Freedom of the Press
Freedom of the Press Scores
Key Developments in 2016:
- Journalists covering the campaign of Republican Party presidential candidate Donald Trump were subject to unusually hostile rhetoric from the candidate himself, as well as instances of exclusion from events and intimidation by Trump supporters. Journalists were also bombarded with harassment on social media during the year, often by right-wing users whose remarks were threatening or antisemitic.
- A number of journalists were targeted for arrest while covering protests, including several who faced serious charges in connection with demonstrations against oil pipelines, though in most cases the charges were eventually dropped.
- Political polarization in the media worsened during the presidential campaign, due in part to the emergence of “alt-right” news sites that disseminated highly nationalistic or nativist messages, conspiracy theories, and at times false or propagandistic coverage.
The United States is home to one the world’s largest and most dynamic media sectors, including many outlets with substantial international reach. The country’s traditionally high level of press freedom can be attributed in part to robust constitutional safeguards that have been repeatedly upheld by independent courts. In recent years, the federal government has been involved in a series of controversies over its attempts to identify the sources of leaked information by extending surveillance or legal pressure to the journalists who reported on it. While most states have laws that protect journalists from demands for the identification of sources, no such shield law has been enacted at the federal level.
In 2016, however, the most highly publicized leak case involved documents stolen from the Democratic Party and disseminated to the media via the antisecrecy group WikiLeaks and anonymous online sources, in an apparent bid to damage the presidential campaign of Hillary Clinton. Russian intelligence agencies were allegedly responsible for the effort, and the Russian government was also accused of interfering in campaign coverage by promoting certain stories, some of them false or misleading, through state-owned media and networks of social media accounts.
The alleged Russian activity contributed to a broader increase in media polarization during the year. Trump supporters accused the mainstream media of bias, and the candidate himself used inflammatory language to denounce the press. While many news organizations worked to fact-check politicians’ statements and maintain objectivity, some on both the right and left adopted a more partisan tone, and nationalistic, far-right outlets in particular gained prominence by strongly supporting Trump’s candidacy and attacking his opponents.
These developments accentuated a long-term trend toward the fracturing of the American media audience, with consumers obtaining their news from a vast variety of sources and favoring those that reinforce their political opinions. The trend has featured the emergence of many new outlets, but it has also put pressure on the business models of traditional print and broadcast groups that seek to reach the broadest possible audience with objective reporting.
Legal Environment: 6 / 30
The United States has one of the world’s strongest systems of legal protection for media independence. The First Amendment of the U.S. Constitution provides the core guarantee of press freedom and freedom of speech. While those rights have come under pressure at various times in the country’s history, the independent court system has repeatedly issued rulings that uphold and expand the right of journalists to be free of state control. The courts have also given the press broad protection from libel and defamation suits that involve commentary on public figures, though libel formally remains a criminal offense in a number of states. In 2016, Donald Trump spoke of revising libel laws to favor suits against the media, but neither the courts, nor Congress, nor other leading political figures seemed amenable to such changes.
A high-profile privacy lawsuit in 2016 resulted in the bankruptcy and sale of Gawker Media, whose main website focused on celebrities and media news. The case centered on a sex video of a former wrestling star, but it and other suits against the outlet were financed by billionaire technology entrepreneur Peter Thiel, who said he opposed Gawker’s intrusive reporting on him and others. After a jury ordered Gawker to pay $140 million to the plaintiff in March, the company filed for bankruptcy in June and was sold in August to the media conglomerate Univision, which closed the flagship site. The lawsuit, which was then settled for $31 million in November, raised concerns about the financing of lawsuits against the media by third parties with ulterior motives.
Some 40 states have shield laws that give journalists either absolute or limited protection from orders to reveal confidential sources or other information gathered in the course of their work. The federal government, however, offers no such protection, and efforts to adopt a federal shield law have been unsuccessful to date.
Over the past decade, federal prosecutors have provoked a series of controversies by attempting to compel testimony from journalists in high-profile cases, including some centered on government workers charged with leaking information to the media or lobbyists. While some of the cases were initiated by the Justice Department under President George W. Bush, the administration of President Barack Obama proved even more zealous in pursuing government secrecy cases and issuing demands for information from reporters. Indeed, the Obama administration brought more criminal cases against alleged leakers than were brought by all previous administrations combined.
In 2013, after two cases in which the Justice Department seized journalists’ communications records and sparked widespread criticism, the department issued new guidelines that significantly narrowed conditions under which the government could gain access to records of journalists’ communications with sources. There were no major new cases of federal government surveillance of journalists or of government pressure on journalists to reveal confidential sources in 2016.
However, there were some notable cases involving named sources or pressure from private litigants regarding confidential sources. In September, conservative commentator Glenn Beck settled a defamation suit in which a judge had ordered Beck’s producers to identify two confidential sources for Beck’s claim that a Saudi student was involved in a 2013 terrorist attack in Boston. The student, who was injured in the attack, had sued when Beck persisted in his accusations even after federal authorities had dismissed them. In October, a New York appeals court ruled in October that a New York Times journalist’s notes and testimony were not “critical or necessary” for the prosecution of a murder suspect, quashing an attempt to subpoena them. In December, journalist and filmmaker Mark Boal agreed to give the Army about 10 minutes of recorded interviews with Bowe Bergdahl, a soldier who faced prosecution after leaving his post in Afghanistan and being taken captive by the Taliban; the settlement came after the Army threatened to subpoena 25 hours of interviews.
The right to access official information, with some exceptions, is protected under the 1966 Freedom of Information Act (FOIA). In one of its first acts after taking office, the Obama administration announced a more expansive interpretation of the law than had prevailed under President Bush, favoring the disclosure of documents. Nonetheless, the administration drew criticism for its record on transparency. The AP reported that during its final year in office, the administration set new records for the number of denied requests and failures to locate documents; some 77 percent of requests produced either no files or redacted documents, the news agency found. In June 2016, in a bid to address such problems, Obama signed the FOIA Improvement Act, which codified a presumption of disclosure and reduced procedural barriers for requesters, among other reforms.
Official regulation of media content in the United States is minimal, and there are no industrywide self-regulatory bodies for either print or broadcast media, although some individual outlets have an ombudsman. By law, radio and television airwaves are considered public property and are leased to private stations, which determine content. The Federal Communications Commission (FCC) is charged with administering licenses and reviewing content to ensure that it complies with federal limits on indecent or offensive material in terrestrial broadcasts. While the judiciary has declined to issue a broad ruling on the FCC’s authority to regulate indecency on the airwaves, recent decisions have chipped away at the agency’s power.
Although the government does not restrict political or social engagement over the internet, there are laws banning or regulating promulgation of child-abuse images, exposure of minors to indecent content, dissemination of confidential information, online gambling, and the use of copyrighted material. In recent years there has been mounting criticism from public officials and the general public over hateful messages on Twitter and other internet platforms, cyberbullying, the encouragement of extremism, and invasion of privacy. Thus far, the principal response has been pledges of self-regulation from major internet companies. Bigotry or hate speech in the media in general is not formally regulated, as it typically falls under First Amendment protections if it stops short of direct incitement or true threats of violence, though public pressure has sometimes led to the dismissal of media figures who make remarks perceived as bigoted.
Mass surveillance practices by the National Security Agency (NSA), though directed at foreign targets in principle, have raised concerns about their potential effects on the rights of Americans, including the risk of self-censorship in communications with journalists. In 2015, Congress passed the USA Freedom Act, prohibiting the NSA from engaging in bulk collection of Americans’ telephone and internet records. While civil libertarians said the new law was a step forward from its predecessor, the USA Patriot Act, they expressed disappointment that Congress left much of the government’s surveillance regime intact.
The extent of the government’s authority to access encrypted communications remains unclear. On at least two occasions in 2016, including one involving the investigation into a December 2015 terrorist attack in California, federal authorities dropped court cases aimed at forcing the technology company Apple to create breaches in its own security measures so that they could examine the contents of seized Apple devices; investigators said they had gained access with the help of third parties. Neither case involved journalists, but the broader debate over encrypted communications had important implications for journalists’ work.
In June 2016, the Federal Bureau of Investigation (FBI) enacted new rules governing the circumstances under which agents may impersonate journalists during undercover operations. The Associated Press (AP) and media freedom advocates raised objections after it was revealed in 2014 that the FBI had posed as an AP journalist during a 2007 investigation. However, the Justice Department’s inspector general found in September 2016 that the operation had complied with existing rules, and that the new guidelines represented an important improvement. The AP continued to oppose any such impersonations and said it should be consulted on any related policies.
Political Environment: 12 / 40 (↓2)
While self-censorship among journalists remains relatively rare in the United States and official censorship is virtually nonexistent, an increasing number of news outlets are aggressively partisan in their coverage of political affairs. The press itself is frequently a source of contention, with conservatives and liberals alike accusing the media of bias. The appearance of enhanced polarization is driven, to some degree, by the influence of all-news cable television channels and online-only outlets, many of which display an obvious editorial slant to the right or left. The popularity of talk-radio shows, whose hosts are primarily conservative, has also played an important role in media polarization. Nonetheless, most U.S. newspapers make a serious effort to keep a wall of separation between news reporting, commentary, and editorials. Most terrestrial broadcasters and major news agencies similarly avoid partisan reporting.
Media polarization became a source of controversy during the 2016 presidential campaign due in large part to the emergence of self-described “alt-right” news sites—purveyors of alternative right-wing perspectives on critical issues, including conspiracy theories, outspoken nationalism, and harsh views on women and minorities. As a candidate and as president-elect, Trump interacted with such outlets while accusing the mainstream news industry of bias against his campaign.
Campaign coverage was also affected by reported interference by the Russian government. WikiLeaks and online sources that were later described as fronts for Russian intelligence services released troves of documents that hackers had stolen from the national Democratic Party and the presidential campaign of Hillary Clinton, the Democratic nominee. The documents contained information that was regarded as damaging to the Clinton campaign. American intelligence agencies and some foreign intelligence sources concluded that the hacking had been carried out as part of a Russian government influence operation. Russia was accused of circulating and promoting the stolen documents via state media and networks of social media accounts, and of disseminating “fake news”—deliberately false or misleading news stories—by similar means. Such content was often amplified by media sources in the United States that were openly supportive of the Trump candidacy.
Domestic public broadcasters in the United States are editorially independent. The federally funded international broadcasting system, which includes Voice of America, Radio Free Europe/Radio Liberty, and other regionally focused services, was long overseen by the bipartisan Broadcasting Board of Governors (BBG). In December 2016, Obama signed legislation that would shift decision-making powers to a chief executive appointed by the president and confirmed by the Senate, with the board playing only an advisory role. The measure was aimed at providing more effective leadership, though critics warned that it could harm the outlets’ independence.
The Obama administration came under fire for effectively limiting journalistic access to federal officials, as well as official events. The president held fewer press conferences in his first term than did his predecessors, although he held a substantial number of meetings with small groups of usually friendly journalists. Journalists complained of an environment in which officials are less likely to discuss policy issues with reporters than during previous administrations, noting that “minders” representing the administration often sat in during meetings involving reporters and federal officials.
While foreign journalists are generally able to report in the United States with few impediments, from time to time there are cases of foreign journalists being denied entry to the country, usually on the basis of vague national security rationales.
In recent years there have been few physical attacks on journalists in reprisal for their work. However, journalists covering demonstrations or other breaking news events are occasionally denied access or even detained briefly by police. A number of journalists, documentary filmmakers, and other media workers were arrested or detained, and occasionally roughed up, while covering protests in 2016, especially those related to oil pipeline construction and police shootings of African American civilians. Serious felony charges were filed against the journalists in some cases, but they were typically dropped or rejected by the courts.
The press also faced increased hostility from politicians and the public in the context of the elections, with Trump in particular repeatedly accusing major outlets and individual journalists of lying, and hurling epithets such as “illegitimate,” “disgusting,” “slime,” and “absolute scum.” The temper of his attacks—which observers criticized as an attempt to undermine trust in the media and support for their traditional watchdog role—escalated when the Washington Post, the New York Times, and other outlets launched fact-checking features that revealed a large number of inaccuracies and exaggerations in Trump’s campaign assertions. Journalists were also harassed and intimidated during Trump campaign rallies, sometimes with the encouragement of the candidate or his subordinates, and the campaign temporarily barred some outlets from its events.
Journalists faced abuse on social media in the highly charged political atmosphere, with many bombarded by messages that were obscene, threatening, or antisemitic. A report by the Anti-Defamation League found that those sending antisemitic messages tended to self-identify as Trump supporters, conservatives, or right-wing nationalists, and were often responding to coverage of Trump, though it found no evidence that such attacks were explicitly encouraged by any candidate.
Economic Environment: 5 / 30
Media in the United States are overwhelmingly under private ownership. Nevertheless, National Public Radio (NPR) and television’s Public Broadcasting Service (PBS)—funded by a combination of government allocations and private contributions—enjoy substantial audiences. In addition, cable television providers carry a variety of foreign news sources, including the British Broadcasting Corporation (BBC), Spanish-language services, and state-controlled television channels from Russia and China. There are no significant restrictions on the means of news production and distribution, nor are there excessive fees or taxes associated with media operations. Advertising is allocated through a highly developed, market-based industry.
Traditional media, including print and broadcast outlets, have suffered financially from the increasing popularity of the internet as a news source. The newspaper industry in particular is undergoing a period of decline and readjustment. According to the Pew Research Center, average weekday circulation fell 7 percent in 2015 alone, with gains in digital circulation only partly offsetting print declines. Total advertising revenue among publicly traded newspaper companies fell by nearly 8 percent that year, forcing a continued trend of layoffs.
To compensate, many outlets are increasingly turning to freelance journalists. Most newspapers have rebalanced their operations to emphasize website and multimedia content. A few have dropped print editions entirely, while others publish only a few times a week. Financial weakness has affected outlets’ news coverage as a whole, but especially their ability to conduct investigative reporting and cover foreign news, which require considerable resources. It has also led to increased pressure from advertisers and the growing use of “sponsored content.” To combat the broader decline in investigative journalism, philanthropic foundations have sponsored projects that focus on in-depth coverage of education, criminal justice, and corruption issues. Nevertheless, the long-term drop in staffing and resources among newspapers was likely one factor behind 2016 campaign coverage that was seen as having failed to accurately assess the mood of the country or predict Trump’s victory.
Broadcast networks and major cable news channels remain profitable, despite long-term trends showing a decline in viewership, particularly for local television news. Overall, television continues to enjoy dominance as a medium of news consumption, but most Americans now get their news from a variety of devices and platforms. Approximately 75 percent of Americans used the internet in 2015, and the number and influence of news-focused websites, blogs, and podcasts have grown rapidly over the past decade. Social-media platforms such as Twitter and Facebook have also gained prominence as a leading means of breaking news and delivering the content of traditional news outlets. A 2016 Pew survey found that 62 percent of U.S. adults get some news from social media, and 18 percent do so often. It remains unclear whether such sites and services will be able to build stable business models that are both news-focused and profitable, as many continue to experiment with their strategies and receive significant funding from investors.
Media ownership concentration is an ongoing concern in the United States. While they are prohibited by FCC rules from owning more than one top-four local television station in any one market, many media companies have flouted these restrictions through “joint service agreements,” which allow them to operate stations that are owned on paper by others. The FCC enacted a rule in 2014 to curb the practice, holding that responsibility for selling 15 percent or more of a station’s advertising time amounts to an ownership stake. Consolidation of ownership has been spurred in recent years by a pattern in which media conglomerates spin off their newspaper units from their broadcast assets, and the separate companies then pursue mergers and acquisitions in their respective sectors. In April 2016, for example, the newspaper chain Gannett acquired Journal Media Group, which itself was the product of a 2015 merger; the new firm would control more than 100 dailies across the United States.