Free Speech

Do Ordinary Speakers Have Lesser First Amendment Rights Than Newspapers Do?

"Yes," the Minnesota Supreme Court said in 1980 -- now it's being asked to reconsider that.


I have long argued that the answer is "no"—that the "freedom of the press" is the freedom of all to use mass communication technology (the printing press and its heirs) and not just the freedom of a particular industry (the institutional media). The Supreme Court agrees, as do most lower courts. But a few states do deny non-institutional-media speakers the same First Amendment protections that the institutional media gets; and Minnesota is one of them.

Thus, in the recent Maethner v. Someplace Safe, Inc., the Minnesota Court of Appeals held that a libel plaintiff could recover presumed damages (i.e., damages not supported by specific evidence of lost business opportunities or other harms stemming from injury to reputation) even without a showing that the defendants knew the statements were false or likely false. In Gertz v. Robert Welch, Inc. (1974), the Supreme Court held that this was not allowed when it comes to statements on matter of public concern, even when the plaintiff is a private figure. But Minnesota precedents say that this doesn't apply to speech outside the institutional media.

Here, Someplace Safe ("a nonprofit organization that provides advocacy and other services for victims of violence and domestic abuse") gave a "Survivor Award" to a woman, and published an article by the woman in which she described her "surviving domestic violence." Her ex-husband sued, saying that the article would be understood by reasonable community members as accusing him of having abused the ex-wife. The appellate court let the case go forward, reasoning partly that "[t]he media, and related concerns to protect constitutional rights under the First Amendment, were not involved."

The defendants have recently asked the Minnesota Supreme Court to review the case, and I filed an application to file an amicus brief—with invaluable help from local counsel John Arechigo, as well as my student Jason Lawler—on behalf of our own Dale Carpenter (formerly of the University of Minnesota), Prof. Raleigh Levine (Mitchell Hamline), Prof. Greg Sisk (St. Thomas), Scott Johnson (of the Powerline blog), and myself. In Minnesota, such an application technically seeks leave to file a brief in the case if and when the court grants review, but in practice it sometimes explains why review would be helpful. Here is the heart of what we say:

Applicants support the position of Appellants on Issue 1 set forth in the Someplace Safe petition. In their brief, they plan to argue the following:

[1.] Though this Court's precedent in libel actions, Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 258 n.5 (Minn. 1980), concludes that the Free Press Clause applies differently to media and nonmedia speakers, the U.S. Supreme Court has long held that the First Amendment protects the "press" not as an industry but as a technology­, covering all people who use the printing press and its technological descendants.

Most recently, in Citizens United v. FEC, 558 U.S. 310 (2010), the Supreme Court expressly endorsed the view that "the institutional press" has no "constitutional privilege beyond that of other speakers," id. at 352 (internal quotation marks omitted). And in the process the Court endorsed the view of five concurring and dissenting Justices in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985), which specifically rejected a media/nonmedia distinction in libel cases.

Indeed, the principle that nonmedia speakers are entitled to the same protection as media speakers is firmly established. In New York Times Co. v. Sullivan itself, the Court reversed an award of presumed damages against both the Times and several nonmedia defendants, applying the same "actual malice" test to both. 376 U.S. 254, 279-80 (1964). That holding in turned relied, id. at 280-82, on Coleman v. MacLennan, 98 P.281 (Kan. 1908), which noted that "the present consensus of judicial opinion is that the press has the same rights as an individual, and no more." Id. at 286. And immediately after New York Times v. Sullivan, the Court applied its holding to two nonmedia defendants. See Garrison v. Louisiana, 379 U.S. 64, 64-67 (1964) (statements made by a district attorney at a press conference); Henry v. Collins, 380 U.S. 356, 357 (1965) (statements made by an arrestee in a private letter to the sheriff and in a press release to wire services, see Henry v. Pearson, 158 So. 2d 695, 696 (Miss. 1963)).

Unsurprisingly, media and nonmedia speakers are treated equally in other areas of First Amendment law as well. In leafletting cases, the Court expressly extended the Free Press Clause to nonmedia defendants, writing, "[t]he press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion." Lovell v. City of Griffin, 303 U.S. 444, 452 (1938). The Court likewise refused to grant to the institutional media a "constitutional right of special access to information not available to the public generally," Pell v. Procunier, 417 U.S. 817, 833 (1974) (citation omitted), or any special privileges for claims involving copyright law, labor law, and many other areas of the law. See Eugene Volokh, Freedom for the Press as an Industry or Technology? From the Framing to Today, 160 U. Pa. L. Rev. 459, 506-21 (2012) (citing the cases on this point, and discussing them in detail).

Even before the Internet age, the media/nonmedia distinction was thus condemned by the Supreme Court as creating an unsound inequality of constitutional rights. And as the Internet makes lines between professional media and nonmedia speakers are getting ever more blurred, the media/nonmedia distinction becomes especially unsound and unworkable.

[2.] Eighth Circuit caselaw likewise requires a showing of "actual malice" in such cases. "The fact that . . . Gertz involved media defendants . . . is in our view irrelevant to the question of what level of constitutional protection [the defendant's First Amendment] right is to receive." In re IBP Confidential Bus. Documents Litig., 797 F.2d 632, 642 (8th Cir. 1986). If the defendants in this case were not citizens of Minnesota, and thus removed the case to federal district court, they would have been immune from presumed damages absent a showing of "actual malice."

[3.] Every other federal circuit court to consider this issue has likewise held that the First Amendment applies equally to media and nonmedia speakers in defamation actions. "[A] First Amendment distinction between the institutional press and other speakers is unworkable." Obsidian Fin. Grp., LLP v. Cox, 740 F.3d 1284, 1291 (9th Cir. 2014) (so holding in an Internet speech case). "Any effort to justify a media/nonmedia distinction rests on unstable ground, given the difficulty of defining with precision who belongs to the 'media.'" Snyder v. Phelps, 580 F.3d 206, 219 n.13 (4th Cir. 2009), aff'd, 562 U.S. 443 (2011). See also Flamm v. Am. Ass'n of Univ. Women, 201 F.3d 144, 149 (2d Cir. 2000); Avins v. White, 627 F.2d 637, 649 (3d Cir. 1980); Garcia v. Bd. of Educ., 777 F.2d 1403, 1410 (10th Cir. 1985); Davis v. Schuchat, 510 F.2d 731, 734 n.3 (D.C. Cir. 1975).

[4.] Indeed, even Minnesota Court of Appeals cases sometimes follow the federal lead in such matters, and state that, "[w]ith matters of public concern . . . recovery of presumed damages cannot be permitted on less than a showing of the New York Times actual malice standard." State v. Turner, 864 N.W.2d 204, 209 (Minn. Ct. App. 2015) (citing Gertz); see also C.S. McCrossan v. Poucher, 1992 WL 213468, *1 (Minn. Ct. App. 1992) (nonprecedential) (citing the Gertz test as authoritative in a case involving a private figure plaintiff, a nonmedia defendant, and speech on a matter of public concern); Strauss v. Thorne, 490 N.W.2d 908, 914 n.1 (Minn. Ct. App. 1992) (Crippen, J., concurring in part, dissenting in part) (noting tension between Stuempges and Dun & Bradstreet).

[5.] Plaintiff Kurt Maethner should therefore be unable to recover presumed damages in this case absent a showing of "actual malice"—knowledge or reckless disregard that the statements were false. That is what the Court held for statements on matters of public concern, even about private figures. Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974). "[T]he treatment of battered women" is a matter of public concern. Diesen v. Hessburg, 455 N.W.2d 446, 450 (Minn. 1990). Likewise, "sexual abuse of children by their parents" is "certainly of public concern." Richie v. Paramount Pictures Corp., 544 N.W.2d 21, 26 (Minn. 1996). It follows that abuse of women by their spouses is, too.

Yet the court below did not require a showing of "actual malice." In this, the court followed this Court's lead in Stuempges (see Someplace Safe Pet. Add. 40), which—five years before Dun & Bradstreet—held that Gertz "applies only to media defendants." 297 N.W.2d at 258 n.5. The Stuempges decision may have reached the right result on its facts, which appeared to involve a matter of purely private concern—Dun & Bradstreet held that, in private-concern cases, a showing of "actual malice" is not required for presumed damages. But the media/nonmedia distinction that Stuempges adopted was expressly rejected by a majority of the Justices in Dun & Bradstreet, and has since then been rejected by the majority opinion in Citizens United.

We express no view on whether the ex-husband was indeed libeled by the ex-wife and by Someplace Safe; we argue only that the same First Amendment rules should be applied here as they would be to institutional media defendants.

UPDATE: Just to be clear, we're speaking here of First Amendment protections. Legislatures can add statutory protections in addition to those offered by the Constitution, and those sometimes specially target the institutional media, or even particular kinds of media (such as newspapers but not books): Classic examples are some states' newsgatherer's privilege statutes, as well as some statutes that let newspapers or broadcasters reduce their exposure to damages if they publish a prompt retraction. We express no opinion on whether such statutes are a good idea; we say only that the Constitution itself protects various publishers equally. (That includes any First Amendment newsgatherer's privilege; courts are divided on whether such a privilege exists, but those that do almost exclusively extend it to non-media-industry newsgatherers as well as professional journalists, see pp. 523-25 of this article.)

NEXT: District Judge Generally Rejects Plea Bargaining

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  1. Are you arguing that a reporter should have no right to protect the confidentiality of her sources? Or, are you arguing that she should continue to have this right, and all non-media people should also have the right to refuse to disclose our sources of information? (I doubt you’re arguing the latter, but want to make sure of this.)

    I understand, of course, that there is no federal right to protect one’s sources. But there are, I recall, 49 states + DC that do have some version of shield laws in place (with Wyoming, oddly, being the exception).

    This is a bit outside what you were talking about in your OP. But it is an example of reporters (ie, a subsection of the media) having more rights than ordinary speakers, yes? Or are shield laws not considered to be a part of Free Speech protections???

    1. If someone – reporter or otherwise – gathers information specifically to inform the public, and some of the information is provided on a confidential basis, then I would hope that the same rules would apply regardless of affiliation with institutional media.

      So even if someone isn’t a professional reporter, but “merely” blogs in their spare time, and they get confidential info from a source who specifically conveys the information for publication in the blog, then I’d say the situation is the same as for a professional reporter at the NY Times.

      The details of a shield rule – I’m not really sure, I suppose it would depend on how desperately the system needed the info – eg, the identity of a murderer vs. the identity of a whistleblower.

      Maybe people who provide confidential info for publication can get whistleblower protections which should shield, by proxy, the people who publish the info.

      1. Yes, but much depends on the nature of the “whistleblowing” at stake.

        So-called “satire,” for example, serves what is basically the same purpose as whistleblowing (namely, to expose and condemn the misconduct of others). Now, when we read a professional Onion parody, we usually know that it’s satire (unless we’re foreigners or FBI agents unfamiliar with the institution, as has been known to happen), but when we read emails or tweets distributed by amateurs in the “names” of others, it’s often a bit more difficult to recognize the irony. Not so, Eugene?

        Furthermore, as I think Eugene would also agree, if a “satire” written by an amateur private citizen is not clear, and if it is not sufficiently puerile, and can be construed as having been written with the intent to damage a reputation rather than convey an “idea,” then it is unprotected conduct rather than speech, and its author ? if he is enough of an amateur ? should be arrested, prosecuted, and jailed, unless he can prove beyond a reasonable doubt that his intent was satirical. In this regard, allow me to vehemently protest the recent refusal of the New York Criminal Court to jail our nation’s leading criminal “parodist.” This decision clearly conveyed more than a small degree of disrespect for the prosecutorial institution, and should be viewed accordingly. See the documentation at:

        1. Finally! There is a great way how you can work online from your home using your computer and earn in the same time… Only basic internet knowledge needed and fast internet connection… Earn as much as $3000 a week… >>

    2. “Are you arguing that a reporter should have no right to protect the confidentiality of her sources?”

      As far as I know, no federal court has officially recognized a reporter/source privilege.
      In fact, as recently as 2014 the US Supreme Court refused to even consider a case of a reporter facing contempt charges in federal court for refusing to reveal a source.

      Supreme Court declines case of reporter seeking to protect confidential source

      Some states have created such a privilege statutorily, but that would only apply in those state’s state courts.

      1. Courts are wise not to recognize a reporter source privilege, and equally wise not to abolish it as a matter of law. Likewise, courts are wise not to extend such a privilege on the basis of equality to all speakers. To do that would burden due process rights of litigants in nearly every case where a party wished not to respond to questions, or compelled production of evidence.

        The right practice for courts is to tailor case-by-case fudges, sometimes punishing (but not too severely, or for too long) failures of the institutional media to reveal confidential sources. And on no account should courts extend that case-by-case scrutiny to all speakers who are not associated with institutional media. In any rare cases where not-institutionally-associated speakers practiced news gathering as if they were institutionally associated, courts would be wise to consider exceptions on that basis.

        For a more general discussion of why institutional media and private speakers can not be privileged alike without loss of more rights than the practice would protect, see my previous comment at 6:39 pm.

      2. MatthewSlyfield: It turns out that most of the circuit courts to have considered the issue have recognized such a privilege — for non-institutional-media newsgatherers as well as the institutional-media ones — but several have not. (I think those that have recognized the privilege are misreading Branzburg v. Hayes, but that’s a separate matter.)

        Also, a minor point: State journalist privileges do apply in federal courts, when the underlying case is based on state law. See Fed. R. Evid. 501.

    3. Good question — just added an update to discuss this. Short version: If there’s a First Amendment newsgatherer’s privilege, it applies equally to professional media newsgatherers and to others (and almost all the lower courts that have considered this have so held). State statutes may create additional statutory protections just for professional media, but that is a separate matter.

  2. Just out of curiosity, I wonder what the original understanding is with respect to presumed damages. If someone’s accused of a crime in a publication (and even in the founding era, contrary to myth, wifebeating was a crime), then should it be assumed that this harms the person’s reputation, or should they have to give specific evidence of lost employment, boycott of his business, etc?

  3. That was the position of mccain feingold – and was essentianally Stevens dissent in CU

  4. Do Ordinary Speakers Have Lesser First Amendment Rights Than Newspapers Do?

    That oversimplifies so much that it risks misleading people not well versed in journalistic practice. It invites inference that absolute equality among speakers adequately protects institutional media. That is not so. Without specific protections unneeded by most ordinary speakers, Constitutional protection for speech by institutional media will not be adequately protected.

    A distinction lies in the difference between publication of private opinion?of the sort typical of non-institutional speakers?and publication following news gathering?a typical practice of the institutional press. That too must be protected, or speech freedom for the institutional press disappears. But to extend universally the means to protect news gathering?especially in cases involving confidential sources?would violate due process rights of litigants?rights of equal importance to free speech.

    That fundamental and unavoidable conflict cannot be explicitly solved as a matter of law, without abolishing rights on one side or the other. For many years courts have wisely tailored case-specific fudges of various sorts, to avoid choosing sides. It is all that can be done. This is a legal problem that must never be solved, because doing so would cost rights, not protect them.

    1. If “institutional media” cannot survive without special exclusive privileges, everyone should dance in the streets celebrating as it is dragged to the guillotine of equal justice under law and publicly executed. The Constitution contemplates no special class of guardians of the republic, and the self-important delusions of self-appointed guardians deserve nothing but scorn, plus maybe an occasional fist to the gut of face for their high-handed presumption. A “journalistic practice” that depends on the rest of the country being second-class citizens is a cancer of the body politic to be cut out and incinerated. Judges should force the issue, and if they refuse, should find themselves replaced by judges who will.

      1. What can’t survive without special privileges for institutional media is speech freedom. Even without privileges, institutional media can do just fine. Better, actually. Speech which those privileges protect isn’t the moneymaking part of the media business. It’s the crucial access-to-information part. That is more expensive to provide, and more controversial to support. For decades, business managers across media of all types have trimmed away at it, with an eye to becoming more profitable.

        You sound as if you don’t realize this?putting you in plentiful company on the political right?but without capabilities protected by customary privilege for institutional media?mostly legacy media, by the way?you wouldn’t know a damn thing about what is going on in this country?and you wouldn’t be able to find on the internet any replacement for what you lost. Why? Because nobody has yet conjured an internet business model to support legacy-media-type news gathering. Such a prolonged fruitless search suggests that business model may not be possible.

        So good luck in your ignorance. Maybe habitual belligerence can carry you through.

        By the way, you’re wrong about the Constitution, too. The 2A’s press freedom clause was explicitly about newspapers?as a class of guardians of the republic, actually?which familiarity with the founding era historical record would have shown you, if you had it.

        1. Hilarious watching you ignorantly call out ignorance with your own ignorance. And no this is a defense of the dumb reverand. Fordt you imply any and all regulations of speech is right wing while ignoring the plethora of evidence of left wing shut downs on speech. Bad mouthing the media is not a regulation on speech. This from the party that thought media regulation of Venezuela was a good thing and thinks people should lose their speech rights merely for using their rights of assembly through corporation.

          You then talk about the founding of the Father’s who largely utilized their solely formed newspapers and fliers to spread speech, not incorporated presses. Franklin had his own printing press. They didn’t want to limit speeches to only the rich or corporate companies. To believe so shows your own ignorance.

          1. This is not a defense*

            1. Another gullible yahoo snared.

              1. Arty, stop pestering your betters.

        2. The 2A’s press freedom clause was explicitly about newspapers

          So you’re going to completely ignore Prof. Volokh’s scholarship to the contrary?

          1. DN, I defer with confidence to Professor Volokh on matters of legal history. I know better sources for questions relating to the founding era more generally, and for the years preceding.

            The sticking points tend to be at the intersection. The intervention of a revolution, and the installation of a new legal foundation thereafter should make any historical interpreter cautious about extending pre-Constitutional legal doctrine into the post-Constitutional era. A lot changed abruptly at that point, in ways unconstrained by previous law. That’s a point habitually overlooked among legal historians, especially including legal historians from the immediate post-Constitutional era.

            It may be that the post-Constitutional courtroom muddled along with heavy reliance on pre-revolutionary English common law. It’s a mistake of historical reasoning to suppose that knowing that tells you much about what the Constitution meant to the people who wrote it.

            To illustrate with an example relevant to this thread, I don’t think anyone can understand founding era attitudes toward an institutional press, and why the founders wanted it protected, without more detailed knowledge of Ben Franklin’s biography?and the various newspaper projects run by others which he sponsored?than a legal historian is likely to have. For that, read historian Edmund Morgan, not Eugene Volokh.

          2. And here I thought press freedom was 1A not 2A as SL, the self appointed know-it-all claims.

            1. Flame, do you really suppose an obvious typographical error and ignorance are the same thing? Or are you just playing the pedant for who-knows-what reason? Undoubtedly Nieporent noticed that same lapse. Yet you didn’t see him try to create some kind of issue where nothing real exists. That’s part of why Nieporent is a higher grade of right-wing commenter than most of the ones who show up here. In his own field, Nieporent has expertise which a layman is bound to respect?and he intelligently couples that with reticence about subjects he doesn’t know. And he avoids silliness. You could do worse for an example.

              Of course it is difficult for many “originalist”-oriented commenters to reply substantively to comments which reference either the historical record, the practice of history, historical experts, or canonical methods of historical reasoning?some of which they know little about?except for the others, which they never suspected even existed. And they do get disappointed and surly when the protection they thought the term “originalist” might confer is challenged by calls to make their comments historically substantive after all.

              What that shows is not the “ignorance” of people like me. Truth to tell, I have an inkling of historical education, but fall short of professional-level knowledge and skill. Instead, it shows the bankruptcy of “originalist” reasoning which imparts to too many of its practitioners assurance, without any knowledge at all.

        3. “By the way, you’re wrong about the Constitution, too. The 2A’s press freedom clause was explicitly about newspapers?as a class of guardians of the republic, actually?which familiarity with the founding era historical record would have shown you, if you had it.”

          Thanx for publicly demonstrating your ignorance SL. Seriously, I was taught that the 2A is the Right to Keep and Bear Arms Shall not be infringed. 1A is Freedom of Religion, Freedom of Speech, Freedom of Press, Right to Assemble and Right to Petition Gov’t for Redress of Grievances.

      2. Good Lord, I find myself in agreement with Kirkland.

        1. You are victim of a combination of gullibility, partisanship, and your self-described social interaction problem, Mr. Bellmore. You agree with Intolerant, Bigoted Mini-Me, not with the genuine Rev. Arthur L. Kirkland.

          I do not blame you, however. The blog’s proprietor could resolve the problem — and, I am confident, would, if he perceived that doing so would promote movement conservatism.

      3. Hello, again, Disaffected Right-Wing Mini-me.

        I encourage you to watch The Post and Spotlight. They might help you understand the relevant issues.

        I encourage Prof. Volokh to try to recognize that his decisions (1) to ban Artie Ray Lee Wayne Jim-Bob Kirkland from the Volokh Conspiracy comments (for the crime of criticizing conservatives) and (2) to enable a disingenuous right-wing commenter to continue to masquerade as me reflect tellingly and poorly on his habits with respect to publication standards, partisanship, and censorship. The Post and Spotlight might provide helpful illumination of those issues, too. It’s never too late to improve, professor.

        1. Funny that your sock puppet was supposedly banned for criticizing conservatives, but you are still here, freely bashing conservatives. It’s almost as though you are lying or misrepresenting what actually happened.

          Coming from an intolerant, illiberal such as yourself though, that’s hardly a surprise.

          Carry on Reverend Clinger.

          1. I’m getting concerned for RAK.

          2. Artie Ray Lee Wayne Jim-Bob Kirkland was banned from this right-wing blog by its conservative proprietorship. No reason was provided at the time nor has any been provided since. Prof. Volokh seems to prefer to avoid the issue — perhaps because he recognizes that banning Artie Ray (for poking fun at conservatives) was a bad call, particularly for someone who styles himself as a champion of expression.

      4. “The Constitution contemplates no special class of guardians of the republic, and the self-important delusions of self-appointed guardians deserve nothing but scorn. . . . ”

        Uh oh…better not let the gununts see that statement.

        1. Nah, we’re not Platonic, so it’s ok. 😉

  5. There is a provision in the Texas Civil Practice & Remedies Code, section 51.014(a)(6), which gives a special procedural privilege to media defendants, and those published by them, to bring as a matter of right an interlocutory appeal from the denial of a motion for summary judgment based on First Amendment speech or press grounds.

    In SEIU Local No. 5 v. Professional Janitorial Service of Houston, Inc, 415 S.W.3d 387 (Tex. App.?Houston [1st Dist.] 2013), a union sought to qualify as “a member of the electronic or print media” in order to pursue such an interlocutory appeal. The defamation plaintiff suing the union argued that it wasn’t, and the appellate court agreed, with a long song and dance about how you have to make a living in media to qualify. This blog probably isn’t a “member of the electronic or print media” under that statute as so interpreted, for example.

    I think that’s consistent with the language of the statute and the Texas Legislature’s intent, for this is a thoroughly tort-reformed state that is universally and reflexively hostile to defamation plaintiffs. But I also think this special privilege for “media” defendants violates the First Amendment to the U.S. Constitution.

    1. My Clinic students and I actually filed an amicus brief in SEIU, urging the Texas Supreme Court to review the case, arguing that the union was a member of the electronic media, essentially running a modern equivalent of the union newspapers of yore. That court, sorry to say, declined to review the case, though Justice Don Willett (now a Fifth Circuit judge) wrote an interesting dissent from the denial of review.

      1. IMHO the court(s) did the union, SEIU, a large favor with their decision.

      2. This is gratifying to learn, and actually not very surprising. I didn’t know about Justice (now Judge) WIllett’s dissent. Did the union really “conced[ed] that not ‘anyone with a computer, a website or a blog’ should be afforded interlocutory protection”? I’d argue exactly the opposite ? that the computer is the modern-day soapbox and the internet the modern-day printing press, and that I’m practicing “journalism” (obviously without a license!) and acting as a member of the electronic media simply by posting this comment.

        Keep me in mind, Prof. V, if you ever need a pro-First Amendment Texas lawyer on one of your projects, including those that are pro bono publico.

        1. I’ll at least help you shout, “Bueller …? Bueller …?” at the SCOTUS with a Texas accent.

        2. Beldar, that you are speaking is undeniable. That you are publishing is undeniable. That this blog is your publisher is undeniable. That this blog practices journalism is undeniable. That this blog publishes opinion is undeniable. That you publish opinion is undeniable. That you practice journalism?

          Are there facts to support that? That all comes before you get to the question of whether you practice institutional journalism, which you may, but as a member of what institution, which publishes where? I suggest this blog cannot qualify you for that, because it lacks one of the defining features of institutional journalism, which is edited content.

          Of course, that’s just my opinion. I have no notion how a court might choose to define institutional journalism. I suggest, however, that if a court offered a definition of institutional journalism which excluded both news gathering and edited content, that would take the court quite far afield from the customary definition.

          1. I don’t even disagree, but I feel like the definition of Platonic Journalism is somehow kindred with Scalia’s homage to platonic Golf in PGA v. Martin.

  6. Someday I’m going to have a defamation defendant client who, like the union in the case referenced just above, is not obviously a member of the mainstream media who loses on summary judgment in a defamation case, and I’m going to perfect an interlocutory appeal, and my opponent will move to dismiss it, and I’ll make my objection and record to document that I’ve properly raised my constitutionality objections to the Texas statute. And then I’ll email you for help, Prof. V. 🙂

  7. While the privileges of the “informal” press and the organized media should be the same, are you saying that the author of the article (the ex-wife) should also be immune from presumed damages? Seems to me the two situations stand on a different footing, in which the actual speaker should remain liable (though she may, but may not, be judgment-proof) while the publisher, as publisher, should have no liability absent *their* actual malice (which presumably also includes reckless disregard). Otherwise, you’ve opened a truck-sized loophole whereby revenge-seekers can defame away through the expedient of publishing on somebody else’s blog.

    1. The relevant First Amendment rule (set forth by Gertz) doesn’t categorically immunize defendants from having to pay presumed damages in such cases — it just requires plaintiffs to show that the defendants knew the statements were false (or likely false), the so-called “actual malice” standard. It may be easier to prove such knowledge as to the ex-wife than as to the organization (or, in a different hypothetical, a newspaper reporting on the ex-wife’s allegations). But the legal standard should be the same.

      1. Professor Volokh, are you omitting the reckless disregard standard, or suggesting that it is no part of the actual malice standard? I don’t ask that rhetorically. I thought I recalled it was part of the standard, but in that I’m mindful that I could be mistaken in my memory, or that it might once have been so, but might since have been trimmed out.

  8. ” those sometimes specially target the institutional media, or even particular kinds of media”

    And, the update seems to argue that if they “specifically” do so, it would be unconstitutional since that would be favoring some speakers over others, at least if the alternative is that (e.g., testimonial immunity in limited cases) a person could be penalized, even jailed, for not testifying while certain members of the media would not.

    The institutional media is selectively favored by the Supreme Court of the U.S. as seen during the SCOTUSBlog press credentials controversy where even someone who reported SCOTUS news for fifty years could not receive credentials as a member of that blog. Credentials bring certain privileges that others do not receive and the only thing that seems to justify it is that the institutional press of some sort receives some special treatment in certain cases.

    Sonja West has written a lot about this, providing some challenges to the Volokh approach.

    1. Joe_JP: I don’t think the update at all argues that statutory protections that are limited to particular classes of media (e.g., professional but not amateur, or daily newspapers but not monthly magazines) are unconstitutional. There are interesting questions about what sorts of selectivity in such extra protections are permitted; but such content-neutral medium classifications would not be unconstitutional. There are similar questions about protections offered by government officials acting to control access to their property (such as press credentialing for access to certain government proceedings), though there are complexities with that.

      The post is arguing solely about the First Amendment protections, which it argues apply equally to all speakers who use mass communications media.

      1. So, the Constitution protects all speakers equally but likewise it is granted for the purpose of this post that the Constitution also will uphold state laws that treat them unequally, including if some speakers will have to go to prison for not testifying or SCOTUSBlog won’t have the benefits of access to the Supreme Court while Washington Post will though such questions are “interesting” in nature.

        I find this somewhat illogical. It seems to me that the First Amendment requires a basic equality, including regarding discretionary state protections, in the area of “the press.” As I hedged, “at least,” this would be true for cases where the benefit is particularly important. The argument is that the First Amendment “apply equally to all.” If so, a nobility among discretionary privileges would put some above others.

        This is somewhat illogical. Access to a meeting might be discretionary but different religions cannot be benefited, even if the state can deny access to all. Why you selectively would uphold a broad view of press equality here selectively is unclear to me.

        1. Joe_JP, you raise an interesting and telling question. That said, as I have mentioned elsewhere, the inherent Constitutional conflict between a 1A privilege for news gathering, necessary for an institutional press, and the due process right to compel testimony, is a thorny problem. It seems impossible to reconcile it logically on a basis of perfect equality for all, without as a practical matter abolishing one set of rights or the other. Which is why I insist that this a problem which must never be solved. Leaving it unsolved will better protect Constitutional rights than any possible logical solution can do.

          1. I don’t know why you’re not getting that “freedom of speech”=freedom of the vocal word and “freedom of the press”=freedom of the printed word

        2. I’m not sure where you locate equity into the 1A.

  9. I am sure that no speaker considers themselves to be ordinary.
    I am likewise sure that certain individuals who publish (electronically or otherwise) are treated differently under the law than other individuals who publish in a like manner.
    I am sure that under the constitution, everyone with knowledge of a crime should be treated the same, regardless of any (possible) occupation.
    I am sure that none of this matters in the slightest.

  10. If anything, the institutional media has shown that it deserves less First Amendment protection than ordinary speakers.

    1. Why so fascist?

    2. Who are these ‘ordinary” speakers?

      Some well off person very well might be less “ordinary” than some local weekly.

      It is true, e.g., that Reason is at times less deserving than certain ordinary speakers.

      Deserving enough though.

  11. I think there’s an argument to be made that the answer is, and should be, yes.

    Here’s why:
    A person who is employed regularly as a reporter for a newspaper may be presumed to be “reporting” when they do something. Not irrebuttably so, but reasonably so. An “ordinary Joe” who does something may be reporting on it, for something other than a newspaper or something other than his regular job, but he’d have to establish that.

    It’s a tiny difference, but it is there.

    1. This would make more sense if the 1st amendment said anything about “reporting”.

      1. It would make even more sense if ‘reporting’ actually meant anything anymore – – – – – –

        1. Disaffected, resigned, anti-social right-wingers who express disdain for America’s best institutions are among my favorite conservatives.

          Keep up the good work, guys.

          1. I personally don’t have any distain for America’s best institutions. I just don’t think that the modern news organizations are among them.

            That isn’t to say that the 1st Amendment shouldn’t apply to them. Indeed, we should defend the rights of the most wretched among us, because they are the ones who need our protections the most.

            1. Epsilon, you’re wasting your time trying to have an honest discussion with Arty. He’s just another Bolshevist bigot.

        2. Certainly many on the left want there to be state licensing of journalists, which of course will only go to party members in good standing, and a few others who ‘have their mind right’ and are a ‘good one’. So the concept of enhanced 1st amendment protections for those people, coupled with restrictions for the great unwashed, are most certainly desirable for the progressive.

      2. “This would make more sense if the 1st amendment said anything about “reporting”.”

        I’m sorry. Is English not your first language? We have these things called “synonyms”, which are different words that mean the same thing. You’ll want to look in the concept…

  12. The relationship of the institutional press to the First Amendment is like the relationship of gun manufacturers and dealers to the Second Amendment.

    Both have built businesses upon the fact that certain activities are protected. That does not mean that they have more rights than anyone else. I don’t own firearms, but I have the same Second Amendment rights as Remington. But the fact that someone is engaged in continual activities related to that right means they have more at stake, and would be more like affected, by any infringement on those rights.

  13. By the by, something in a news report jumped out at me the other day that sparked some legal thought.

    It seems there has been a rash of politically motivated violence of late. Someone walks into a public place wearing a MAGA hat, and gets beaten up.

    Here is the question: should there be laws that have increased penalties for politically motivated crimes? As there is for hate crimes?

    The Supreme Court has said you can have enhanced penalties for criminal activities if motivated by certain kinds of hatred — mainly racial, but also gender, religious and other forms. The rationale was it is more disturbing to society to commit violence for that motivation than for others.

    Meaning, if you beat someone up because of his race, that is worse than if you beat someone up to steal his wallet, since the former creates greater societal disruption than the latter. (Not saying I agree, but that was the theory.)

    So how about politically motivated violence. That strikes me as having at least as much potential for societal disruption as racially motivated violence.

    So how about adding political motivation to the list of hate crimes?

    1. “Meaning, if you beat someone up because of his race, that is worse than if you beat someone up to steal his wallet, since the former creates greater societal disruption than the latter. (Not saying I agree, but that was the theory.)”

      That’s not the theory. This is:
      When a person uses force to intimidate a person because of their race, religion, or national origin, the person who directly received the physical violence is a victim of the crime, because they were physically harmed, but the intent of the crime was to intimidate all the persons who share the same race, religion, or national origin, so they are victims as well to the extent that they are actually intimidated.

      Crimes that have more victims are punished more harshly than crimes that are otherwise similar but have fewer victims. The so-called “hate-crimes” laws simply add punishment to the sentence to account for the additional victims.

      1. James Pollock, seems like there is an argument that Bored Lawyer’s theory on political violence fits your definition regarding hate crimes?intimidation of a broad class of victims in each case.

        And maybe Bored Lawyer also picks up a bit of tangential support from the right of (note) peaceable assembly.

        Interesting speculation from Bored Lawyer.

      2. From Wisconsin v. Mitchell which upheld Wisconsin’s hate crime statute:

        Moreover, the Wisconsin statute singles out for enhancement bias inspired conduct because this conduct is thought to inflict greater individual and societal harm. For example, according to the State and its amici, bias motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest. . . . The State’s desire to redress these perceived harms provides an adequate explanation for its penalty enhancement provision over and above mere disagreement with offenders’ beliefs or biases.

        So it is really both — greater potential for social unrest and greater emotional harm on the victim.

        All of which applies, IMO, to politically motivated violence.

  14. You nailed the federal case law. Minnesota is clearly wrong.

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