Legal Foundations for Non-Reformist Media Reforms

Elementary democratic theory holds that self-governance requires a free—and, by implication, a functional—press system. However, today, much of the American press infrastructure is being dismantled by a deeply systemic market failure, with little hope for self-correction. While significant democratic deficits have always existed in American journalism, it is becoming glaringly obvious that a purely commercial press system cannot provide for a multiracial democratic society’s basic information and communication needs. At the time of this writing, the United States has lost nearly one-third of its newspapers and two-thirds of its journalists since 2005—a profound structural crisis that promises to significantly worsen in the coming years. Providing universal public service journalism to everyone requires ambitious, long-term, structural reforms—most likely involving the creation of an entirely new public media system. With an eye toward such a lofty objective, this chapter aims to articulate a positive-rights paradigm that marshals contemporary, historical, and international legal frameworks to argue that government should have an affirmative duty to guarantee meaningful access to news and information for everyone.