Free Speech

The Nonredundant Free Press Clause

Some argue that the "freedom of the press" must give special rights to the press-as-industry, because otherwise it would be redundant of the "freedom of the speech" -- but in the Framing era, the two were complementary, not redundant.

|The Volokh Conspiracy |


In this post, I'm continuing my series on "Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today," based on my Penn Law Review article; I distinguish the view that the freedom of the press specially protects the "press" as institutional media (press-as-industry) from the view that it protects all who use the printing press and its technological heirs (press-as-technology), and argue that the term has long been understood by lawyers as taking the press-as-technology view.

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The freedom of the press-as-technology, of course, was not seen as redundant of the freedom of speech. [Justice Stewart, among others, argued that the Free Press Clause should be read as protecting the press-as-industry since otherwise it would be a "constitutional redundancy."] St. George Tucker, for instance, discussed the freedom of speech as focusing on the spoken word and the freedom of the press as focusing on the printed:

The best speech cannot be heard, by any great number of persons. The best speech may be misunderstood, misrepresented, and imperfectly remembered by those who are present. To all the rest of mankind, it is, as if it had never been. The best speech must also be short for the investigation of any subject of an intricate nature, or even a plain one, if it be of more than ordinary length. The best speech then must be altogether inadequate to the due exercise of the censorial power, by the people. The only adequate supplementary aid for these defects, is the absolute freedom of the press.

Likewise, George Hay, who later became a U.S. Attorney and a federal judge, wrote in 1799 that "freedom of speech means, in the construction of the Constitution, the privilege of speaking any thing without control" and "the words freedom of the press, which form a part of the same sentence, mean the privilege of printing any thing without control." Massachusetts Attorney General James Sullivan (1801) similarly treated "the freedom of speech" as referring to "utter[ing], in words spoken," and "the freedom of the press" as referring to "print[ing] and publish[ing]."

And these sources captured an understanding that was broadly expressed during the surrounding decades. Bishop Thomas Hayter, writing in 1754, described the "Liberty of the Press" as applying the traditionally recognized "Use and Liberty of Speech" to "Printing," an activity that Hayter described as "only a more extensive and improved Kind of Speech." Hayter's work was known and quoted in Revolutionary-era America.

Similarly, William Bollan (1766) described "printing" as "a species of writing invented for the more expeditious multiplication of copies," and asserted that "freedom or restraint of speech and writing upon public affairs have generally been concomitant"; because of this, Bollan argued, "restraints of writing" were likely to erode the "liberty of speech" and not only of writing, and "those who desire to preserve the [liberty of speech] ought by all means to take due care of the [freedom of writing]." And Bollan used "liberty of the press" and "the freedom of writing" (in a context suggesting printing) interchangeably.

Later, Francis Holt (1812) defined the liberty of the press as "the personal liberty of the writer to express his thoughts in the more [im]proved way invented by human ingenuity in the form of the press." William Rawle (1825) likewise characterized "[t]he press" as "a vehicle of the freedom of speech," adding that "[t]he art of printing illuminates the world, by a rapid dissemination of what would otherwise be slowly communicated and partially understood."

Without the freedom of the press, the freedom of speech might not have been viewed as covering printing, given that printing posed dangers that ordinary "speech" did not. Indeed, in the centuries before the Framing, governments tried to specifically constrain the use of the press-as-technology because they found it to be especially dangerous. The free press guarantees made clear that this potentially dangerous technology was protected alongside direct in-person communications.

Of course, over the last several decades, the phrase "freedom of speech" has often been used to mean "freedom of expression" and to encompass all means of communication. This might have stemmed partly from technological change. New media of communication such as radio, films, television, and the Internet may fit more naturally in lay English within the term "speech" rather than "press." And once some mass communication technologies are labeled "speech," it becomes easier to label their traditional print equivalent "speech" as well.

The broadening of the phrase "freedom of speech" might also have been aided by the success of the "freedom of the press" clause in assuring protection for the press-as-technology. Once constitutional law applies the same legal rules to spoken and printed communication, with no extra constraint on the press, it becomes easier to use a common label to refer to the common protection.

But the canon against interpreting legal writings in a way that makes one clause redundant of another rests on the notion that the authors and ratifiers of those writings wouldn't have written something that was redundant under their understanding. And under the late 1700s understanding, the freedom of the press-as-technology was not at all redundant of the freedom of speech.