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citizen and that each individual citizen has identical preferences

for info about government. Indeed, the premise of this argument is

that the market works because citizens (or customers) do not have

identical preferences and producers exploit that fact by finding

ways to cater to and profit from the varying demands of a diverse

citizenry. An implicit assumption provides the normative

underpinnings for the analysis. Obviously, the full implications of

this assumption cannot be worked out here.

The claim that the market in general "works" shouldn't be

understood as a claim that the information it generates is uniformly

edifying and never distorted. As you know many information producers

pander to the public's appetite for scandal and still others see to

it. These facts do not warrant the conclusion that the market

doesn't work.

More significantly, it seems inconceivable that any system of

government regulation - including a system in which information

producers are liable for "defective" information - could in fact

systematically generate a flow of political information that

consistently provided more citizens with the quality and quantity

that met their own needs as they themselves defined than does the

competition in the marketplace of ideas that we presently enjoy.

This analysis suggests that the workings of the market create

situation in which consumers of political information do not need

the threat of producer liability to guarantee that they are

systematically getting a TRUSTWORTHY product.

But consumers are not the only potential victims of defective

information and market incentives are not always adequate to protect

NONCONSUMER victims from the harm of defective information. Innocent

bystanders, such as pedestrians hit by defective motorcycles, are

sometimes hurt by products over whose producers they have no control

either as consumers or competitors. Persons, who find themselves the

unwitting subjects of defective information, stand in an analogous

position.

For example, a story about sexual assault might be very

interesting for public and might serve well the public interest in

being informed about the police efforts or criminal justice system.

But the victim's name is NOT NECESSARY to its purpose and its

publication both invades her privacy and broke her safety. In cases

like this, it's not so easy to have confidence in market incentives.

The harm from the defect is highly concentrated on the single

defamed or exposed individual.

Now, it's time to ask the major question: Should the press be

permitted to externalize particularized harms? Why should not the

press, like other business entities, be liable when defects in its

products cause particularized harm to individual third parties who

have few means of self-protection at their disposal?

According to the Constitution, defamed public officials or rape

victims should have access to massmedia for rebuttal. As for

everyday practice, the press is not always eager to give space to

claims that it has erred. There are two objections, why the press

shouldn't be responsible for the harm of such kind: accountability

to a more demanding legal standard would compromise its financial

viability and undermine its independence.

These objections are too SELF-SERVING to be taken completely

seriously: The financial viability argument is no more persuasive

when the product of the press harms innocent third parties than it

is when other manufacturers' malfunctioning products harm

bystanders. As press doesn't underproduce information, thus

"freedom" from liability can't be defended as necessary subsidy. The

"financial viability" objection points toward the imposition of

liability for harm.

The need to maintain the press's independence from government

does provide support for the press's objection that liability

threatens them unduly. But it's hard to sustain the claim that

government's censorious hand would lurk behind a rule that required

the press to compensete individuals. It is not obvious that

enforcing a rule that simply prohibited publishing the names of rape

victims would signal the beginning of the end of our cherished press

freedom.

Asking whether the press should be more legally accountable than

it is now for publishing defamatory falsehoods about individuals or

revealing rape victims' names touches a number of difficult, highly

discussed questions. In spite of the fact, by recasting a portion of

the debate over legal accountability and by focusing attention on

the disparity of legal treatment between producers in the

information market and those in other markets for goods and

services, it does seem possible to gain some fresh and possibly

useful insight.

The reality seems to be that, with respect to the quality and

quantity of political information, free competition in the

marketplace of ideas performs admirably, with inventive ways of

overcoming market failure and with flexibility in adapting to a

countless consumers preferences.

In light of this reality it ought not to be amiss to suggest that

when neither the threat of increasing a supposed undersupply nor the

looming shadow of government censorship is implicated, the massmedia

should be liable for egregious errors.

Характеристики

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