University of California Hastings College of the Law
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First Amendment Disequilibrium
No full textThe Supreme Court has constructed key parts of First Amendment law around two underlying assumptions. The first is that the press is a powerful actor capable of obtaining government information and checking government power. The second is that the executive branch is bound by various internal and external constraints that limit its ability to keep information secret. Judges and legislators have long assumed that these twin forces—an emboldened press and a constrained executive—maintain a rough balance between the press’s desire to uncover secrets and the executive’s desire to keep information hidden. Landmark First Amendment cases such as the Pentagon Papers decision embody this view. Professor Cass Sunstein has described these cases as establishing a “First Amendment equilibrium,” one that arises out of the structural competition between the press and the executive. Today, judges and legislators continue to treat the press and the government as equal combatants in these disputes. Yet whatever equilibrium might once have existed between the press and executive branch has been destabilized. The institutional press has been eviscerated in recent years—hemorrhaging talent, expertise, resources, and legitimacy. Wide swaths of the country now qualify as “news deserts,” lacking any local press presence at all. Public trust in the mainstream media has also plummeted. At the same time, many internal checks no longer constrain the ability of the executive branch to guard its secrets. This combination of a hollowed-out press and an insufficiently checked executive has given rise to a First Amendment disequilibrium, unsettling the foundations of this critical segment of constitutional law. This Article describes the causes and consequences of this disequilibrium and argues that recalibration is essential to fostering effective democratic self-governance