Platforms and the Fall of the Fourth Estate: Looking Beyond the First Amendment to Protect Watchdog Journalism

45 Pages Posted: 2 Jan 2019 Last revised: 19 Apr 2019

See all articles by Erin Carroll

Erin Carroll

Georgetown University Law Center

Date Written: December 12, 2018

Abstract

Journalists see the First Amendment as an amulet, and with good reason. It has long protected the Fourth Estate—an independent institutional press—in its exercise of editorial discretion to check government power. This protection helped the Fourth Estate flourish in the second half of the twentieth century and ably perform its constitutional watchdog role.

But in the last two decades, the media ecology has changed. The Fourth Estate has been subsumed by a Networked Press in which journalists are joined by engineers, algorithms, audience, and other human and non-human actors in creating and distributing news. The Networked Press’s most powerful members are platforms. These platforms—companies like Facebook, Google, and Twitter—shun the media label even as they function as information gatekeepers and news editors. Their norms and values, including personalization and speed, stymie watchdog reporting.

The Networked Press regime significantly threatens watchdog journalism, speech that is at the core of the press’s constitutional role. Yet, limited by the state action doctrine, the First Amendment cannot shield this speech from a threat by private actors like platforms. Today, the First Amendment is insufficient to protect a free press that can serve as a check on government tyranny.

This article argues that we must look beyond the First Amendment to protect watchdog journalism from the corrosive power of platforms. It describes the limits of the First Amendment and precisely how platforms threaten watchdog journalism. It also proposes a menu of extra-constitutional options for bolstering this essential brand of speech.

Keywords: First Amendment, Media, News

Suggested Citation

Carroll, Erin, Platforms and the Fall of the Fourth Estate: Looking Beyond the First Amendment to Protect Watchdog Journalism (December 12, 2018). Maryland Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3300966 or http://dx.doi.org/10.2139/ssrn.3300966

Erin Carroll (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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