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Meet the (Trustworthy) Press

Any business–and there are no exceptions–won’t survive long if it isn’t trustworthy. How frequently would you return to a store that misrepresents its goods or services to you?

This is especially true of news outlets. In addition to being an industry, the news media in the United States is sometimes called the fourth branch of government because of its unofficial but widely accepted role as watchdog and check on the three constitutional branches of government. Talk about a heightened standard of corporate responsibility! The news media’s word is literally their product, and if we–the consumers–can’t trust their word, then both they and we are screwed.

The core challenge for us as consumers is that the news media isn’t providing a product or service that we can independently verify, like whether a houseplant at Home Depot is dead before paying for it. Instead, we depend on the news media to have good internal quality control and to provide us with accurate information, because none of us have the resources to be their quality control.

That all brings us to the recently filed US Dominion, et. al. v. Fox News Network lawsuit and to my law school constitutional law courses that taught that “freedom of speech” isn’t an absolute defense to say whatever one feels like saying. No matter what any of our opinions are regarding any of the players or actions or aftermath surrounding the events of January 6, 2021, in Washington, D.C., a core issue in this Fox News case will be the First Amendment’s freedom of speech clause. So, let’s talk about free speech and its relationship to a well-functioning capitalism.

America has a difficult intellectual relationship with its First Amendment’s freedom of speech clause. This difficulty springs in large part from the evolving ways the U.S. Supreme Court (U.S. S.Ct.) has wrestled with and written about this right. Americans similarly have a difficult cultural relationship with our right of free speech. This difficulty springs in large part from misinformation, misunderstanding, and missed ethics. (The Free Speech Center at Middle Tennessee State University is an excellent source of news and insights about the First Amendment's freedom of speech clause and related court decisions of consequence.)

Image Credit: Ad Fontes Media

The way to step back from these difficulties begins with correctly recalling and then living into a famous First Amendment line from the landmark U.S. S.Ct. decision of Schenck v. United States, 249 U.S. 47 (1919). Writing for a unanimous Court about how the government must analyze whether certain speech can be judged seditious, Justice Oliver Wendell Holmes Jr. observed by way of analogy how speech that is false and dangerous is not protected speech: “The most stringent protection of free speech would not protect a man in falsely shouting "Fire!" in a theatre and causing a panic” (emphasis added). This sentence is dictum as regards Schenck but fully instructive regarding the limitations to our constitutional right of freedom of speech. You can read the full decision here.

Do you catch the infallible and irrefutable logic of Justice Holmes’s statement? Falsely yelling fire in a theater and causing panic is not and can never be protected free speech. Even journalists, who have heightened freedom of speech protection, aren’t without constitutional guardrails. This is basic, first year law school stuff. Following Justice Holmes's guidance, what happens when the media falsely yells fire in a theater--either intentionally or recklessly because they didn’t verify or denied facts as they emerged--and an ensuing panic by the hearers causes physical damage? Well, when the US judicial system works properly, such speech isn’t protected by the First Amendment for anyone, news outlets or not, no matter how much money is at stake for the parties who did the yelling.

Recognizing that not every news outlet will be on trial in the Fox News lawsuit, the industry as a whole will still be under scrutiny. Caveat emptor can’t reasonably be the standard the media hides behind to shield itself and the words it dispenses. This is because, again, none of us consumers have the resources to fact check and be “buyers that are aware.”

Nevertheless, what can we consumers of news do to identify and protect ourselves from untrustworthy news outlets? For starters, we can learn about the bias of a news outlet by checking it against The Media Bias Chart. The latest version, illustrated with a static image above but interactive if you access that website, combines and shows web, podcast, and TV outlets with respect to political bias (X-axis) and reliability (Y-axis). The Media Bias Chart is the equivalent of an independent third-party verification to get a better understanding of the validity of the news you’re consuming. A well-functioning capitalism–capitalism that is good for everyone–includes cultural aspects that depend on trustworthy news outlets. A lynchpin in transforming toward a better capitalism is consuming and supporting trustworthy news outlets. In support of moving toward well-functioning capitalism, we urge you to support unbiased and reliable (trustworthy) news outlets and put out of business hyper-biased and unreliable (untrustworthy) news outlets. The Media Bias Chart is a tool to help us all in our move toward a better capitalism, and we urge you to use it in choosing the sources from which you get your news.

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