Legal Remedies for Saving Public Interest Journalism in America
Gamse, Nick, Northwestern University Law Review
To say that newspapers have fallen on difficult times would be a tremendous understatement. As the vultures have started to circle, telling headlines have captured the state of the industry. Business Insider dubbed 2009 "the year the newspaper died."1 The New Yorker proclaimed that the news business was going "out of print."2 NPR published an article, Chronicling the Death of American Newspapers.3 The plight of the newspaper industry has received so much coverage that "almost everyone knows the economic foundation of the nation's newspapers, long supported by advertising, is collapsing, and newspapers themselves, which have been the country's chief source of independent reporting, are shrinking?literally."4 This trend should be alarming not only because of the obvious job losses but also because of the broader repercussions for American democracy.
In this Comment, I show that the government has a policy imperative to protect American public interest journalism, which is withering as a direct result of the newspaper crisis.5 Such a relationship between the government and press has clear precedent and purpose. As the Framers recognized,6 a free press helps expose corruption and gives people the information they need to be active citizens.7 Notably, newspapers are more effective at achieving these twin pillars of public interest journalism than other news media. This is largely because newspaper reporters are responsible for producing the vast majority of original journalism content in this country, feeding derivative news media like the Internet, radio, and television. 8
This Comment is divided into four Parts. Part I describes the rapid decline of the newspaper industry. Part II explores newspapers' unique role in American democracy and discusses the implications of their shrinking budgets for public interest journalism. Part III reasons that government support for public interest journalism is necessary and appropriate. Part IV discusses existing proposals for government involvement. Various scholars have proposed a range of legal remedies that Congress could use to help protect the public's interest in newspapers. The proposals can be grouped into three primary categories. First, Congress could expand newspapers' intellectual property rights to better protect them against online aggregators who appropriate their work. Second, Congress could fund them through direct spending, or a newspaper "bailout." Third, Congress could extend a tax subsidy to newspapers.
The Comment concludes by advocating for a tax subsidy for public interest journalism. Such a subsidy would effectively lower subscription costs, encouraging public interest news consumption. It would also make consumers more aware of the societal value of public interest journalism, decreasing their likelihood of accepting other news products as substitutes. Finally, a tax subsidy could help usher in a new era of news production that would increasingly entrust the public's interest in journalism to nonprofit news organizations.
I. WITHERING NEWSPAPERS
The financial state of the newspaper industry is indeed bleak. Print newspaper revenue dropped by 23% in 2007 and 2008, and by more than 25% in 2009.9 Although these changes have come at a time of broad economic turbulence, industry experts believe that newspaper troubles are systemic rather than cyclical and will persist even after the economy improves.10
A precipitous decline in print circulation is largely responsible for newspapers' revenue problems. In 2008, for the first time in history, more people got their news for free online than paid for it in paper form.11 Print circulation among daily newspapers decreased 9% from 2006 to 2008 and then experienced an even sharper drop of 10.6% in 2009.12 These circulation figures are critical because they drive advertising rates,13 and advertising spending comprises the bulk of newspaper revenues.14 Total print newspaper advertising spending has decreased in every quarter since the first quarter of 200715 and nearly 50% in total from 2007 through 2009. …