The Lawfare Podcast

Lawfare Archive: Lidsky and Koningisor on First Amendment Disequilibrium

Date: December 28, 2025 (archived episode from March 6, 2024)
Host: Matt Gluck
Guests: Prof. Larissa Lidsky (University of Florida), Prof. Christina Koningisor (UC San Francisco)

Episode Overview

This episode explores the “First Amendment Disequilibrium” identified by Profs. Larissa Lidsky and Christina Koningisor. They argue that recent shifts—including the press’s decline, erosion of post-Watergate reforms, and increasing executive secrecy—have upended the balance that once allowed the press to serve as an effective watchdog over government. These changes have left journalists increasingly unable to extract vital information or check executive power. The conversation addresses the historical foundations of press freedom, how equilibrium has collapsed, and what judicial, legislative, and institutional reforms might restore effective checks and balances.

Key Discussion Points & Insights

1. Framing the First Amendment Disequilibrium ([03:47])

• Premise: Foundational Supreme Court decisions on the First Amendment assumed a “powerful press” and “constrained executive” ([03:47], Lidsky).

• Reality Today: That balance no longer exists; the law must adjust to a new power dynamic.

  "The US Supreme Court...assumed a state of affairs that no longer exist...a powerful press...and a constrained executive branch...This power relationship no longer exists and the law needs to respond accordingly."
  —Larissa Lidsky [03:47]

2. Historical Foundations: Press Power and Legal Assumptions

a. The Earl Caldwell/Branzburg v. Hayes Case ([05:31])

• Context: Earl Caldwell, a pioneering NYT reporter, refused FBI demands and a later grand jury subpoena for information about the Black Panthers. His case, bundled with others, reached the Supreme Court.

• Outcome: Court denied a constitutional privilege for journalists, assuming the press had extralegal means to fight back.

  "The Court repeatedly said, you, the press, don't really need this protection. You're really powerful...you can kind of fight these battles through these other mechanisms."
  —Christina Koningisor [07:10]

b. Why the Equilibrium Took Shape in the 20th Century ([07:59])

• Delayed Application: The First Amendment was seen as binding only the federal government until the early 20th century, which delayed substantive press protections.
• Golden Age Factors: Investigative reporting, Vietnam, Watergate, and civil rights crises prompted judicial engagement and new reforms ([09:30]).

3. What Created Press Power and Government Restraint? ([09:30], [11:25])

• Press Resources: The institutional press was financially robust and held public trust ([09:30]).
• Executive Constraints:
  • Transparency and oversight laws: FOIA (1966), Government in Sunshine Act (1976), state “sunshine” statutes ([11:25]).
  • Inter- and intra-branch checks: Congressional intelligence committees, FISA, DOJ voluntary guidelines.
  • Sometimes local agencies simply disbanded problematic intelligence units ([11:25])—a different form of restraint.

4. How Legal Doctrine Reflected This Equilibrium

a. Pentagon Papers Case ([14:41])

• Assumption: That once the press obtained information, it was "fair game" to publish; the government could not retroactively tip the balance.

  "Once the press had the information, it was fair game to publish it. And they couldn't ask the courts to weigh in and tip the balance towards the Executive..."
  —Larissa Lidsky [14:41]

b. Branzburg v. Hayes: Four Key Assumptions ([18:18])

1. The press could protect itself by publicizing government overreach.
2. Marginalized groups needed press coverage as a voice.
3. Robust internal executive constraints (e.g., DOJ guidelines) would reign in excess.
4. The cost of aggressive prosecutions would deter government overreach.

5. Causes and Manifestations of Disequilibrium

a. Decline of the Institutional Press ([21:38])

• Financial crisis, mass layoffs, and loss of expertise (“golden age” to “news deserts”).

• Public trust in the press has plummeted.

• Rise of non-institutional media (Substack, whistleblowers) can complement but not substitute for systematic, local news gathering.

  "The press simply can't protect its prerogatives to the extent it did back in...the golden age of the institutional press."
  —Larissa Lidsky [23:14]

b. Weakening Executive Branch Constraints ([32:42])

• Congressional and legislative oversight is ineffective; Congress cannot reliably access classified material (“deep secrecy”).

• Courts have cut back on FOIA, operate in secret (e.g., FISA Court), or defer to executive claims.

• DOJ guidelines are voluntary and often ignored.

  "Many of [the] constraints...either never worked or have crumbled over time or proven flawed in some other way." —Christina Koningisor [33:15]

c. Changing Leaks Landscape ([35:36])

• Technology enables mass leaks (WikiLeaks, Snowden), breaking the prior “norms” of leak-handling, which emphasized negotiation between press and state.

• Crackdown began in the Obama administration and intensified under Trump, including threats to prosecute journalists under the Espionage Act.

  "President Obama engaged in three times as many leak prosecutions as all previous administrations combined. President Trump continued this trend..."
  —Christina Koningisor [37:39]

d. Erosion of Statutory Access Rights ([40:25])

• FOIA and state public records laws designed for an active, resourced press; as the press contracts, enforcement vanishes—many state statutes are untested in court.
• The absence of an enforcement entity leaves transparency rights hollow.

6. Proposed Remedies and Reforms

a. Judicial & Legislative Pathways ([42:29])

• Supreme Court could reinterpret the press clause, but faces the challenge of defining “the press” in a fragmented media landscape.

• Federal statutory shield law (already 40 states plus DC have them), stalled repeatedly in Congress.

• Codify DOJ guidelines on subpoenas into law.

• Strengthen whistleblower protections.

• FOIA reform, including better funding for requesters and enforced compliance.

• Public funding for journalism, especially local, to rebuild oversight capacity.

  "I never thought I would say this, but some public funding, particularly at the local level for journalistic enterprises..."
  —Larissa Lidsky [45:56]

b. Executive Branch Self-Reform ([46:23])

• Reduce overclassification and accelerate declassification.
• Reform pre-publication review requirements for former intelligence officials.

c. Innovations Within the Press ([49:12])

• Growth of non-profit and cooperative journalism models (e.g., ProPublica, Vermont Digger).

• Direct government support: grants, prizes, and tax relief for news organizations, following international models.

  "The US is really an outlier here. Most other Western democracies provide much more robust government support for the press."
  —Christina Koningisor [50:33]

d. Addressing Drawbacks of Government Support ([51:21])

• Concerns over government influence on subsidized journalism: evidence mixed; US public broadcasters like NPR/PBS have shown success with safeguards, but the tension always exists.

7. Critiques, Nuance, and the Path Forward

a. Is the “Golden Age” Equilibrium Worth Restoring? ([52:31])

• The equilibrium model is partly idealized; the reality was always more complex and sometimes complicit, not just adversarial. Still, Supreme Court doctrine embedded that assumption and the lack of it today has real legal and political effects.

• Restoring the exact past is neither possible nor desirable—future oversight institutions will, and should, look different.

  "Democracy needs some institution to play the role of the press...It's not going to look like it used to look. It will never look like that again. Nor should it again. The golden age wasn't so golden."
  —Larissa Lidsky [56:19]

b. Signs of Improvement: What to Watch For ([54:41], [56:16])

• Legal reforms for source protection, FOIA strengthening, or leak protections.
• Most urgently: experiments and investments (public and private) to revive local news oversight (“news deserts”).
• A robust, innovative press is essential for self-government.

Notable Quotes & Memorable Moments

• On the Enduring Need for Oversight:

  "Democracy needs some institution to play the role of the press in extracting information that we as citizens can use to engage in democratic self governance."
  —Larissa Lidsky [56:40]

• On Public Funding for Journalism:

  "I never thought I would say this, but some public funding, particularly at the local level for journalistic enterprises, so that we have routine oversight of how state and local governments operate."
  —Larissa Lidsky [45:56]

• On Legal Fictions and Supreme Court Doctrine:

  "The court assumed it did...the assumption got embedded in the law whether or not it was an accurate description of the reality."
  —Christina Koningisor [40:46]

Timestamps for Major Segments

• 03:47 – First Amendment disequilibrium argument overview
• 05:31 – Earl Caldwell case and press privilege
• 09:30 – Why the press was powerful in the “golden age”
• 11:25 – Legislative/executive reforms constraining secrecy
• 14:41 – Pentagon Papers case and legal equilibrium
• 18:18 – Four assumptions in Branzburg v. Hayes
• 21:38 – Decline of the institutional press
• 32:42 – Weakening of executive branch constraints
• 35:36 – Changing landscape for government leaks
• 40:25 – Press’s statutory rights of access
• 42:29 – Proposed (and feasible) legal reforms
• 46:23 – Executive (internal) reform options
• 49:12 – Innovation and government funding for the press
• 54:41 – What to watch for: returning to equilibrium
• 56:19 – Limits and lessons of the “golden age”; future needs

Conclusion

Lidsky and Koningisor’s argument is a call to recognize how the legal and informational landscape has changed, leaving the press unable to check government as the Supreme Court once presumed. Efficient remedies require a mix of legal, institutional, and financial reforms—focused especially on shoring up local journalism—if the “watchdog” function essential to democracy is to survive in the twenty-first century.

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