administration to administration. What kind of staying power do you think these changes could have? Do you think some changes might be harder to set aside when convenient or are they all really dependent on whether the executive branch is committed to sustaining them?

Christina Koningisor

Yeah, I think these norms have been really powerful in the past. And press protections in particular have often relied on norms rather than formal binding law. And one question I think we have to ask is, have these broken down enough that we need to formalize it? One way to formalize it, of course, would be to create constitutional protections. So the DOJ guidelines are voluntary. One option would be to codify them. Another would be for the court itself to recognize that there is a First Amendment set of protections there. And so I think one question is whether we need to formalize some of these longstanding norms. And the second is if we do formalize them, who’s the best situated to do it? Is it the courts? Is it the legislatures? Is it the executive branches themselves and some of the more binding steps that they can take? And I think, depending on which substantive context we're talking about, you might have a different set of answers. And of course people are going to disagree as well.

Matt Gluck

Christina, before we turn to some critiques of your article that you reference in your paper, could you give us a bit more detail on what you view as the most productive press reforms?

Christina Koningisor

Yeah. So fixing the press, of course, is a massive undertaking and it's going to require a lot of experimentation and no single intervention is going to solve everything. But I do think there's two pieces of what's happening now. One is that the press themselves is starting to innovate. You see this rise of a more robust nonprofit model. So institutions like ProPublica and the Marshall Project at the federal level have been very successful and really crucial in uncovering a lot of really important information about what the government is up to. You also have more local outlets. There's something called the Vermont Digger based in Montpelier, which has been enormously successful in plugging the holes that opened up as legacy outlets have declined in the state. You also have some other creative funding models that are a little earlier in the process, like local news cooperatives that might prove promising in the future. So I think that's one set of reforms, is innovation among the press itself.

The second, as Lyrissa mentioned, I think is more government support for local media. The U.S. is really an outlier here. Most other Western democracies provide much more robust government support for the press, a lot more funding. And so one argument or one innovation would be to provide a lot more funding, either in the form of tax relief for the press, in the form of direct grants or fellowships. You've seen this happening at the local level already. For example, California is giving 25 million dollars a year in funding for targeted fellowships that are going to go to journalists who are looking at covering local and state government. And so you do have some innovation. The fear, of course, is that the more government support you have, the greater the threat that the government is going to be able to influence the press. But I do think we have models, both domestically and overseas, that we can look to, ways that the government has been able to successively structure how it dispenses funds in a way that insulates the press from those sorts of risks of retaliation from the government.

Matt Gluck

Did you come across anything in your research about how government-funded media sources compare to sources without government funding? Are those concerns that you mentioned reflected in the product of those media sources?

Christina Koningisor

It's really difficult to empirically say yes or no. So for example, England sets this annual licensing fee that members of the public pay annually for the television tax, and there have been some claims that the government can then use the power of the purse to influence outcomes, and yet it's hard to say, right? It's billions of dollars a year in journalism funding. Is that better than not having it? We also, in this country, of course, we have the Corporation for Public Broadcasting, we have PBS, we have NPR, and that structure of insulating those institutions from government blowback and retaliation, I think, has been fairly successful.

Matt Gluck

One critique of your argument that you reference and respond to is that this equilibrium, it's not valuable or worth saving. So what are the different strands of that critique and why is it wrong?

Lyrissa Lidsky

So, certainly the equilibrium model is in some ways an idealized version of the dominant power relationships at the time and there were tremendous variations and so you can easily point to instances where it wasn't this slightly adversarial relationship where the press is trying to extract information from the government and the government is trying to resist and yet it's dependent on the press to get its message out so the government can't afford to routinely resist the press and the press can leverage public opinion to prevent government encroachment. Certainly that's not true across the board and certainly there are instances it's a generalization. But I do believe it's a generalization rooted in some of the realities at the time, some of the time.

The other thing is, of course the press and the government, even during this time, we're sometimes aligned in their incentives. We say in the article that they acted more like co-conspirators at points. And so this equilibrium model, definitely, it doesn't capture the full complexity and the full nuance of what was going on, even during this age. And yet the Supreme Court built in these idealized assumptions based on what it believed the reality at the time to be. And so I think it does reflect some reality of some segment of both the press and the executive branch at the time.

Matt Gluck

Christina, I want to finish up by asking what listeners should be looking for in terms of returning to something closer to the equilibrium. So what are the most likely steps in the next few years, months, or years that listeners could look for as a sign of a restoration of the equilibrium that existed in the 1960s and ’70s?

Christina Koningisor

Yeah, so I think there's two big pieces of this puzzle. One is financial and one is legal/political. And so I think one promising step will be to see a wave of new legal protections, either at the state or the federal level. So better protections for confidential sources, better protection against prosecution, and so on, that will give the press the ability and the access that it needs to engage in newsgathering. This can also be affirmative fixes to things like public records laws to make them easier to use, to make it more likely that the press is able to use them to meaningfully obtain information.

I think more important is steps that are going to be taken to bolster the press financially. What keeps me up at night is the loss of local press across much of the country, and the idea that local and state governments are really operating in vast parts of the United States without any meaningful oversight at all. And for them to be resurrected, there needs to be some sort of financial intervention, either some level of innovation among the press itself that allows it to serve these places that are not being served right now, or more likely, some type of government intervention through subsidies, taxes, grants, prizes, some combination of these different mechanisms that could be used to make sure that we have meaningful local press coverage in most of the country.

Matt Gluck

Lyrissa, do you have anything to, to add to that?

Lyrissa Lidsky

I do. We can never return to the supposed golden age of the press of the ‘60s and ‘70s. And it wasn't even a golden age. It was a golden age in the sense that that there were authoritative voices at times providing us with truthful information that we as citizens could rely on about what our government was up to. Walter Cronkite was the most trusted man in America, and at least in my home in the ‘70s, we had three broadcast channels giving us news that we believed we could be trusted. Of course, it wasn't a golden age because not everyone was included in the audience of what these media were delivering. They weren't included in the voices that were heard in democratic dialogue and debate.

So what we hope can emerge is something different. Democracy needs some institution to play the role of the press in extracting information that we as citizens can use to engage in democratic self-governance. It's not going to look like it used to look. It will never look like that again, nor should it. Again, the golden age wasn't so golden. However, we do need emerging players to provide us with authoritative information we can rely on about what the government's up to, and invest in expertise to tell the stories, particularly at the state and local level that will inform us about our democracy.

Matt Gluck

Lyrissa, Christina, we will have to leave it there. Thank you so much for joining us on the Lawfare Podcast.

Christina Koningisor

Thanks so much

Matt Gluck

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