First Amendment, Fourth Estate & Hot News: Misappropriation is Not a Solution to the Journalism Crisis

Abstract

Journalism is a public good. The Framers understood the importance of a free press in a self-governing society and embedded a structural right for freedom of the press in the First Amendment. There is a journalism crisis. Symptoms of the crisis include layoffs of journalists, diminishing content in newspapers and shuttering of newspapers. The rise of online technologies has exacerbated the crisis, mainly by siphoning advertising revenue away from traditional news organizations to free classified advertisement websites such as Craigslist, search engines and myriad other non-journalistic online endeavors. The internet, however, is not the main cause of the journalism crisis. Concentration of media ownership and the influence of advertising revenue on traditional news content are the primary causes of the journalism crisis. Recently, there has been renewed interest in the hot news misappropriation doctrine as a potential solution to the journalism crisis. Not only will this doctrine fail to help resolve the journalism crisis, it will perpetuate a twentieth-century news business model – a model of concentrated ownership dependent on direct advertising revenue. In addition to explaining that hot news perpetuates the journalism crisis, this Article shows that there are constitutional and practical obstacles to the legal viability of the hot news doctrine. The constitutional obstacle is the First Amendment guarantee of free speech. The practical obstacle is the difficulty in proving the utilitarian factor required to establish a hot news claim. The Article concludes by describing alternative solutions to the journalism crisis, including why taxation of all online advertising and using some portion to fund non-profit members of the institutional press is appealing from both normative and pragmatic perspectives.