Martha Minow, Saving the News: Why the Constitution Calls for Government Action to Preserve Freedom of Speech (2021).
Abstract: In Saving the News, Martha Minow takes stock of the new media landscape. She focuses on the extent to which our constitutional system is to blame for the current parlous state of affairs and on our government's responsibilities for alleviating the problem. As Minow shows, the First Amendment of the US Constitution assumes the existence and durability of a private industry. Although the First Amendment does not govern the conduct of entirely private enterprises, nothing in the Constitution forecloses government action to regulate concentrated economic power, to require disclosure of who is financing communications, or to support news initiatives where there are market failures. Moreover, the federal government has contributed financial resources, laws, and regulations to develop and shape media in the United States. Thus, Minow argues that the transformation of media from printing presses to the internet was shaped by deliberate government policies that influenced the direction of private enterprise. In short, the government has crafted the direction and contours of America's media ecosystem. Building upon this basic argument, Minow outlines an array of reforms, including a new fairness doctrine, regulating digital platforms as public utilities, using antitrust authority to regulate the media, policing fraud, and more robust funding of public media. As she stresses, such reforms are not merely plausible ideas; they are the kinds of initiatives needed if the First Amendment guarantee of freedom of the press continues to hold meaning in the twenty-first century.