Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Presidency and The Rise of the New Partisan Press
There has been much speculation about whether it will be advantageous politically for the Obama Administration to attempt to define Fox news as not a legitimate news organization.
I'd like to offer a different perspective of what is going on.
American journalism is in the middle of a great transition. Older models of journalism based on local newspaper monopolies and a small number of broadcast news sources have given way to a wide abundance of sources for journalism. This has occurred over the last thirty years; the Internet is the most salient cause, but in fact, as Fox News and Rush Limbaugh demonstrate, the prime movers were cable television and talk radio, respectively.
Telecommunications regulation imposed a fairness doctrine that mapped on to professional journalistic models of objectivity well into the 1980s. After its repeal, talk radio and Fox news became possible. Local newspaper monopolies, which were connected to control over classified advertising cause newspapers to maintain a version of journalistic objectivity even without a fairness doctrine.
In the current age, however, newspapers are in financial crisis, and talk radio and Fox News are ascendant. Models of journalism change with changes in the economic and social conditions that produce them; conceptions of professionalism and the social obligations of the media, in turn, develop alongside and in conversation with these transformations.
We have been witnessing the return of a twenty-first century version of the party presses of the late 18th and 19th centuries. These party presses have no obligation to be journalistically objective, and they are not. They may say, as Fox News does, that they separate out news coverage from editorial writing, as the Wall Street Journal has done for many years. But do not believe it. Fox News is not the Wall Street Journal (or at least, the pre-Murdoch owned Wall Street Journal). It is a party press, and its editorial coverage affects its news coverage, which should be obvious to anyone who watches it for even an hour or so.
This new form of journalism is not, strictly speaking, a "party press" in the early 19th century mold because it is not owned and operated directly or indirectly by a political party. It is, however, a "partisan press," because it is unabashedly partisan in its purposes and its product, including both editorial and news operations. Indeed the two operations increasingly merge in the new partisan press, as they did in the nineteenth century party press. (Fox's protestations that it keeps these two elements of its product rigidly separate cannot really be taken seriously. But these protestations have served an important function. It is how Fox initially introduced itself and legitimated itself within a world dominated by an older conception of journalism and existing professional standards.).
The new party press seeks to have it both ways: to be a party press and to participate in institutions that were designed for a mid-twentieth century version of so-called "objective" or middle of the road journalism. It seeks both to define news and to influence legacy journalistic organizations. As we have seen in recent comments by editors from the New York Times and the Washington Post about how it is important to pay attention to stories being developed by Fox News, the new party press has succeeded in this endeavor. It is driving news coverage ideologically while being able to say with a straight face that is just the same as legacy media that seek to maintain the mid-twentieth century model.
Moreover, several traditional news organizations, interpreting the Obama Administration's response to Fox News as an attack on journalism generally, including mid-twentieth century models, have come to the defense of Fox. This is especially ironic given that Fox represents a new partisan model that is attempting to displace and destroy their cherished model of "objective" journalism. Because traditional journalistic organizations have understood the Administration's push back against Fox an attack on journalism generally, and not as an attack on the newly emerging partisan press, these organizations, by rising to the defense of Fox News are helping to dig their own graves. Why, after all, should an organization like Fox have any incentive to be fair or objective when the Washington Post and the New York Times will fight to the death to preserve Fox's equal right to the special privileges enjoyed by traditional mass media organizations and their special access to politicians?
The issue we face today is how American Presidents will adapt to the rise of the new partisan press. Generally speaking, American Presidents, and politicians more generally, adapt to whatever forms of journalism surround them, trying to use them to their own advantage. The Bush Administration did not face particular difficulties in dealing with Fox News and talk radio, because these media were allies of the Republican Party and the conservative movement. Moreover, the Bush Administration had no incentives to recognize the new media as a new form of party press. Indeed, its incentives were to emphasize that Fox News was fair and balanced. The Clinton Administration did have incentives, this was earlier in the transformation of the media and the Administration had not really figured out the transformation and how to adapt to it.
Barack Obama's Administration is the first Administration that both faces a dominant and hostile new party press and has publicly recognized it as such. It is seeking to change politicians' (and Presidents') relationships to a media that has already changed for better or for worse. It is the first Presidency to recognize and adapt to the rise of a powerful party/partisan press, which, if the current decline of traditional newspapers continues, is likely to be an increasingly dominant form of journalism in this century.
Whether the Obama Administration's current strategy will be successful, it is clearly correct for it to identify and name the changed conditions under which future Presidents will have to operate.
The irony of the Administration's response to Fox News is its declaration that Fox is not a "legitimate" news organization. It is not a legitimate mid-twentieth century news organization. But it is a legitimate nineteenth century news organization and it could well be what twenty-first century news organizations increasingly look like. The concept of "legitimacy" in news gathering and reporting is not timeless and forever fixed; the point is that it is now very much up for grabs. What the Obama Administration is trading on in its attacks is the notion that "legitimate" journalism is "objective" twentieth century journalism, and since Fox is not that, it is not legitimate journalism. Fox, for its part, actually plays into this framing because it insists that it is fair and balanced and objective, when it is anything but. Fox has been trying to have it both ways since it began; the Obama Administration is now calling its bluff, and attempting to redefine it as not legitimate according to a previous (but increasingly challenged) conception of legitimate journalism.
In the long run, it will probably be better for the Administration and future Administrations not to say that Fox and its successors are not "legitimate" journalists, but that they are not actually objective journalists; instead they are members of a new party or partisan press. That model of the press may be legitimate in the twenty-first century, but politicians have no obligation to treat it as they treated an earlier model of journalism. Posted
by JB [link]