Annual Eric Barendt Law Lecture: delivered by Professor Vicki C. Jackson.
Constitutional democracies require an infrastructure of “knowledge institutions,” both inside and outside of the government. All governments require a knowledge base for competent decisions. Constitutional democracies, however, require a knowledge base that is widely shared among the public, whose decisions provide democratic legitimacy to government. “Knowledge institutions” -- which include universities, government statistical offices, and the press -- thus merit special recognition. Some question whether the press should be viewed in law as playing a special role; in the context of campaign expenditure regulation, the U.S. Supreme Court in 2010 rejected “‘the proposition that the institutional press has any constitutional privilege beyond that of other speakers.’” Should the press be distinguished from other speakers or businesses? Does the press have any definable shape, in an age of social media, citizen-journalism, and the consolidated ownership and control of entertainment and news businesses? How the law answers these questions may vary depending on the particular context: for example, whether the issue is a defense to defamation, or the assertion of investigative or testimonial privileges. But such questions cannot be analyzed without a clear recognition of the vital role of the press, as one of several interdependent knowledge institutions that sustain the epistemic base of constitutional democracy.
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