The Lawfare Podcast Lawfare Archive: Lidsky and Koningisor on First Amendment Disequilibrium
Dec 28, 2025
Larissa Lidsky, a law professor specializing in First Amendment and media law, and Christina Koningisor, a press freedom advocate, discuss the shifting landscape of press power in relation to executive authority. They explore how the decline of local news and the erosion of post-Watergate reforms have created a troubling First Amendment disequilibrium. The duo also assesses historical cases and the impact of economic pressures on the media, while proposing reforms to restore press strength and transparency in government.
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Pentagon Papers And Prior Restraint
- Pentagon Papers showed courts presume against prior restraints when the government failed to control classified disclosures.
- The Court treated press access as fair game once the government had not properly guarded secrets.
Assumptions Behind Branzburg
- Branzburg assumed the press could defend itself, government self‑restraint would hold, and practical incentives limited overreach.
- Those four assumptions underlie the Court’s refusal to recognize a reporter's privilege.
Internet Broke Press’s Extractive Capacity
- The internet disrupted news economics, slashing newsroom staff and expertise critical to extracting government information.
- Declining trust and resources left institutional press far weaker than in the Court's assumptions.