The Crisis of the Media Environment

Guest Blogger

For the Balkinization symposium on Free Speech in Crisis and the Limits of the First Amendment.

Eugene Volokh[1]

The 2024 presidential campaign saw a massive disinformation and misinformation campaign, which likely helped bring the current administration into power. Leading media organizations failed to stop it in time. Indeed, some of them were complicit, through inadequate investigation and perhaps even willful blindness, in the misinformation. We thus face an urgent question, raised by the workshop organizers: “How can and should the media system be reformed?”

I’m speaking, of course, of the campaign to conceal President Biden’s mental decline—a campaign that was only conclusively exposed by the June 27, 2024 debate. At that point, little time was left for deciding whether the President should be persuaded to step aside; for the actual persuasion; for the selection of a replacement; and for the replacement’s attempt to persuade the people to elect her.

Had the Administration leveled with the public earlier, or had the media exposed the concealment earlier, there would likely have been time for a full primary campaign, in which Democratic voters could have made their choice about whom to run against Donald Trump.[2] Perhaps that candidate would have been more effective than Kamala Harris. Or perhaps the candidate would have still been Harris, but a Harris who was seen as having more legitimacy with the public. “Democracy Dies in Darkness,” the Washington Post tells us. It appears that the Democratic Party’s prospects died in this particular darkness.[3]

The single most consequential fact of the 2024 Presidential campaign had thus been largely hidden for a long time, including from (and, perhaps unwittingly, by) the media organizations whose job it is to inform us. Indeed, this was a fact not just of immense political significance, but also central to national security: If President Biden was indeed cognitively impaired, that bore on his ability to make decisions as President, not just his ability to be re-elected.

When, for instance, Trump and Vance spread unfounded rumors of Haitian immigrants eating cats and dogs, the media rightly blew the whistle. But when some media outlets tried to point out the evidence of Biden’s likely incapacity, others didn’t pick up on the investigation—and, indeed, sometimes pooh-poohed the investigation.

As late as mid-June 2024, the White House and many of its supporters characterized videos of Biden apparently freezing up and seeming confused as “cheap fake” disinformation created by his enemies.[4] Indeed, as Nate Silver has noted, “some coverage endorsed the White House party line, particularly in its tendency to characterize claims about Biden’s acuity as ‘misinformation.’”[5] Only Biden’s televised debate performance on June 27, 2024 made it impossible to deny there was something badly wrong. It seems likely that many of the supposed “cheap fakes” actually accurately captured Biden’s cognitive slippage, especially since the slippage apparently went back a good deal before the debate.[6]

And even if some particular videos had indeed been disinformation from his enemies, the fact remains that the media failed to adequately identify the disinformation from his friends.[7] Indeed, isn’t it shocking that so many White House reporters appear to have learned of Biden’s decline thanks only to the nationally televised debate and not to their investigative journalism?[8]

Of course, reaching the truth on this question wasn’t easy. Biden insiders apparently tried hard to conceal the facts (that’s the disinformation part).[9] And indeed it’s not surprising that people who are both personally loyal to a President and rely on the President’s success for their ongoing careers would want to conceal such facts. In our fallen world, we can’t expect much candor from political insiders. And I expect most journalists sincerely believed the reassurances they were getting from the insiders.

But getting sincerely duped isn’t a great professional mark for a journalist.[10] Their job was to dig and find out—before things became evident, not after (and indeed some indications of Biden’s decline were indeed evident for some time before the debate[11]). Alex Thompson, the coauthor of Original Sin, elaborated on this problem:

“I had one conversation with someone, this was after the election, while we were reporting this book, and this person said, ‘Listen, yes, we deserve blame for X, Y, Z. We were hiding him. We were.’ But this person also sort of got in my face, and they said, ‘Listen, the media deserves some blame, too.’ Like we were sort of amazed at some of the stuff we were able to spin and get on,” he said.

Thompson admitted there was truth to what the person was saying about the media and its lack of skepticism about Biden’s administration.

“They’re just like, ‘You guys should not have believed us so easily.’ And I thought that was like a really interesting, but I also think that’s true,” he said. “I think the media, . . .  in a lot of ways, was not skeptical enough and did not remember the less[on] that, they do it to different degrees, but every White House lies.”[12]

Indeed, to the extent that the media’s credibility has declined over recent years, such failures of investigation seem likely to only exacerbate this decline:

Undoubtedly, the White House wanted to keep this fact [of Biden’s decline] under wraps until Biden was safely over the finish line in November. But media organizations that participated, even unwittingly, in this farce have not only made a subsequent Democratic administration far less likely—they have profoundly undermined their own integrity.[13]

* * *

How could this happen? I hope we will learn more about this in the years to come. But at this point, at least a first cut—informed by our shared knowledge of human nature—is that many in the media likely didn’t dig hard because they didn’t really wanted to uncover things.[14] It isn’t controversial, I think, that most in the mainstream media much preferred President Biden over his challenger, Donald Trump.[15] Indeed, I agree they had good reason to dislike Trump. Certainly Trump himself had done much to stoke that hostility.

“Biden is cognitively impaired” was a standard talking point on the Right. So long as Biden was the nominee, that impairment, if demonstrated, would help Trump.[16] (As I’ve argued, if knowing of the impairment helped Democrats replace Biden with a better candidate, the knowledge might have hurt Trump, but that would have been a less direct chain of causation.) It’s human nature to accept stories that fit one’s political preferences than to challenge them. A thought experiment: If the sitting President in 2024 had been a Republican—whether Trump or, say, an older Ron DeSantis—would the media have acted the same way they did? Or would they have worked harder, dug deeper, and uncovered the truth earlier?

Yet of course institutions should be designed to counteract the flaws generated by human nature while working within the constraints created by human nature. (That knowledge was old when Madison was young.) This is true of media institutions as well as governmental ones. There need to be mechanisms to keep reporters’ and editors’ inevitable ideological predilections from turning into ideological blinders and ideological blunders.

Of course, it’s much easier to identify the problem than a suitable solution. One can imagine, for instance, newspapers deliberately seeking out reporters and editors with many different ideological beliefs, hoping that colleagues will fill each others’ blind spots (or, in collegial conversations, help each other identify their blind spots). But this may be hard to implement; and, as with preferences based on race and sex, preferences based on politics may be challenged as leading to hiring based on ideology rather than merit. (They may also be defended, as with preferences based on race and sex, as a tool for fighting subconscious bias that keeps meritorious candidates from being fairly considered.) Indeed, hiring that considers applicants’ ideological beliefs may violate some states’ laws that limit employment discrimination based on political ideology or party affiliation,[17] just as hiring that considers applicants’ religious beliefs may violate bans on employment discrimination based on religion.

Newspapers might also return to prohibiting reporters and editors from publicly opining on controversial issues. Of course, realistic readers will recognize that reporters may still be biased. But taking a public stand on an issue may increase such bias: If one has publicly endorsed a position, it might become harder to write fairly about evidence that instead tends to support the rival position. Few of us like writing something that suggests that we were mistaken in the past, or that our critics can interpret as making such a suggestion.

Again, though, in some jurisdictions such public neutrality rules for newspaper employees may violate state employment statutes. One state court held (by a 5–4 vote) that those statutes themselves violate the First Amendment when applied to newspaper reporters or editors.[18] But in AP v. NLRB (1937), the U.S. Supreme Court held (also 5–4) that federal labor law, which bans discrimination based on union membership, didn’t violate the Associated Press’s rights to select reporters or editors.[19]

Likewise, one can imagine newspapers and magazines deliberately courting a broad ideological mix of readers—not just for the extra revenue, but also to commit themselves to having a base that they will need to be seen as treating fairly. A publication that has many readers on the left, right, and center might feel more pressure to be fair and careful to all sides. Of course, it may be hard these days to acquire such a broad reader base. And there’s always the danger that concern about reader reactions may press a newspaper to avoid controversial topics altogether, rather than to try handling them fairly.

Finally, newspapers can just try to recommit themselves to objectivity, fuzzy as the term may sometimes be. (Many commentators have expressly taken the opposite view.[20]) In their news coverage, they may recommit to discussing the best arguments on both sides of contested issues. In choosing what to cover, they may try hard to see what both sides of the aisle view as especially important. On their editorial pages, they may avoid a party line, either instituted top down[21] or by staff revolts.[22] Instead, they may adopt the policy that whatever ideas are shared by at least substantial minorities of the public should be seriously covered, even when editors think that one side is obviously wrong.

Again, though, that’s easier said than done (and it’s not even that easily said). It will inevitably require hard choices that will leave many observers skeptical about the media organization’s fairness —e.g., which sides of a multi-sided issue should be covered, which topics are important enough to cover, which positions are such outliers that they can be set aside, how to allocate scarce space and attention. And it may not do much to solve the problem we began with, which is the ability of media organizations to be massively duped by the side they sympathize with.

Thus, these solutions are likely to be far from perfect. The cures may even be worse than disease.

But there is indeed a disease, “a profoundly broken media system” (to quote the workshop organizers). This system is one that the public has good reason to distrust. Its flaws undermine the media’s ability to check government malfeasance. It may have been so captured by the desire to #Resist one movement that it failed to resist the disinformation spread by another. And it may thus have ended up helping the very candidate and movement that it had (understandably) viewed as dangerous.

Eugene Volokh is Senior Fellow, Hoover Institution, Stanford; Professor of Law Emeritus, UCLA. You can reach him by e-mail at volokh@stanford.edu.