The internet made publishing radically cheaper. It did not make defending publication cheap. That imbalance has created a quieter inequality inside free expression: two people may possess the same legal right to speak, while only one can afford the consequences of exercising it.
The Freedom to Publish Is Not the Freedom to Defend Publication
For much of modern history, reaching a mass audience required an institution. Printing presses, distribution networks, broadcasters, editors and substantial capital stood between an individual writer and the public. Digital publishing dismantled much of that barrier. A researcher, local reporter, specialist or independent writer can now reach readers across borders without owning a press, securing a broadcasting licence or persuading a newspaper proprietor to allocate space.
That transformation is usually described as a democratization of speech, and in an important sense it is. The economic threshold for publication collapsed. Yet the economic threshold for defending publication did not collapse with it. An investigation can be published from a laptop at negligible cost and then expose its author to a legal dispute requiring specialist lawyers, evidence preservation, months or years of work, and resources vastly greater than those required to place the article online.
That difference creates what can be called the defensibility gap: the distance between possessing a legal right and possessing the practical resources required to defend the exercise of that right. The concept does not presume that the journalist is correct, that a claimant is malicious or that every lawsuit against a publisher is abusive. People genuinely harmed by false allegations, unlawful invasions of privacy or other wrongdoing must retain meaningful access to courts. The problem begins when the price of discovering who is legally right becomes large enough to influence who is willing to speak before any judge has decided anything.
Modern discussions of press freedom still tend to picture censorship as prohibition. A government bans a book, closes a newspaper, blocks a website, revokes a licence or arrests a reporter. Those forms of repression remain real, and in authoritarian systems they can be far more brutal than the pressures examined here. But a legal democracy can produce a different vulnerability precisely because courts remain open, private parties possess legal rights and litigation is legitimate. Nobody needs formally to prohibit publication if the anticipated cost of defending it can alter behaviour on its own.
Freedom can therefore be strong in doctrine while remaining uneven in practice. The law may give two speakers the same formal protection, but their ability to endure a legal challenge can differ radically according to wealth, employment status, insurance, access to counsel and institutional backing. This is not a new discovery about the unequal distribution of money. It is a question about the practical architecture of a right: whether possessing it also means having a realistic opportunity to establish and defend its boundaries.
When the Process Becomes Part of the Pressure
Strategic lawsuits against public participation, usually known as SLAPPs, made one part of this problem visible. The term is used for abusive legal proceedings that seek to deter participation in matters of public interest rather than simply secure redress for a legitimate legal injury. Journalists are frequent targets, but activists, academics, environmental campaigners, NGOs and ordinary citizens can also face such claims.
The central insight behind anti-SLAPP protections is more important than the acronym itself: legal process can impose a burden independent of the eventual judgment. A defendant who wins after years of proceedings may still have spent heavily on lawyers, diverted time from work, delayed publication, suffered reputational damage or accepted a settlement that seemed irrational from the perspective of the merits but rational from the perspective of survival. The final judgment tells us who prevailed legally; it does not necessarily tell us who paid more dearly for the journey.
The experience of the French investigative publication StreetPress illustrates the difference. In testimony before a French Senate committee in April 2026, its founder, Johan Weisz, reported that the newsroom had spent more than €100,000 on legal defence during 2024 and 2025. StreetPress had built a reader-supported model of independent journalism, yet defending its reporting remained a substantial financial burden. The testimony did not establish that every proceeding against the publication was abusive, nor would such a conclusion follow merely from the number or cost of cases. It demonstrated something more concrete: even an independent newsroom with an established audience and financial support may have to divert significant resources from journalism into defending its right to publish.
That is why looking only at damages eventually awarded can mislead. For a large publisher, litigation may be an institutional expense carried by a legal department, an insurer and a balance sheet capable of absorbing uncertainty. For a smaller newsroom, the same type of proceeding may affect hiring, reporting budgets and the organization’s ability to continue difficult investigations. For an individual writer, it may threaten personal savings or future work. The legal issue may be comparable, but the economic consequences of encountering it are not.
The imbalance becomes especially consequential when one party can sustain proceedings for longer than the other can afford to resist. A claimant may have a perfectly legitimate case, and a defendant may have a strong legal answer. Yet the prospect of prolonged uncertainty can influence both parties’ decisions before the court reaches the merits. The relevant question is therefore not always who would win in the end, but how much each side must spend to reach an end at all.
The Risk Price of Speech
Responsible journalism already involves risk assessment. Before publishing a serious allegation, a competent reporter asks whether the evidence is sufficient, whether sources are reliable, whether the language goes further than the facts justify, whether the subject has had a fair opportunity to respond and whether an intrusion into privacy serves a defensible public interest. Good journalism is not the absence of caution; it is caution directed toward truth.
Legal exposure introduces another calculation alongside those editorial questions. How litigious is the subject? Which jurisdiction could become involved? Does the publication carry appropriate liability insurance? Can it obtain specialist legal review before publication? If a threatening letter arrives from a large law firm, how many rounds of correspondence can the publisher finance before any hearing occurs? And if the eventual defence is successful, how much of the expense will actually be recoverable?
Those questions create what might be called the risk price of speech. The phrase does not imply corruption or cowardice. Individuals and institutions price risk constantly: businesses insure against possible losses, families avoid commitments that could endanger their homes, and newspapers have long considered legal exposure. What makes journalism unusual is that a private risk calculation can help determine what information enters the public sphere.
A wealthy publisher and an independent reporter can examine the same evidence, agree about its strength and still reach different publication decisions. One may possess lawyers, insurance, financial reserves and institutional experience. The other may possess personal savings and no realistic way to finance a prolonged defence. Their disagreement need not concern the truth of the story. It may concern the cost of establishing that the publication was lawful if somebody decides to challenge it.
This gives the familiar idea of the chilling effect a more precise economic dimension. The traditional term describes how threats and legal pressure can deter expression, but it can make the phenomenon sound primarily psychological, as though the obstacle were frightened journalists. A newsroom can decline a story while remaining convinced of its importance, just as an independent reporter can demonstrate considerable personal courage while deciding that risking family savings over one investigation would be irresponsible.
Fear and calculation can overlap, but they are not identical. Telling journalists to be braver does little when the obstacle is a legal bill. Celebrating resilience can even conceal institutional weakness by turning a structural cost into a test of individual character. If democratic societies value scrutiny of powerful institutions, the relevant question is not simply how to produce courageous reporters. It is how to prevent investigative courage from becoming a luxury available mainly to people backed by employers capable of financing its consequences.
Publishing Was Democratized Faster Than Legal Defence
The digital revolution makes this imbalance especially striking because it transformed publication more thoroughly than it transformed protection. A writer no longer needs to own a newspaper to investigate a corporation, and a small research group can publish globally at a cost once associated with a local pamphlet. Specialists can leave established media and build newsletters, nonprofit newsrooms can collaborate across borders, and independent reporters can reach audiences that institutional journalism once largely controlled.
Large news organizations, however, were never merely distribution systems. They also pooled risk. Editors challenged weak claims before publication, archives preserved supporting material, salaries gave reporters time to verify difficult stories, lawyers performed pre-publication review, insurers covered certain liabilities, and institutions could finance disputes that individual journalists might have been unable to sustain. The newspaper was not simply a machine for reaching readers; it was also an organization for absorbing some of the risks generated by reaching them.
None of this romanticizes legacy media. Large institutions can be politically constrained, commercially dependent, excessively cautious or unwilling to confront powerful interests. Their editorial decisions have sometimes protected owners and advertisers rather than the public. Yet the organizational structure surrounding journalism performed a protective function that becomes easier to notice when a reporter leaves the institution but retains the same ambition to investigate people capable of resisting scrutiny through the courts.
The experience of journalist Dolia Estevez makes that distinction concrete. After reporting on alleged corruption in Mexico for Forbes in 2013, she faced a defamation lawsuit in New York. As documented by Poynter and later the Columbia Journalism Review, Forbes declined to fund her defence, relying on contractual terms that placed responsibility for legal claims arising from her work on the freelance contributor. Estevez obtained pro bono representation, and the case against her was eventually dismissed. The dispute illustrates how a publication can provide an audience for investigative work without necessarily providing the legal protection that a staff journalist might receive.
Freelance contracts deserve attention because they can quietly separate editorial benefit from legal responsibility. An organization may publish and profit from a contribution while requiring the writer to indemnify it against certain claims. Such arrangements vary, and not every publisher imposes them or leaves contributors without assistance. Nevertheless, where risk is transferred to individuals with less bargaining power, the economic structure of journalism changes even if the published work appears indistinguishable from reporting produced by staff journalists.
Independent publication can therefore remove both a gatekeeper and a shield. Editorial freedom increases because fewer institutional actors can veto a story, while personal exposure may also increase because fewer institutional resources are available to defend it. The journalist becomes more autonomous and potentially more vulnerable through the same transition, not because independence is inherently defective, but because ownership of the means of publication does not automatically provide ownership of the means of legal defence.
The Stories That Never Become Cases
Court records reveal only part of legal pressure because the most effective threat may produce no case at all. A lawyer’s letter can arrive before publication disputing allegations, demanding changes, challenging sources or warning that proceedings will follow if the story appears. Such correspondence is not inherently abusive. A person about to be falsely accused has every reason to intervene before the damage occurs, and responsible journalism often improves because subjects identify genuine factual errors before publication.
The difficult cases lie between legitimate correction and coercive deterrence. A weak story withdrawn after a lawyer demonstrates that its evidence is unreliable is not a casualty of censorship; it is journalism functioning properly. A well-supported investigation abandoned because a small publisher cannot afford even the possibility of defending it presents a different problem. From outside the newsroom, however, both decisions produce the same observable result: nothing appears.
This creates a form of pre-litigation silence that is difficult to capture in conventional measurements of press freedom. The critical decision occurs before a court becomes involved, when the expected cost of a possible dispute changes what an editor, freelancer or small publication is willing to publish. Legal correspondence may influence that decision, but the mechanism can operate without any explicit threat. The publisher may simply anticipate the kind of resistance that a powerful subject could finance.
Researchers can count filed lawsuits, judgments, damages and applications for anti-SLAPP protection. They cannot easily count investigations abandoned after preliminary legal advice, allegations removed from drafts, sources whose information was too expensive to verify to the necessary standard, or stories never commissioned because an organization judged the possible legal exposure unsustainable. The public archive records the disputes that became visible; it is much worse at recording the investigations that disappeared before visibility was possible.
This measurement problem requires caution in both directions. It would be irresponsible to assume that every unpublished investigation was true or that every threatening letter was abusive. Some stories deserve to die before publication, and editorial restraint can be evidence of professional integrity. Yet it would be equally naive to treat the absence of litigation as proof that no legal pressure influenced the information reaching the public. A deterrent may be effective precisely because it prevents the dispute through which its effects might otherwise become observable.
Conventional censorship often leaves identifiable decisions: a prohibited book, a closed newspaper, an imprisoned journalist or a blocked website. The defensibility gap can produce a censorship-like outcome without producing a comparable censorship event. Its missing record contains not only cases that never reached court, but public-interest questions that may never have been investigated far enough to become cases at all.
Reputation Is Also a Right
A serious defence of free expression must resist the temptation to romanticize publication. Journalists can make mistakes, bloggers can spread reckless allegations, activists can repeat false information and media organizations can destroy reputations through carelessness. A person falsely accused of corruption, sexual misconduct, fraud or criminality can suffer consequences that no later correction fully repairs.
Reputation and privacy are therefore not embarrassing obstacles to press freedom. They are legitimate interests that democratic legal systems are entitled to protect. A public sphere in which every publisher could immunize damaging falsehoods merely by describing them as journalism would not be freer; it would substitute impunity for accountability. The right to investigate powerful institutions cannot be separated from the responsibility to distinguish evidence from accusation.
This is why SLAPP cannot simply mean a lawsuit against someone who spoke. A legitimate claimant seeks redress for an alleged legal injury, while an abusive proceeding uses litigation improperly to burden or deter participation in matters of public interest. Distinguishing the two requires attention to the claim, the conduct of the parties, the procedures involved and the available evidence. It cannot be settled by automatically sympathizing with whichever party invokes freedom.
The strongest defence of press freedom begins by admitting that journalists can be wrong and that people harmed by their errors must retain meaningful remedies. If every criticism or legal claim against a reporter is dismissed rhetorically as intimidation, genuine anti-SLAPP protections become easier to portray as special privileges for media organizations. Safeguarding public-interest journalism and preserving access to justice are not mutually exclusive objectives, even when particular disputes make the relationship difficult.
The concern raised by the defensibility gap is therefore not that law has entered an otherwise perfect realm of speech. Law helps make freedom of expression possible by defining and protecting competing rights. The difficulty arises when access to that legal architecture carries costs so unequal that the financial burden of resolving a dispute can become more consequential than the merits of the dispute itself.
Money Does Not Need to Buy the Verdict
Public suspicion often focuses on the crudest possible fear: that money can purchase justice. In legal systems with independent courts, that is usually an inadequate explanation of how wealth affects litigation. A more ordinary advantage is also more difficult to sensationalize: money buys endurance.
It can fund specialist counsel, document review, expert evidence, repeated applications, appeals and years of procedural work. It can allow an organization to continue a dispute even when the immediate financial return would not justify the expense. What is one line item on an institutional budget may become an existential risk for a freelancer or small publication. The inequality is not necessarily found in the final verdict, but in the unequal ability to remain engaged until a verdict becomes possible.
The underlying problem has a long history in legal scholarship. In his influential 1974 essay Why the “Haves” Come Out Ahead, legal scholar Marc Galanter distinguished between repeat players, who encounter legal institutions regularly and can develop expertise and long-term strategies, and parties for whom litigation is an exceptional event. The distinction helps explain why formal equality before a court does not automatically equalize the resources, experience or strategic opportunities available to those who enter it.
For journalism, the digital era adds a particular complication to that older insight. The number of people capable of making public-interest allegations has expanded dramatically, while the resources needed to sustain difficult legal disputes remain concentrated in institutions with money, experience and professional support. An independent publisher may enter a dispute for the first time against an organization that has dealt with lawyers, insurers and complex litigation repeatedly. Both may be formally entitled to invoke the same rules, but they do not approach those rules with the same capacity to use them.
The asymmetry is temporal as well as financial. One party may be able to wait longer, and the ability to wait changes negotiation. Settlements occur not between abstract legal rights but between people estimating what they can survive before those rights are finally determined. A journalist with a strong defence may still accept a correction, deletion or settlement if proving that defence would cost more than conceding. Such a decision establishes neither that the reporting was correct nor that the claimant behaved improperly; it shows that the economics of reaching judgment and the legal merits of a claim are different variables.
This distinction is politically significant because it prevents a misleading choice between two explanations: either justice is corrupt or the legal system treats everyone equally. Independent courts can make legally sound decisions while litigants face deeply unequal costs in obtaining them. A speaker with substantial resources can afford some uncertainty about the eventual interpretation of the law, whereas a speaker without them may need not merely to have a defensible position, but to be reasonably confident that defending it will not cause financial ruin.
The Independence Paradox
Independent journalism carries a paradox that romantic accounts of the lone reporter often overlook. Independence can free a journalist from an owner, advertiser or newsroom culture unwilling to pursue a sensitive subject. Yet freedom from institutional control is not the same as independence from the economic conditions under which journalism operates. A publication can own its platform, choose its subjects and answer primarily to its readers while remaining vulnerable to legal costs that its revenue model was never designed to absorb.
The consequences extend beyond the survival of individual publishers. If legally hazardous investigations remain disproportionately expensive to defend, independent media may face incentives to concentrate on forms of journalism with more manageable liability. Commentary, cultural criticism, explanatory reporting and analysis may flourish while investigations into powerful institutions continue to depend heavily on organizations capable of financing lawyers, insurance and sustained disputes. The difference does not reflect an inherent lack of courage among smaller publishers; it reflects different capacities to assume risk.
That possibility complicates the celebration of digital media pluralism. A public sphere can contain more writers, newsletters, websites and competing opinions than ever while possessing relatively few institutions capable of conducting and defending certain forms of difficult investigation. The diversity of visible voices and the diversity of organizations able to withstand legal resistance are not necessarily the same thing.
The resulting division would not simply reproduce the old media order. Reader-supported publications, nonprofit newsrooms, investigative collaborations and legal defence organizations have created alternatives to conventional corporate ownership. Their importance lies partly in making it possible to separate financial scale from solitary institutional dependence. Smaller publishers can sometimes share reporting capacity, legal expertise and support mechanisms that none could finance alone.
The deeper issue is therefore not whether journalism should return to large institutions or celebrate independence without qualification. It is whether the protections historically associated with institutional scale can be made more accessible without recreating the editorial hierarchies and commercial dependencies from which many independent journalists sought to escape. Independence is not secured merely by owning the means of publication. It also requires enough institutional resilience to survive what independence may provoke.
Why Anti-SLAPP Law Cannot Close the Gap Alone
Anti-SLAPP legislation addresses an important part of this problem by seeking to prevent abusive litigation from becoming an expensive punishment in its own right. Early dismissal, protections against disproportionate procedural burdens, cost recovery and appropriate sanctions can change the incentives surrounding proceedings. Their purpose is not to guarantee victory to journalists, but to prevent the machinery of litigation from being misused against legitimate public participation.
The European Union’s Directive 2024/1069 illustrates both the ambition and the limits of this approach. Adopted in 2024, it established minimum procedural safeguards for certain civil and commercial proceedings involving public participation and cross-border implications, with a May 2026 deadline for Member States to transpose its requirements into national law. Its scope does not automatically extend to every domestic defamation dispute, and practical protection depends on the applicable national legal framework. Several US states have developed their own anti-SLAPP regimes, but differences among those systems likewise make it inaccurate to speak of a single uniform protection.
Even an effective legal safeguard cannot eliminate the defensibility gap entirely. Somebody must still recognize that the protection may apply, obtain legal advice and invoke the relevant procedure. Courts must distinguish abusive litigation from claims that may have merit. Cross-border publication introduces jurisdictional complications, while financial pressure can arise through correspondence and legal review long before proceedings begin. A protection that substantially reduces the cost of an abusive lawsuit may still leave the publisher paying a considerable price to demonstrate that the lawsuit should be dismissed.
Nor can reform responsibly proceed by assuming that every public-interest defendant is right. A legal system that removes meaningful remedies from people harmed by unlawful publication would exchange one inequality for another. Reputation, privacy and fair access to courts must remain protected, even as procedural law becomes more effective at recognizing litigation designed or conducted abusively. The safeguards necessary to defend expression cannot simply extinguish the other rights that expression may affect.
This is why legal defence funds, pro bono representation, specialist clinics, stronger contractual protections for freelancers, appropriate media-liability insurance and collaborative support among newsrooms matter alongside legislation. These institutions cannot replace careful reporting or guarantee that a publisher will prevail. They can, however, change whether a person with a defensible public-interest story has a realistic capacity to withstand a challenge long enough for the legal system to examine it.
The defensibility gap is ultimately an ecosystem problem. It is produced through the interaction of legal rules, procedural costs, insurance markets, employment arrangements, access to expertise and the financial structure of media institutions. No single statute can close it completely, just as no single reform can eliminate the inequality of resources among parties entering a courtroom. But reducing the cost of reaching a fair decision can make an important difference without weakening the principle that people remain accountable for what they publish.
The Invisible Class Structure of Free Expression
The defensibility gap leads to an uncomfortable conclusion: free expression can develop something resembling a class structure even when the legal text contains none. At one end are wealthy individuals and well-resourced organizations able to absorb legal risk internally. Below them are smaller institutions with some insurance or access to counsel but limited tolerance for prolonged disputes. Further down are freelancers, local activists, tiny nonprofits and individuals whose formal protections may be substantial while their ability to defend those protections is fragile.
No constitution needs to announce that these groups possess different quantities of freedom. The difference appears in the risks they can realistically bear, the investigations they can finance and the disputes they can survive. Wealth does not determine every outcome, and independent reporters sometimes defeat powerful opponents. The inequality lies not in a predetermined judicial result, but in the uneven price of entering and remaining in the contest.
The issue extends well beyond professional journalism. Scientists criticizing powerful industries, employees speaking about workplace conditions, researchers exposing misconduct, NGOs investigating corruption and residents opposing development projects can encounter versions of the same imbalance. Their legal circumstances differ, sometimes considerably, and not every dispute involves expressive rights in the same way. What connects them is the possibility that practical participation depends partly on access to resources capable of sustaining a legal challenge.
This also changes how we should understand the familiar celebration of courageous individuals. Free societies tell stories about reporters who withstand threats, editors who refuse to withdraw investigations and small publications that eventually win against much wealthier opponents. Those achievements deserve admiration, but heroism cannot substitute for institutional design. A system that routinely requires extraordinary personal sacrifice to exercise an ordinary legal right has placed too much of the burden of freedom on individual endurance.
The deeper democratic question is not whether all speakers should be insulated from consequences. They should not. People who publish false allegations, unlawfully invade privacy or otherwise violate rights must remain accountable. The question is whether the cost of establishing responsibility should itself determine which speakers can afford to participate in disputes about public affairs. A legal right becomes less useful when a person must risk financial ruin merely to establish that exercising it was lawful.
The internet changed the distribution of expressive opportunity by allowing people to publish without the permission of traditional media institutions. It did not produce an equivalent redistribution of legal resources. This is not an argument against digital independence, and it does not establish that the old institutional order was fairer in every respect. It exposes a limit of technological democratization: removing one barrier to participation does not remove the other barriers that become important after participation begins.
The stories that never reached publication remain the hardest evidence to recover. Some would have failed careful scrutiny, while others might have exposed matters of genuine public importance. We cannot responsibly treat the missing archive as a collection of suppressed truths. But neither should we mistake the absence of a public record for proof that every defensible story had a realistic opportunity to appear. The gaps in that record are partly a consequence of decisions made before litigation, when individuals and institutions weighed the value of publication against what defending it might cost.
Free expression is not seriously tested when nobody objects to what has been published. It is tested when objection acquires money, lawyers and time. At that moment, the decisive question is no longer only whether the law permits the words. It is whether the person who wrote them can afford to remain standing long enough for the law to matter.
