Lies, Damned Lies, and Journalism: Why Journalists Are Failing to Vindicate First Amendment Values and How a New Definition of “The Press” Can Help
This Article identifies a specific problem—journalists who fail to provide the public with the accurate information needed to foster informed public opinion—and offers a specific solution: defining “the press” to provide protections and prestige only to those whose work actually advances First Amendment values. American journalistic norms facilitate lying by politicians, candidates for office, and other public figures. Because many journalists are committed to the ideal of balance above truth, they are often incapable of calling out lies. Instead, they create a false equivalence by suggesting there are two sides to every argument. I call this the “balance trap” problem—journalism that insists on presenting, without comment, two sides to every story, even when one side is demonstrably false. Politicians and other public figures are able to exploit this reality by making false statements with impunity, secure in the knowledge that journalists will not expose their deceptions. This Article does something new by describing a definition of the press that is based on specific examples of work journalists are doing and proposing a way to assess whether this work advances First Amendment values of truth and democratic competence. In addition, this Article does something new by identifying a central role for journalists themselves in defining press membership. Other scholars who believe that members of the press deserve specific protections seek to define press membership primarily through courts or legislatures. Ultimately, the goal of this Article is to give meaning to Oliver Wendell Holmes’s assertion that “the real justification of a rule oflaw is that it helps to bring about a social end which we desire.” Replacing balance trap journalism with journalism that gives Americans the accurate information they need to make informed decisions is a highly desirable social end. If we want to have a better press corps, we must begin with a definition of the press that has the potential to solve the balance trap problem by recognizing as members of the press only those journalists whose work truly advances First Amendment values.