The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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:
- 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.)
- 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.
- 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.