Fourth Estate Anxiety and Investments in Free Speech Ellen P. Rutgers University School of Law Institute for Information Policy & Law

1. Frame current debate about composition and function of Fourth Estate 2. Identify policy implications 3. Identify unexplored 4 th Estate function

The Fourth Estate Disagreement on identity of first three estates o Clergy, Nobility, Commons (Carlyle) o Public Intellectuals, Economic Elite, Government (Dutton) o Executive, Legislative, Judicial (Blasi, Stewart, J.) And meaning of Fourth Estate o Press as part of political establishment (Cook, Cater) o Independent press institutions that hold other 3 estates to account (dominant view). Caveats about compromised effectiveness…. Watchdog or lapdog … Keller v. Greenwald

Fourth Estate Characteristics Impartial and/or factual, verified Independence (from owners, sponsors) In the public interest, news judgment, “watchdog” role “Responsible” publication,entailing self-restraint and compromise Influence by virtue of credibility and platform scarcity Professional

Whither the 4 th Estate? Disciplinary Questions Who gets to be called journalist? Issues of professionalism, journalism education, ethics, funding, affiliation/influence, activism Focus on (1) newsgathering and publication norms and (2) news product: Objectivity, independence, methods of verification, transparency, use of editors, use of the crowd, “sage on the stage” or “guide on the side”

Legal Questions: Foreground Where definitions of journalism/media matter: Regulation/self-regulation Reporters’ testimonial privileges Media exemptions from otherwise applicable law Common law standards of liability Focus on newsgathering mechanics: intent (to gather information for purpose of making public) and/or affiliation (with professional news entity) or commitment (time spent)

Legal Questions: Background First Amendment “Congress shall make no law abridging… the freedom of speech or of the press” Post-Wikileaks prosecutions under Espionage/State Secrets Acts Media policy reforms – pluralism policy Public media reforms – is funding needed and for whom? Net-neutrality and other regulation of platforms – what is the constitutional status of digital intermediaries? Copyright

Fourth Estate Bulls: Functions of the Fourth Estate have been broadly distributed through the network

Berkman Center, Mapping the SOPA/PIPA Debate (2013) Networked Fourth Estate Yochai Benkler

Fifth Estate William Dutton

Fourth Estate Bears : Functions of the Fourth Estate still depend largely on a professional press of a particular complexion

Committee to Protect Journalists (2013) CJR (2009) FCC (2011) Tow Center, Columbia (2013)

Are Functions Distributed Through Network? Bulls say Yes: more news from more sources; production of trust and verification in new ways news agenda emerges more democratically with new nodes of influence Bears say No: less investment in accountability journalism; polemic dominates; increased confusion about source and credibility of info. “churnalism” and virality do not produce news agenda that surfaces the important; fractured attention; loss of access and power

What Bulls Fear Definitions of journalism or Fourth Estate that privilege some speech/speakers Non-neutral networks that privilege some speech/speakers Algorithmic affordances that privilege some speech/speakers Government censorship and surveillance of network

What Bears Fear Economic pressures on big media that reduce investment, independence, quality Policy choices that reduce pluralism Chilling of journalistic speech through subpoenas, surveillance, threatened or actual prosecutions

Different concerns reflect different discourse values Bulls… “democratic legitimization” through public discourse: “Much of first amendment doctrine protects speech because what’s important is our freedom to speak, not what’s said. This legitimizes our democracy and creates public opinion.” (Dean Robert Post) Bears…”democratic competence” through expert knowledge: Expert knowledge is “not to be determined by the indiscriminate engagement of all… [but by] disciplinary standards of verifiability, reproducibility, falsifiability, and so on.”

Cross-cutting impacts Net neutrality can remove source of revenue for news where ISPs are vertically integrated “Non-neutral” algorithms can benefit traditional news (Facebook and Twitter adjustments) Strong copyright protections for news hurts the networked fourth or fifth estates If everyone is Fourth Estate, no one is (Citizens United)

Another Aspect of Fourth Estate Power Democratic Advocacy

New York Times v. Sullivan, 1964 New York Times v. United States, 1972

Salience Content Platforms/Services Infrastructure