Luke Morgan*
Abstract
The First Amendment to the Constitution guarantees “freedom . . . of the press,” an explicit textual recognition of what the founding generation, informed by their immediate historical experience, frequently hailed as the most important political liberty—the “bulwark” upon which all other freedoms relied. From this fertile intellectual and legal soil, cultivated by generous subsidies, a thriving and vibrant institutional press emerged as an undeniable asset to American civil society.
Today, that press is dying. Industry revenues have declined by more than 70% in the last two decades, leaving tens of thousands of journalists without jobs and millions of Americans without meaningful access to quality journalism. The reason for this media apocalypse is simple: America has assigned to the free market the task of producing an adequate supply of a public good, with most of its value lying in externalities, that cannot be made profitable to the extent that it is desirable. As a result, American journalism is in a market-induced death spiral.
This Article argues that, given the Framers’ correct understanding that a sustainable, powerful institutional press is a precondition to representative government, the market-driven collapse of the press is a constitutional crisis.
*Duke University School of Law, J.D. 2019. My thanks to Stuart Benjamin, Joseph Blocher, Deborah DeMott, Rick Edmonds, RonNell Andersen Jones, Nicole Ligon, Jeff Powell, and Sonja West for their generous feedback. I also thank the Duke Law faculty for its support through the Duke Student Scholarship grant and the editors of the Penn State Law Review for their diligence and hard work.
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