Nicholas Lemann, a veteran journalist and the former dean of Columbia Journalism School, published “Thinking the Unthinkable about the First Amendment” in the academic journal Dædalus last month, in which he argues that considering freedom of speech and freedom of the press separately may be the answer in staving off a further decline of American media.
Lemann wrote that the press clause “has long played second fiddle to the speech clause.” He suggests that “there are meaningful distinctions between professional journalism and other kinds of published expression that could more fairly be considered speech, not press.” He cites the newsgathering activities of journalists, versus those who may share thoughts or opinions on social media.
“One sometimes hears the argument that the decline of the newspaper business owes to its having lost our trust, or to some other moral failing,” Lemann wrote. “That’s nonsense, and indicative of the long-running failure of not just the courts, but also the public conversation overall, to recognize the meaningful difference between speech and journalism.”
He argues that the professionalization of journalism — or the tying of credentials for the professional media to the enjoyment of certain legal protections and privileges — could effectively separate freedom of the press protections from freedom of speech protections.
Columbia Journalism Review described Lemann’s essay as “provocative” and one that “could make some journalists uncomfortable,” but nonetheless recommends it, adding that “its ideas are worth considering, at a time when the idea of taxpayer support for news is gaining traction.”
In an interview with First Amendment Watch, Lemann discusses his essay, offering suggestions on how to curb the economic decline of journalism, describing who he believes would or would not be considered a journalist, and arguing that credentialing professional journalists may be important to its survival.
Editor’s note: This interview has been edited and condensed for length and clarity.
FAW: You argue that “there may now be another and more pressing reason for trying to give greater legal meaning to the First Amendment’s press clause: it might function as one of a number of tools for combating the economic calamity that has befallen the organized, reportorial press in the twenty-first century, mainly as a result of the rise of the internet.” Can you tell me more about this? How would greater legal meaning of the press clause combat its economic decline?
NL: First of all, there isn’t a lot of law associated with the press clause. There wasn’t a lot of First Amendment law at all until a couple of decades into the 20th century, and 100 years roughly ago, and when there started to be, it treated speech and press as pretty indistinguishable, and the tradition focuses heavily on speech, or on press as a form of speech. So, the main area where I’ve seen journalists argue for a kind of special privilege under the press clause has been in arguing for shield laws protecting the relationship between journalists and their sources from grand jury summons and requirements to testify and things like that. These laws exist in some form in a lot of states, I think most states, but they’ve repeatedly failed to pass in Congress. And also some attempts from years ago to have the Supreme Court discern in the First Amendment itself this kind of source protection hasn’t been successful. So it’s just kind of sitting there, at least at the federal government level, as something the press wants. To my knowledge, that’s been the dominant request coming out of journalism for more robust understanding of the press clause, as opposed to the press clause and speech clause taken together.
What I’m suggesting is a professionalization of our understanding of what it means to be a journalist, something that our country has really resisted — and for reasons I understand — and that this could be used as a lever to get non-pure market funding, either from philanthropy or some form of direct or indirect government funding into news organizations. The problem for the press clause, including in these source protection efforts, has been that you can’t figure out who is and isn’t a journalist, because anybody who says they’re a journalist is a journalist. So this would be creating a way of making a more distinguishable category of who’s a professional journalist. I’m not against source protection, but that wouldn’t be the big cause for me as a journalist, the big cause would be to try to use that as a way to get special economic treatment to journalists, because I think we need that at this point.
FAW: If we saw a rejuvenated press clause emerge again in the future, what exactly would flow from that? What additional rights or privileges would the press enjoy? You mention public funding of journalism. Could you be a bit more specific on why public funding could be dependent on a more robust reading of the press clause?
NL: I’m not as obsessed as many of my colleagues are with shield laws. I think they’re a good idea, but to my mind, given the situation in journalism now, they’re of secondary, not primary, importance. So I think it would be very difficult once there were some kind of policy enabling of certain kinds of journalism, it would be helpful to deal with the cacophony of voices of everybody and their brother saying “I’m a journalist, no, I’m a journalist, no, I’m journalist, no, I’m a journalist.” One thing that most of my colleagues would not be into, but I’m starting to play with, at least in my mind, is to have some kind of licensing procedure that requires certain kinds of education or training, and then only if you were licensed would you get these benefits. So if I’m not a licensed doctor with a medical degree, I can’t receive Medicare reimbursements, right? So, I do think there’s a connection potentially between having a constitutionally embedded legal definition of who is press versus who is a speaker as a way of building a support system around the press, as opposed to speech, which really only needs to be left alone, as far as I can tell.
FAW: What exactly have been the bad consequences that have flowed from this secondary status of the press clause as a result of a lack of jurisprudence, as you mention, on the press clause since the Sullivan and Pentagon Papers cases in the ‘60s and ‘70s?
NL: So first of all, I think those cases might be in danger. Several of the Republican appointed justices have hinted that they’d like to revisit, particularly the New York Times v. Sullivan case. But I’m coming at this from the other end as a non-lawyer. The overwhelming experience of my life as a journalist in the 21st century has been watching the utter economic collapse of journalism. I find that very, very alarming. And you see it in the economic numbers, in the tremendous reduction in the number of employed journalists, especially in the newspaper business. First of all, this whole sort of golden era of press law in the late 20th century predated this trend, which I would attribute mainly to the internet. It was assumed that what you didn’t have to worry about with the American press was its financial viability. But now that’s kind of a big problem.
But the unthinkable part, to me, is should we, at this point, consider turning the press into a profession, a formal profession, in the way that law, medicine, etc., are formal professions? And the advantage of that could be a structure around which you would embed journalists of a certain kind in a policy matrix, the way that other professions have … There’s a sort of policy design, including subsidies and implicit subsidies, that is meant to preserve reportorial edited journalism as part of our national life. So once you do that, once you start exploring that, you get into the problem of, what is a journalist anyway? Is it just anybody who says they’re a journalist? And that’s where the press clause, I think, could be useful, because it opens up a way of distinguishing who is a professional journalist and who is essentially a speaker. And I don’t think speakers in the internet age need these special policy protections. But I do think the kind of journalist I’m talking about, does. What I would like people to think about is whether there is a legal way of distinguishing who is this kind of journalist, and then policies could be built around for support for that kind of journalism. And to make that work, you would have to distinguish the press from speech.
FAW: You wrote that there is an inherent “free speech risk” if the press is divided into “legally privileged elite” and “upstarts and outsiders.” Where can the line be drawn to ensure a robust and healthy Fourth Estate without limiting the free speech of those who claim they are a journalist?
NL: I spent my whole life as a journalist, and what I’m asking people to think about as a legally protected category, I don’t think I would extend the protection to people who basically just comment on events. It would be people who actively gather information on matters of public concern, especially through interviewing, but not limited to interviewing, and who also seem to indicate that they work in some kind of organizational setting. And the organization operates by a set of demonstrable standards. The more journalism gets professionalized, if it does, the more there’ll be a profession wide set of standards, which there’s never been, but many organizations have internal standards.
Speech is a separate issue. But in my mind, the person who is just posting on either social media or a Substack or Medium or anywhere, “Here’s my hot take on ‘x,’ I know I have a lot of friends like that. They would call themselves journalists. I would not call them a professional journalist. I would call them something more like a pamphleteer, which is a noble and essential function in our society, and one that the First Amendment was probably written explicitly to protect. But it’s different. It doesn’t require a lot of resources to exist, and it just sits in a different place in the picture of social functions and professional functions than a reporter who works in a news organization. And proof of that, by the way, is that — I’m sort of quasi-guessing here — but the number of reporters in news organizations, especially newspapers, has decreased radically in the 21st century. But my strong guess would be the number of what I would call pamphleteers or pundits or pure opinion purveyors has, I would bet you almost anything, radically increased in the 21st century. So these are not people who require some kind of structure in order to do their job, because they’re basically just doing it on their own time.
FAW: In your essay, you note that having capabilities of a journalist are more than “the ability to perform the work of a newsroom.” What would those capabilities be aside from, for example, actively gathering information on matters of public concern through interviewing??
NL: There’s a book called “The Elements of Journalism” by Tom Rosenstiel and Bill Kovach that really tries to be precise about the question you asked me. It’s written pre-internet, so it doesn’t get at some of those internet type questions. But let me just take a flier at the question you asked. I want to state this as preferences and not “I know exactly who’s a journalist and who isn’t,” but I’d say this is what I would give preference to. One would be somebody who makes an effort and succeeds most of the time at developing original information and putting it before the public, information that would not otherwise be available any other way. Some things would be completely new. That’s why I like interviewing. Some of it might be notionally public, but not known by the public. That’s like if you file a FOIA request or something like that. But it’s this idea of original information production, an important social function, especially when it’s about public affairs. And then another would be working in some kind of professional or organized setting. It doesn’t have to be a physical newsroom, but a place where you have colleagues who go over your work and try to hold it to standards of both clarity and evidence and so on, as opposed to just you’re a solo act and you push a button and it’s out there. Again, there are wonderful people who do that, but to me, what’s the most deteriorated is the part of journalism that took place in organizations. A third would be a commitment to intellectual honesty. So you’re operating on the basis that you’re going to try to find as much information as you can, and if you have a hypothesis, you’re going to test the hypothesis, and not only look for information or publish information that agrees with your hypothesis. You’re prepared to have your mind changed or your understanding enriched. And if you get contradictory information, you would present contradictory information. I’m working on something in another part of my life with a very smart lawyer it’s really interesting how different his approach is from my approach, because he’s an advocate, so he’s looking for information that supports the case he’s making, and it’s not good professional practice for a lawyer who’s representing a client to say, “By the way, here’s information that essentially is unfriendly to my client’s case.” But for a journalist, my vision is, at least, a journalist should be committed not to absolute neutrality, but to looking for and presenting evidence that contradicts the original hypothesis. If it’s strong evidence, it’s kind of making sure you’re right factually, and making sure that you’re committed to presenting the total picture, not just the information that you want to be true.
FAW: Has the idea of “agenda setting,” as controversial as it is, been gutted as a result of social media, since journalists are no longer the sole purveyors of information?
NL: I think that people probably exaggerate the extent to which the mainstream media kind of had a chokehold on that, even in the days I’m talking about. There were just a lot of other ways people formed their opinions, and there was access to lots of non-journalism information. The very first real academic study of voter behavior was done at Columbia [University] in the 1940 election cycle and it’s called ‘The People’s Choice.’ It’s a study of a county in Ohio, and one of the findings is that the media had very little to do with how people made their political decisions and choices, or even how they got political information. So that’s one thing. To set the baseline correctly and not overstate how much the mainstream media set the agenda, but clearly they set the agenda more than they do now. But I still think that the core useful function of journalism isn’t so much agenda setting, and is this production of original information that’s checked out and is presented in a fair-minded, intellectually honest way. The agenda setting would happen one way or another. And I’m not comfortable saying a group of people should be sort of enshrined as the agenda setters of our society. So what I’ve been focused on for all these years of thinking about this is the potential loss of the more information analytic function of journalists. It requires full-time employment, I think, some degree of training, a professional setting with colleagues, and a certain subset of the activities that people refer to as journalism.