Beyond Democracy: How a Free Press Supports the Rule of Law

Abstract

Widespread agreement has existed for centuries that a free press is essential to democracy. But legal scholars have spent almost no effort thinking about why else we might need a free press. This article attempts to widen the aperture. It argues that as the free press is essential to democracy, it is just as essential to a separate value: rule of law. Democracy and rule of law are related, but they are not the same. Democracy requires that the people govern themselves. Rule of law, separately, rests on the principle that no person is above the law.

Recognizing and investigating the connections between the free press and the rule of law is essential right now. It can help us discern how the press can best serve as friction against the erosion of both rule of law and democracy. And it can likewise serve as a revitalizing force for the free press. Even more fundamentally, it can prompt us to do the necessary work of considering what we want the free press, the rule of law, and democracy to be.

This Article describes how press functions that the Supreme Court has said are vital to democracy are likewise vital the rule of law. They include watchdog, educator, and facilitator of the public square. Investigating the way in which the press plays these roles in support of the rule of law yields new understandings of how the press and rule of law may work best. For example, this Article argues that to preserve rule of law, the press needs to curb its watchdog role at times—an idea anathema to most journalists. It also argues that the press’s educative function is not simply a top down one—as per conventional wisdom—but that the press actually injects community norms, values, and ideas into the rule of law.

Beyond describing how these traditional free press functions support the rule of law, the Article describe two press roles never fully recognized by the Court—that of curator and empathy-builder. Both roles also play a key part in supporting rule of law.