Freedom of the press in America is at a critical crossroads in a number of ways, but one way stands out as most fundamental: the stark impact of the current debate over “Post-Truthism.” Press freedom jurisprudence has long been structured around the concept of an audience member’s search for truth in a marketplace of ideas. But social science research increasingly suggests that individual information consumers are in fact often driven by emotion, political identity, and the need for cognitive shortcuts, and that they may not possess the truthseeking, rational processing, or information-updating capabilities that the United States Supreme Court assumes. The individual search for truth in the marketplace of ideas, some have suggested, is not happening—or at least not happening in the way the Supreme Court’s press jurisprudence has envisioned.
Whether this divide between jurisprudence and reality actually exists—and what to do about it if it does—are pressing questions for both the courts and the media, made all the more pressing as the changing media landscape and the modern political climate exacerbate some components of the Post-Truthism critique. The concern for some is that if press freedom has rested on flawed assumptions about the nature of press audiences, the growing awareness of those limitations may undermine the marketplace-of-ideas justification for press freedom and its associated press protections.
This Article investigates both questions. It finds that the factual premise—that the Supreme Court has made erroneous assumptions about the motivations and behaviors of information audiences—is accurate but argues that the theoretical consequence of this gap is just the opposite of what some have suggested. Instead of undercutting the rationales for press protection, this wider modern understanding of the information-processing and truthseeking limitations of individual press consumers in the marketplace of ideas actually underscores the need for protection of the press as a market-enhancing institution. This market enhancement can introduce efficiencies by reducing information-collection costs, information-consumption costs, and information-transaction costs. This Article argues that a fuller appreciation of this dynamic can provide helpful insight into why the Constitution might provide unique Press Clause protections and into some of the functions that would qualify an institutional actor as “the press” for purposes of that constitutional protection—an identification process that will be increasingly vital as information consumers shift from legacy media to new forms of content delivery. The Article probes these functions and offers a conceptual framework for granting Press Clause protection to market-enhancing entities that compensate for the inherent shortcomings of individual information consumers.
Part I describes the epistemological phenomenon of Post-Truthism and the concerns it has raised about the validity of the marketplace-of-ideas metaphor in the press freedom context.
Part II compares the Supreme Court’s characterizations of the behaviors and capabilities of press audiences in the marketplace of ideas with social science data about the actual behaviors and capabilities of those audiences. Part II.A identifies the three most foundational assumptions made by the Court—what we label the Truthseeking Assumption, the Rational-Processing Assumption, and the Updating Assumption—and then Part II.B describes the evidence that these assumptions are seriously flawed.
Part III questions the theoretical response to this gap between assumption and audience reality, pushing back against the conclusion that a greater awareness of audience limitations within the marketplace of ideas should erode the foundation of press protection. It describes the ways that press-audience limitations create compelling reasons to protect the marketplace-enhancing functions of the press and urges that the ongoing effort to imbue the Press Clause with substantive meaning take these compensating functions into account.
In the Conclusion, we argue that the protection-of-press-functions approach allows the Court to acknowledge the flaws of individual information seekers without abandoning the aspiration of fact-based, public reasoning and that it will provide a clear path forward for strengthening the press institutions that promote and support those important norms of informed public discourse. This doctrinal guidance is critically important in the changing media landscape, as a functional definition of the press becomes increasingly valuable.