Book: Saving the News by Martha Minow

Saving the News: Why the Constitution Calls for Government Action to Preserve Freedom of Speech by Martha Minow (2021)

In?Saving the News: Why the Constitution Calls for Government Action to Preserve Freedom of Speech, the inimitably brilliant Martha Minow – recently Dean of the Harvard Law School and now a University Professor at Harvard, which makes her one of the top academics in all the land – takes on a meaty set of subjects including the decline of news media in the face of uncompensated social sharing and re-sharing; the lopsided legal liabilities that do attach to editorial publishers and that equally do not attach to companies like Facebook and Twitter that allow falsehoods to propagate on nearly every topic under the sun; and, perhaps most importantly, what the Constitution and constitutional precedent in American history suggest can and ought to be done about all of these problems now that they are so evident.

In some sense, I have been waiting for this book for a long time.??As you may know, these are areas about which I care a lot and invested a considerable amount of time over the years.?For many years, I was very nearly alone in my perspective.??I am old enough to remember, for example, when the Lights of what was then known as Harvard Law School’s Berkman Center thought that any proposed limitation or revision of CDA 230 or any similar incursion on the unfettered unaccountability of social media was so much pablum and thought crime.??I thought it was obvious from a long time ago that the Facebooks of the world would destroy newspapers, individual lives, the politics of the time, and a lot more than that, and that the management teams of those companies would simultaneously pretend they weren’t doing so and celebrate gleefully as they won revenue battle after revenue battle.?Ten and fifteen years ago, many friends at the nation’s leading law schools, and elsewhere, disagreed with me almost to a person.?Having read?Saving the News, I am glad to see that the right team has, in the end, captured the citadel and presumably converted at least some of its former defenders!

Perhaps the most important achievement of the book is the fact of it: Minow, an unassailable and giant intellect of the Left, removes all doubt that the Congress and the courts _can_ do something about speech and the Internet.?There has been too much handwringing, and this book should (though it won’t) close the debate on whether Anything Can Be Done.?I also appreciated the perhaps obvious — but new to me — observation that newspapers are the only type of private enterprise mentioned in the Constitution.

I think the book has one major deficit.?A lot depends on the bridge Minow seeks to build between the Federal Government’s historical behavior in creating conditions for news media success and the argument for how what is called the Positive First Amendment (what the First Amendment “requires” be done affirmatively) should now appear more fully and come save the day (and the news).?The author does a damn good job of architecting, diagramming, and erecting that bridge as much as the broad evidence she musters will allow.?But the past has so many examples of what might be called government action to “keep the sluices open.”?Among them, we can count, as Minow does, building and subsidizing rails (e.g. discounted postal rates) for information flow; Must Carry; protecting and allocating spectrum for news channels; etc..?By contrast, there are only a few examples of active (and then only partial) funding of news.?And the direct “deep stack” government funding of Internet technology is, at best, a tenuous precedent.?In fairness, the Fairness Doctrine, now perhaps inadequate, has been a set of important guardrails, but it hasn’t yet led to the enticing Awareness Doctrine (which concept is easy to admire in principle).?In other words, I think the book does its level best to accumulate all of what I think is circumstantial evidence for the its central case, but there is no direct hit precedent available.?

Maybe that’s why books like this need to be written: to connect the somewhat tangential dots together into a picture that allows the core claim to be realized in law.?I wonder.?For example, I wonder whether a lot more government-underwritten news coverage is what the doctor should order these days.?I am a child of my upbringing, I think, a Jewish Upper West Side born-and-raised Democrat.?Yet I can’t say I would want the Journalists of Woke Narnia who now dominate NPR to rule more digital and analog airwaves.?And I certainly wouldn’t want Trump’s people, should he or a more sophisticated version of him return to power, to have control over more government-paid spectrum.?Would you??If we have learned one damn thing over the past 24 months, it is that Objectivity and Accuracy tests are heavily under assault from, well, nearly everywhere.?I think we have more reason than ever to fear institutions and what they do with the power they are given.?They often do those things under the cover of Objectivity (or they seek to demolish the premise and promise of Objectivity for ideological reasons).

By the way, as followers of this space may have sorted out for themselves, and as Minow suggests at least partially in her book, the masterstroke here, the one silver bullet that we have to accomplish so very much of what she seeks in?Saving the News, is a major revision of the CDA 230.?I wish she had made even more of this point.?It was always bonkers that the Digital Millennium Copyright Act afforded far more protection to Disney and casual photographers than the CDA 230 permitted to the Public, the Private, and our interconnecting social discourse.?The CDA 230 has, more than any other government device, handed the field over to Mammon.

Recommended.??https://www.amazon.com/Saving-News-Constitution-Government-INALIENABLE/dp/0190948418