Free Speech

'Freedom of the Press' and Non-Professional-Media Speakers: Why It Matters

Some judges in recent have years have reasoned that non-professional-media speakers have lesser First Amendment rights.

|The Volokh Conspiracy |

I've been blogging recently about how "the freedom of the press" has long been understood as securing the freedom of all to use mass communications technology (the printing press and its modern heirs) and not as a freedom limited to those who belong to a favored industry ("the press" in the sense of the professional media). Why does this matter? Do some judges really take the latter view, and seek to exclude speakers from protection because the speakers don't publish regularly for a living?

Indeed they do. Let me offer just a few examples.

[1.] Restrictions on campaign-related expenditures: Many campaign finance laws have sought to limit people's ability to spend money to support or oppose candidates. The law struck down in Buckley v. Valeo barred people generally from spending more than $1000 on such speech. The law struck down in Citizens United barred corporations and unions from spending any of their general treasury funds on such speech.

Now of course newspapers routinely spend money to support or oppose candidates—anything newspapers write costs money. Under any sensible accounting scheme, an editorial supporting a candidate would cost a lot in labor costs and the editorial's share of newsprint, ink, and distribution costs. That would often far exceed $1000; and most newspapers are of course organized as corporations. Likewise for extended coverage supporting or opposing a candidate, when engaged in by an opinion magazine.

Campaign finance laws generally exempt "broadcasting station[s], newspaper[s], magazine[s], or other periodical publication[s]," precisely to avoid this result. But those are just statutory exemptions, created as a matter of legislative grace. What if Congress or a state legislature decided to omit any such exemption, so that on its face the law did bar expensive editorializing for or against candidates by newspapers, just as it was intended to do for other spenders?

There are three possible answers. One—the one associated these days with conservatives—is that the First Amendment forbids all such restrictions on independent expenditures (independent, that is to say, of the candidate). Newspapers are free to speak about candidates, but only because everyone is.

Another, which one might take if one were really hard-core about such restrictions, is that the First Amendment allows all such restrictions, including on newspapers, magazines, and the like. After all, if one is concerned about the influence of spending on politics, one can be equally concerned about the influence of media spending—it, too, is inegalitarian and potentially corrupting, just as others' spending would be. But very few people are willing to go that far.

The third option, which is associated these days with many liberals, is that the First Amendment allows restrictions on spending by most speakers, but not by "the press." Most speakers can be barred from spending over $1000 (or some such amount) on advocacy for or against a candidate or a ballot measure, many pro-campaign-finance-restriction advocates say—but not newspapers or magazines. Most speakers can be barred from spending corporate money on such advocacy, the argument goes; but not newspapers or magazines.

Indeed, consider Justice Stevens' dissent (for four Justices) in Citizens United. Justice Scalia's concurrence argued that, "under the Government's reasoning" supporting the ban on corporate independent spending for or against candidates, "wealthy media corporations could have their voices diminished to put them on par with other media entities." No, said the dissent:

Justice Scalia would seemingly read out the Free Press Clause [from the First Amendment]: How else could he claim that my purported views on newspapers must track my views on corporations generally?

[Footnote:] In fact, the Free Press Clause might be turned against Justice Scalia, for two reasons. First, we learn from it that the drafters of the First Amendment did draw distinctions—explicit distinctions—between types of "speakers," or speech outlets or forms. Second, the Court's strongest historical evidence all relates to the Framers' views on the press, yet while the Court tries to sweep this evidence into the Free Speech Clause, the Free Press Clause provides a more natural textual home. The text and history highlighted by our colleagues suggests why one type of corporation, those that are part of the press, might be able to claim special First Amendment status, and therefore why some kinds of "identity"-based distinctions might be permissible after all. Once one accepts that much, the intellectual edifice of the majority opinion crumbles.

Note the nature of Justice Stevens' argument:

  1. It is a claim about what the text of the First Amendment meant to its drafters, so originalist evidence is important to it. (Justice Stevens, like many Justices, views original meaning as highly relevant, though not dispositive.)
  2. It is a claim about the Free Press Clause providing special protection to the press-as-industry (speakers "that are part of the press") rather than to all who use the press-as-technology.
  3. It is, in this passage, a claim specifically about the press-as-industry-vs.-technology issue, and not the separate issues of how the Framers would have viewed the rights of corporations, or how they would have viewed the right to spend money. (Those are interesting and important historical questions, but ones that I'm not focusing on in these posts, or in my article.)

And I think the evidence I've been pointing to is relevant to evaluating Justice Stevens' argument. If I'm right that the freedom of the press was understood at the time of the Framing as protecting people who write one-off books or pamphlets as much as those who are in the business of publishing, then it would analogously protect speakers such as Citizens United (who make occasional videos rather) as much as day-to-day cable broadcasters. If I'm right that the freedom of the press was understood as covering those who submitted items to newspapers, or bought ads in newspapers, as much as the newspaper publishers themselves—and I'll cite some such early cases in upcoming posts—then it would likewise cover those who spend, say, $5000 on a political ad in a newspaper as much as it would cover editors who spend $5000 on a political editorial in a newspaper.

Now maybe you think Justice Stevens is right on the history here and I'm wrong; or maybe you think the history doesn't matter, and Justice Stevens is right for other reasons. But passages such as the one I quote show that people are arguing that the First Amendment's text and history shows that the press-as-industry should get special protection, so that the modern analogs of Framing-era book authors, pamphleteers, newspaper advertisers, and the like should indeed get lesser protection that does the institutional press.

[2.] Limitations on libel law protections. The Supreme Court has, since 1964, developed a set of important protections for speakers who are sued for libel. Should all these protections be available for all speakers, rather than being reserved just for those who are members of the institutional press and denied to one-off speakers? The great bulk of modern lower court cases say yes, they should be available for all. The Supreme Court has also said yes: Five Justices took that view in a libel case, Dun & Bradstreet v. Greenmoss Builders (1985), and though that wasn't binding precedent (since some of those five Justices were dissenting, and the formal rule is that dissenters aren't usually counted for precedential purposes), the Citizens United majority expressly endorsed it. Five Supreme Court cases from 1979 to 1990 noted that the question was unresolved then, but it is resolved now.

Still, there are a few lower court decisions starting with the 1970s that deny non-professional-media speakers the First Amendment protections that professional media speakers get. For instance, a 1981 Virginia Supreme Court decision concluded that a real estate developer who bought a newspaper ad to criticize a citizen opponent of a development project was a "non-media defendant," and thus wasn't protected under the Gertz v. Robert Welch, Inc. rule (under which plaintiffs in such cases can't recover presumed or punitive damages absent a showing of "actual malice"). A 1979 Oregon Supreme Court case and a 2007 federal district court case held the same as to a authors of letters to the editor. A 2005 Michigan appellate case held the same as to a professor who posted material on his website. A 2006 federal district court case held that an author of a self-published book couldn't assert First Amendment defenses because she wasn't a member of the media. Five more cases took the same view as to people's statements to reporters or interviewers. And the Minnesota case that indirectly prompted this recent series of posts took a similar view as to a nonprofit organization's newsletter, and a woman who wrote one article for that newsletter.

Again, these speakers are closely analogous to Framing-era book authors, pamphleteers, and writers who submitted articles or ads to newspapers. If my analysis is right, and one thinks that historical understandings of the freedom of the press matter (both such understandings from the Framing era, and from the rest of American history, which I'll discuss soon), then these cases are mistaken in treating the professional media differently for First Amendment purposes from other users of mass communication technology.

[3.] The newsgatherer's privilege. Federal courts have also debated whether journalists and others who gather information for publication should have a limited First Amendment privilege to refuse to disclose the identities of their confidential sources (and sometimes other information). Branzburg v. Hayes (1972) rejected such a privilege, and in the process rejected the view that the professional media has special First Amendment rights. But many lower courts have recognized such a privilege nonetheless, based (I think incorrectly) on some language in Justice Powell's concurrence. (Note that many newsgatherer's privilege claims are brought not under the First Amendment but under special statutes that provide extra protection; some such statutes are limited to professional journalists, but that is a separate question from the one I'm discussing here.)

As it happens, nearly all the cases that have recognized such a First Amendment privilege have extended it to all who gather information for publication, including would-be book authors, professors doing research for a possible future article, a film student and a professor trying to produce a documentary film, a political candidate, and political advocacy groups. The common threshold requirement seems to be that the newsgatherer, "at the inception of the investigatory process, had the intent to disseminate to the public the information obtained through the investigation." The newsgatherer need not be a member of the press-as-industry. But one case (a 1979 New York intermediate appellate court decision) disagreed, and held that book authors weren't covered. Here too the evidence I gather may be relevant to the analysis, to the extent courts care about such historical evidence.

[* * *]

I hope, then, that this shows that the debate I'm discussing—how was the "freedom of the press" historically understood?—continues, and that the particular evidence I'm introducing is potentially helpful: Whether or not, say, book authors or pamphleteers or advertisers were viewed as covered, even though they weren't professional members of "the press," may bear on analogous questions today.

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  1. If there is a “newsgatherer’s privilege,” I think it would be sensible that it would be functional and not limited to “institutions” though the functional test might be set up in a fashion for which the institutional press would do well since they have various characteristics that generally would protect them more at the end of the day. Consider a test that neutrally uses athletic ability that might for certain sports result in more of one sex to dominate.

    But, that would suggest that “freedom of the press” is not merely technical (a press) but has an overall function that newspapers etc. would particularly advance. I’ll note btw that Justice Stevens’ dissent noted that the filmmaker at issue had various means, including using corporate funds, to speak. So, we are in that scenario talking about a specific subset of rights.

    1. The Minnesota opinion summarizes the argument: “Allegedly defamatory statements about criminal conduct by the plaintiff that were made by an award recipient at a fundraising banquet and also in an article published by the sponsor organization for fundraising purposes were not protected by a qualified privilege.”

      As noted above, “nonprofit organization’s newsletter” etc. Not a lone pamphleteer. Anyway, looking at the opinion, it looks like it applied a multi-factor test to the person’s case. For instance, “In contrast, nothing in this record indicates that the alleged defamatory statements were made to protect Jorud.” A newspaper need not be involved there. But, she didn’t meet the criteria.

      There is a special “wire service” exception cited but that is a limited matter. The group at issue here published the letter. If they served as a sort of “wire service,” they very well might have been protected too. It is unclear how far this case really advances the argument. It is confusing really since it seems like association rights are at stake, which makes the “press as institution” argument a bit moot.

    2. If corporations can be limited, then Newspapers (which are corporations) can be…Unions too.

      So, lets bring back restrictions on corporations!

      Kind of like Alinksy’s Rule 4!

      1. Newspapers are regulated in various ways — e.g., they have to follow minimum wage laws and follow regulations involving corporate procedure, but just because something is a corporation in itself doesn’t mean constitutional limits of various kinds don’t arise. Religious institutions can be corporations. Details details.

  2. In practice your third option becomes the second, and only the most gullible in the media don’t understand that going in. The regulators just deny “press” status to anyone they feel like censoring.

    First you establish that you can censor somebody, and that line crossed, you just make anyone you want to censor fall into that group.

    It’s telling that there was such as fuss about Citizens United. Citizens United is exactly the sort of publishing you want to protect, if you’re concerned about robust political debate.

    It’s also exactly the sort of publishing you want to suppress, if you’re concerned about quashing robust political debate…

    1. With the accelerating growth of crowd-sourced reporting and electronic-only publishing, the claims of press as an industry and complaints about Citizens United can ?de facto? only be relevant to whose speech one wants suppress or censor.

  3. It is difficult to parse the logic that you gained first amendment rights when volokh.com changed to a WaPo offering and that those rights have now diminished now that the Conspiracy is part of reason.com.

    In fact, the growth of the Internet as the planet’s most ubiquitous publisher makes the question of “who is a reporter” an exceedingly mushy distinction just as it obscures differences between owners of major websites and those who own or rent printing presses.

    1. Reason.com does publish a print magazine too. Bad choice.

      1. What about the first instance when the Conspiracy went from its own site to WaPo?

  4. Let’s just have maximal rights as the superset of all interpretations.

    That some argue a rationale…and therefore government may censor! is an unseemly position for an American.

  5. “The third option, which is associated these days with many liberals, is that the First Amendment allows restrictions on spending by most speakers, but not by “the press.” That is the position of many liberals because the definition of the press in 1A basically licensed (by the government) press.

    Summary of Stevens CU dissent –

    All animals are equal, but some animals are more equal than others . A proclamation by the pigs who control the government in the novel Animal Farm, by George Orwell.

  6. The Amendment clearly bars Congress from infringing on “freedom of speech, or of the press”. That seems pretty clear to me.

  7. Stevens’ argument appears far worse than you characterize it. I appreciate if you can expound upon your generous take on that passage.

    Stevens appears to merely assume that “press” means “newspapers.” Thus his supposed-to-be rhetorical question; thus his statement, “we learn from [the Free Press clause] that the drafters of the First Amendment did draw distinctions?explicit distinctions?between types of ‘speakers,’ or speech outlets or forms.”

    Stevens there asserts that the reference to “press” obviously refers to a kind of speakers, else it wouldn’t be there, but rather rolled into the Speech clause. At least in this passage, his logic appears to spring from ignorance and not the history of the meaning of the Press clause. He doesn’t tackle the argument made by Scalia but entirely misses it because, according to Stevens, obviously “press” refers to “newspapers.” That’s the entirety as far as I read it.

    That is not to say an argument for Stevens’ reading based on historical sources is impossible (though I’m persuaded by you such an argument would be extraordinarily weak) but Stevens isn’t making that argument.

    1. “Stevens’ argument appears far worse than you characterize it. I appreciate if you can expound upon your generous take on that passage.”

      My apologies for being lazy and only providing a simplified version of Stevens dishonesty. The following passage highlights some of his dishonesty :

      “Stevens appears to merely assume that “press” means “newspapers.” Thus his supposed-to-be rhetorical question; thus his statement, “we learn from [the Free Press clause] that the drafters of the First Amendment did draw distinctions?explicit distinctions?between types of ‘speakers,’ or speech outlets or forms.”

      His dishonesty was rampant through out his opinions and dissents.
      1) Heller – no historical writings supporting the individual right ever existed
      2) Mcdonald – “All laws ” in 14A mean we can pick and chose which BoR to incorporate
      3) Kelo – public use means any potential public/government benefit – note increased property tax values is a public benefit, not a government benefit.
      4) CU – press means the congress can infringe on the freedom of speech and the press

  8. “The Supreme Court has, since 1964, developed a set of important protections for speakers who are sued for libel. Should all these protections be available for all speakers, or should some be reserved just for those who are members of the institutional press, and denied to one-off speakers? The great bulk of modern lower court cases say yes. ”

    Even Homer nods. That “yes” is rather ambiguous.

    1. I read that a couple of times. I think the “yes” must be to the first alternative for the balance to make sense.

    2. Whoops, good point, rewording it slightly to clarify.

  9. I would say that in the case of NYT v. Sullivan, from reading Anthony Lewis’s history, the Alabama courts really stretched the common law of libel in order to stick it to the opponents of Jim Crow. That is, I don’t think the common law of (civil) libel trials was the problem here, but Alabama’s twisting of the doctrines, and if the Supreme Court had said *that* they would still have reached the injustice of the trial without rewriting existing rules, which I don’t really think they have a mandate for.

  10. For instance, a 1981 Virginia Supreme Court decision concluded that a real estate developer who bought a newspaper ad to criticize a citizen opponent of a development project was a “non-media defendant,” and thus wasn’t protected under the Gertz v. Robert Welch, Inc. rule (under which plaintiffs in such cases can’t recover presumed or punitive damages absent a showing of “actual malice”) . . . Again, these speakers are closely analogous to Framing-era book authors, pamphleteers, and writers who submitted articles or ads to newspapers.

    Professor Volokh, does your use in that remark of “criticize” refer to a defendant who was found to have committed libel? If so, I suggest that writing, “closely analogous,” puts you far wide of the mark. And leaving the framing era speculation out of it, the “actual malice” standard, as I’m sure you know, was put in place to accommodate practical realities of news gathering by institutional publishers operating under the pressure of deadlines. If this is indeed a case of proved libel by a defendant lashing out at a critic, that’s not only not “closely analogous” to news gathering under deadline, it’s not a match at all.

    1. As to “actual malice,” the seminal citation of that test is NYT v. Sullivan, which in part cites a previous case Barr v. Matteo. The discussion cites freedom of public officials — “all hold that all officials are protected unless actual malice can be proved” — and then argues that the “citizen critic” should have the same protection.

      One can read the cases for further clarification but the “actual malice” test is not limited to news gathering.

      1. Joe, I did not write that NYT v. Sullivan was limited to news gathering. Perhaps I could have been clearer if I said that I remembered that it was often reported in the press at the time that the decision was motivated by the needs of news gatherers. That turns out also to be the focal idea in the Wikipedia article on the case, and makes sense in terms of the history of the case. That makes me think my memory was accurate.

        Also, can you help me out with regard to one of your quotes which I don’t follow: “all hold that all officials are protected unless actual malice can be proved.” NYT v. Sullivan wasn’t about protecting officials, it was about protecting the press from libel charges by officials. Can you say more? Is there more context for your quote?

        How subsequent case law may have expanded that initial understanding, I can’t say. I do think NYT v. Sullivan was pretty good as written, and didn’t need expanding. But today’s problem, of course, is that too many folks arguing on the internet haven’t got a clue about actual malice. Many among speech freedom fundamentalists think those shouldn’t get sued for being ignorant. The very notion of libel is under attack, and some legal experts (EV?) seem to think libel should be read out of the law. I don’t agree.

  11. >>…lower courts have recognized such a privilege nonetheless, based (I think incorrectly) on some language in Justice Powell’s concurrence

    Why are concurrences and dissents ever cited at all? They don’t have a majority so they can’t be law.

  12. ‘Freedom of the Press’ and Non-Professional-Media Speakers”

    Um, no. ‘non-professional media speakers’ are already protected under free speech rights. Or at least they should be.

    That certain courts have woven magical notions about ‘the media’ in order to exclude them from obvious restrictions on everyone else’s free speech rights is not a reason to make more bad arguments.

    Using the descriptive as a normative argument here is not going to solve the problem. The problem is the inability or unwillingness of particular black robes to extend Constitutional rights to the non-chosen hoi polloi.

    1. ThomasD, the option to extend to everyone a privilege to protect confidential sources does not exist, unless you want to say goodbye to due process. This isn’t about elites trying to raise themselves above others, despite Volokh’s tendentious framing. It’s about whether the nation needs, or can stand, a huge net reduction in press freedom. What Volokh argues for is only this: fettering the institutional press, so folks with status anxiety won’t get in a sweat.

      But Volokh’s tendentiousness doesn’t end there. He also suggests, and implies, and hints, and almost says, just what his target audience wants to believe?that limiting press freedom for the institutional press is not a bad thing for the nation, but a good thing, because the institutional press is a partisan enemy that ought to be stifled.

      Volokh, and his target audience, ignore also that elitism is no part of any institutional press privilege. If that were so, there would be some distinction as to which persons are elite, and which are not. There isn’t any. Anyone is free to set up his own institutional press, and take full advantage of every privilege a wise nation would protect to increase press freedom, instead of reduce it.

      This is about nothing except a right wing partisan war on the institutional press. It’s reckless. Ignorant, unwise, and reckless, actually.

      1. To quote the greatest lawyer of all time, “Everything that guy just said is bullshit.”

        There is not a shred of truth in anything you wrote. And it takes a lot of chutzpah from a guy who wants to keep expanding the scope of defamation to complain about a diminishment in press freedom.

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