Litigation, Legislation and Democracy in a Post-Newspaper America

Abstract

This Article is the first to address a looming constitutional crisis that can be expected to accompany the death of the American newspaper. Although the literature on newspapers’ pending demise is voluminous, it has failed to appreciate a critically important legal dynamic. Scholars and commentators have often assumed that the primary or exclusive harm resulting from the death of newspapers is the expected decline of public-affairs reporting. The assumption is that if other new-media entities can emerge to fully assume this role, the threatened harms to democracy will not occur. This Article demonstrates the falsity of that assumption, offering a comprehensive analysis of the role that newspapers have played as what I term “legal instigators and enforcers.” It argues that news-gathering is only one piece of what newspapers have done to preserve and advance our democracy – and maybe not even the most important piece. Without newspapers at the helm to instigate, coordinate, and finance legal change, much, if not most, of the nation’s important constitutional and statutory open-government law of the last generation simply would not have come to pass. Entities in the new media ecology that are admirably taking over the news-gathering role are, for a number of reasons explored in the Article, currently unable or unwilling to take on the roles of legal instigation and enforcement. With this new analysis, the Article aims to begin an expanded scholarly dialogue on the future of open-government law and the importance of filling the void created by the death of newspapers.

Keywords: FOIA, Freedom of Information Act, Media, Newspapers, Internet, Online, News, Access, Journalism, Litigation, Lobbying

JEL Classification: L82, K10, K19, K41, K00, K39