Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today

The Free Press Clause, my research led me to conclude, has long been understood as equally protecting all who speak using the means of mass communications -- not just professional journalists and the like.

The comments on my recent Do Ordinary Speakers Have Lesser First Amendment Rights Than Newspapers Do? post reminded me that many people think that in the Framing era "the freedom of the press" referred to the freedom of newspapers and similar professional media institutions. But the historical record, I think, clearly opposes this view; indeed, from the late 1700s through the 1800s and into the 1900s the overwhelming view was that the media don't have any more constitutional rights than the rest of us. And since this question perennially arises, I thought I'd serialize my 2011 Penn Law Review article on the subject here, at least focusing on the early American history.

I begin here with the Introduction, and will then move on to the specific evidence in coming posts (with most footnotes omitted). But you can read it all in one fell swoop, if you'd like, here, in PDF form.

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"[T]he freedom … of the press" specially protects the press as an industry, which is to say newspapers, television stations, and the like—so have argued some judges and scholars, such as the Citizens United v. FEC dissenters and Justices Stewart, Powell, and Douglas. This argument is made in many contexts: election-related speech, libel law, the journalist's privilege, access to government property, and more. Some lower courts have indeed concluded that some First Amendment constitutional protections apply only to the institutional press, and not to book authors, political advertisers, writers of letters to the editor, professors who post material on their websites, or people who are interviewed by newspaper reporters.

Sometimes, this argument is used to support weaker protection for non-institutional-press speakers than is already given to institutional-press speakers. At other times, it is used to support greater protection for institutional-press speakers than they already get. The argument in the latter set of cases is that the greater protection can be limited to institutional-press speakers, and so will undermine rival government interests less than if the greater protection were extended to all speakers.

But other judges and scholars—including the Citizens United majority and Justice Brennan—have argued that the "freedom … of the press" does not protect the press-as-industry, but rather protects everyone's use of the printing press (and its modern equivalents) as a technology. People or organizations who occasionally rent the technology, for instance by buying newspaper space, broadcast time, or the services of a printing company, are just as protected as newspaper publishers or broadcasters. [Footnote: Alternatively, one could conclude that people who rent such access become members of the press-as-industry for those occasions. But then the results would be the same as under the press-as-technology view, because anyone who occasionally uses the press as a technology would be treated the same as members of the press-as-industry.]

Under this approach, the First Amendment rights of the institutional press and of other speakers rise and fall together. Sometimes, this approach is used to support protection for non-institutional-press speakers and to resist calls for lowering that protection below the level offered to institutional-press speakers. At other times, it is used to rebut demands for greater protection: Extending such protection to all speakers, the argument goes, would excessively undermine rival government interests—yet allowing such protection only for the institutional press would improperly give the institutional press special rights.

Both sides in the debate often appeal at least partly to the constitutional text and its presumed original meaning. The words "the press" in the First Amendment must mean the institutional press, says one side. The words must mean press-as-technology, says the other. Citizens United is unlikely to settle the question, given how sharply the four dissenters and many outside commentators have disagreed with the majority. So who is right? What light does the "history" referred to by the Citizens United dissent shed on the "text" and the Framers' "purpose"?

The answer, it turns out, is that people during the Framing era likely understood the text as fitting the press-as-technology model—as securing the right of every person to use communications technology, and not just securing a right belonging exclusively to members of the publishing industry. The text was likely not understood as treating the press-as-industry differently from other people who wanted to rent or borrow the press-as-technology on an occasional basis.

Parts I, II, and III set forth the evidence on this subject from the Framing era and the surrounding decades. Part I discusses, among other things, early reference works and state constitutions that described the freedom of the press as a right of "every freeman," "every man," or "every citizen." This right was generally seen as the right to publish using mass technology, as opposed to the freedom of speech, which was seen at the time as focusing more on in-person speech.

Part II discusses the Framing-era understanding that the freedom of the press extended to authors of books and pamphlets—authors who were generally not members of the press-as-industry, though they did use the press as technology. Part III goes on to discuss fifteen cases from 1784 to 1840 that treated the freedom of the press as extending equally to all people who used press technology, and not just to members of the press-as-industry. To my knowledge, these cases have not been discussed before in this context. Each of the sources standing alone may not be dispositive. But put together, they point powerfully toward the press-as-technology reading, under which all users of mass communications technologies have the same freedom of the press.

Part IV turns to how the "freedom … of the press" was understood around 1868, when the Fourteenth Amendment was ratified. Much recent scholarship has suggested that originalist analyses of Bill of Rights provisions applied to the states via the Fourteenth Amendment should consider the original understanding as of 1868 in addition to that of 1791. And it turns out that around 1868, it was even clearer that the "freedom … of the press" secured a right to use the press-as-technology, with no special protection for the press-as-industry. Part V offers evidence that this remained true from 1880 to 1930.

Part VI then looks at how the Supreme Court has understood "freedom … of the press" since 1931, the first year that the Court struck down government action on First Amendment grounds. Throughout that time, the press-as-technology view has continued to be dominant. Many Supreme Court cases have officially endorsed this view. No Supreme Court case has rejected this view, though some cases have suggested the question remains open.

Part VII turns to how the "freedom … of the press" has been understood by lower courts since 1931, and concludes that the press-as-technology view has been dominant there as well. The first lower court decisions I could find adopting the press-as-industry view did not appear until the 1970s. Even since then, only a handful of cases have adopted such a view, and many more have rejected it. (The press-as-industry cases that this Part identifies could also be helpful as test cases for any future work that discusses the policy advantages and disadvantages of the press-as-industry model.)

None of the evidence I describe specifically deals with corporations, the particular speakers involved in Citizens United, but it does show that the institutional media has historically been seen as the equal of other people and organizations for purposes of the "freedom … of the press." The constitutional protections offered to the institutional media have long been understood—in the early republic, around 1868, from 1868 to 1970, and in the great bulk of cases since 1970 as well—as being no greater than those offered to others.

Finally, the Conclusion briefly discusses what effect this analysis should have on the Court's interpretation of the Free Press Clause. Of course, text, original meaning, tradition, and precedent have never been the Supreme Court's sole guides. But any calls for specially protecting the press-as-industry have to look to sources other than text, original meaning, tradition, and precedent for support.

[Footnote moved:] I speak here of communications technologies that today serve the role the printing press did in the 1700s, not just of the printing press as such. "It is not strange that 'press,' the word for what was then the sole means of broad dissemination of ideas and news, would be used to describe the freedom to communicate with a large, unseen audience," even using new technologies that were not known to the Framers. The printing press itself was understood during the Framing era as a technological innovation, and existing rights were understood as being adaptable to technological innovations. See Thomas Hayter, An Essay on the Liberty of the Press Chiefly as It Reflects Personal Slander 3-4 (London, J. Raymond 1754); Francis Ludlow Holt, The Law of Libel 38-39 (1812).