MENU

Reason.com

Free Minds & Free Markets

VOLOKH CONSPIRACY

Mostly law professors, blogging on whatever we please since 2002 · Hosted by The Washington Post, 2014-2017 · Hosted by Reason 2017 · Sometimes contrarian · Often libertarian · Always independent

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.

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.

* * *

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.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • loveconstitution1789||

    Whether you combine freedom of speech and freedom of the press to cover digital transmission or you divide up some digital info is printed matter or whatever, the end result is the same.

    Government cannot limit what you say or write or express about government and business.

    Slander and libel are harm to individual people's reputation, but that is another can of worms.

  • Krayt||

    While I'm glad free speech is seen as including mass production and distribution of speech inherently, I'm glad freedom of the press, as in mass production (and implied distribution of same, these are one and the same on the Internet) is still in there because it's a once and future problem, especially in an era where there's an unending parade of laws and regulations attempting to define speech as behavior, and thus controllable. How much moreso is running a printing press a "behavior".

  • Quixote||

    Indeed, these "free speech" claims we keep hearing are way overblown. Surely the framers wouldn't have argued that Benjamin Franklin's reputation-harming hoaxes were a form of constitutionally protected "speech," rather than criminal conduct? That is obviously why Franklin himself hid his authorship of so many of those hoaxes. And that is why the distinctions drawn by the Second Circuit in our nation's leading criminal "satire" case, between so-called non-criminal speech that is sufficiently "puerile" or that can be construed as having been written with the intent to "convey an idea," and criminal speech sent with the intent "damage a reputation," is so unconvincing. To throw out 21 criminal convictions that Eugene Volokh himself argued were sound, on the basis of such excuses? An anonymous troll can mock a distinguished man in emails sent under his name, as long as they are sufficiently "puerile"? He can send emails under another's name, as long as his intent might be to convey an "idea"? Shame on the Second Circuit. In this regard, allow me also to vehemently protest the recent refusal of the NYC Criminal Court to jail the defendant in the same case, despite the points Eugene made in his widely shared discussion of the case. Such a decision clearly conveys more than a small degree of disrespect for the prosecutorial institution, and should be viewed accordingly. See the documentation at: https://raphaelgolbtrial.wordpress.com/

  • Brett Bellmore||

    The problem, I suppose, is the modern tendency to generalize "speech" to mean all modes of communications, whether verbal, written, artistic, symbolic.

    Generalizing it that way was done to extend the protection granted actual "speech" to a wide range of conduct which clearly isn't verbal. But it did render the separate protection of publishing redundant.

    But that doesn't mean you assign a new meaning to "the press" in order to resolve the redundancy. Perhaps you'd actually be better off recognizing that you've improperly generalized the word "speech".

  • CrispyBacon||

    I don't believe the terms are yet fully redundant. See "Reconsidering Citizens United as a Press Clause Case," by Michael W. McConnell in The Yale Law Journal. McConnell argues:

    "In the particular context of Citizens United, a focus on freedom of the press—rather than 'speech' more generally—would foster analytical clarity in two ways. First, it would help to differentiate the act of publishing one's opinions about a public official or candidate from the act of contributing money to a candidate or political party. The former is an exercise of freedom of the press; the latter is not. Second, focusing on freedom of the press would simplify the analysis as to whether for-profit businesses should be understood as within the scope of the freedom. Whatever doubts there may be about a business corporation's right to speak, assemble, petition, exercise religion, or object to an establishment of religion, there can be little doubt that a business corporation can operate a newspaper or produce and distribute a film....

    "If the Court had analyzed the case under the Press Clause, it could have avoided muddying the waters of campaign finance law governing contributions, which presents different constitutional considerations, and it would have sidestepped the controversy over whether for-profit corporations, in general, have constitutional rights."

  • Brett Bellmore||

    It's getting pretty muddy anyway, what with the push by the campaign censorship 'reformers' to treat favorable speech and publishing as 'in kind' donations.

    They don't really want to admit it, but the truth is that they're ideologically opposed to the freedoms the 1st amendment protects.

  • loveconstitution1789||

    You cannot control people if they can fight back with speech and print with guns to back it up.

    The rest of the BoR is great but the first two are IMHO the most important.

  • BillyG||

    We've had 230 years of language evolution since the constitution was written. I'm not surprised changes in meaning are having an effect on how people interpret it.

  • Brett Bellmore||

    In some cases, I suspect the language evolution might even have been intended to effect legal outcomes, rather than being natural.

  • M.L.||

    Correct. On the other post I mentioned the media's deliberate conflation of the various meanings of "the press."

  • James Pollock||

    A difference between speech and press is that freedom of speech is about protecting the speaker... ie, originator. Freedom of press is about protecting the publisher... ie, distributor.

  • loveconstitution1789||

    Great point.

  • Vandalia||

    I believe that we are in perhaps a better position to understand the distinction between the two terms today; if you substitute "press" for "ISP." "Freedom of speech" guarantees the right to "create" content, while "freedom of the press", guarantees the right to "distribute" content.

    Let us assume that Verizon is indicted for allowing "offensive" content to be transmitted over their infrastructure. In my opinion, it would be doubtful if Verizon would be protected under "freedom of speech" since their actions did not involve in any sense the creation of the content (i.e., "speech"); most likely, they did not even know the content existed. They would be protected, however, under the idea of "freedom of the press."

    To me the distinction seems relatively clear, which is a strong indication that my views are wrong.

  • James Pollock||

    Under your understanding, which right protects a person who wears a t-shirt with "offensive" text on it? (Examples, a high-school student wears a t-shirt with a marijuana leaf on it, or a random person wears a red hat that says "America was already great" to a polling place to vote.)

  • Joe_JP||

    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.

    Said canon in this context is applied by judges who recognize some development on the meanings of the terms. James Madison in the Federalist Papers also noted that words in the document will only obtain clarity by practice, which will involve some development of meaning as things work out in the real world.

    The canon can be taken too far anyway especially when talking about provisions enacted in large part to satisfy the fears of people that the Constitution was too broad. People thought "speech" and "press" were things that needed to be protected, but disagreed on what they meant. There is likely to be overlap between some of these terms and the differences will be debated. So, the flag salute case was seen as a freedom of expression matter, but it very well could have been decided (as the concurring justices noted) as a free exercise matter. Ditto trying to clarify what exactly an "impost" or "duty" is. There are some basic terms used that in practice result in redundancies.

  • Tall Paul||

    Isn't redundancy just good legal draftsmanship? Maybe English teachers don't like it, but generations of lawyers have always loved it. And for good reasons, too.

  • Stephen Lathrop||

    And under the late 1700s understanding, the freedom of the press-as-technology was not at all redundant of the freedom of speech.

    Indeed, because "the freedom of the press-as-technology" is Professor Volokh's 21st century invention, not something anyone ever thought about or said in the late 1700s. Which is not surprising, given that press technology was then almost 3 centuries old, not poorly understood, nor a cause in itself of social unease needing Constitutional attention. Especially not in America.

    All Volokh's citations in support of his awkward novelty are, in historical context, citations on behalf of something else—the freedom to publish—which was a different kettle of fish. That had been the continuing subject of a great deal of government interference, and much needed the various reassurances and fortifications Volokh cited.

    The problem for Volokh is that to cast his argument straightforwardly—in terms of freedom to publish—invites attention to the institutional press, its imperiled condition, and its prodigious role in the founding—which Volokh is trying to get out of sight. He wants to say the 1A doesn't offer protections specifically with the institutional press in mind.

    It is a preposterous assertion. To suggest the founders did not have the institutional press in mind is to say they turned their backs on their own principal method—the instrumentality that empowered accomplishment of the most important objectives of their lives.

  • Stephen Lathrop||

    Volokh could be offering legal positivism, but with a veneer of originalism to pretty it up. He invokes the founding era in discussion, but offers no citations to show actual founders saying that the press-as-industry model is not what they have in mind. Instead, Volokh goes back to lawyers:

    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.

    That relies on a logical fallacy—a false dichotomy. To be valid, a dichotomy needs an argument with two mutually exclusive poles, and the poles have to encompass every possibility.

    But Volokh's dichotomy is not complete. The possibility of a press-as-publishing pole exists. The possibility of no forced choice exists, where an original intention to protect press-as-industry co-exists with a freedom-to-publish pole applied outside industry. Those could be protected differently according to whatever characteristic needs fully encompass press freedom in either case. And the cases can be different, but simultaneously operative.

    Logically, no one is forced to choose between protecting press-as-industry or press-as-technology. Volokh's argument presents that as a forced choice from a valid dichotomy. It isn't.

  • MatthewSlyfield||

    "He invokes the founding era in discussion, but offers no citations to show actual founders saying that the press-as-industry model is not what they have in mind."

    IIRC, one of his earlier articles on the topic offered several sources suggesting that the concept of "the press" as an industry didn't even exist until significantly after the constitution was written and ratified.

  • Stephen Lathrop||

    Matthew, if Volokh said that, he was really, really, wrong. Super duper wrong. Just wrong, wrong, wrong—and mistaken. I doubt he said it.

    To take a leading example, Benjamin Franklin was born in 1706. Before he reached age 50, he was independently wealthy, largely as a result of the multiple newspapers in which he held proprietary interests with others—including one in South Carolina, by the way—and also from his own newspaper in Philadelphia, plus Poor Richard's Almanac, plus various printing enterprises—which themselves were very much part of the industrial press.

    The Boston Gazette, in which Franklin did not have an interest, was founded in 1719, and has been plausibly ranked by some historians as the most influential newspaper in the nation's history, for its influence on the Revolution more than 50 years after its founding.

    America's institutional publishing industry was, long before the revolution, a mix of newspapers and entrepreneurial printers functioning partly as publishers. It was a substantial industry, and highly influential. Without it, even Paine's Common Sense might be unknown to you today.

  • Absaroka||

    1)You might read the post in question. It was posted yesterday.

    2)What a non sequitur. Neither Mr. Slyfield or EV are debating whether newspapers existed or their profitably. The post in question offered contemporaneous sources disagreeing with your assertions, putting the lie to your 'but offers no citations...'.

    I don't really have a dog in this fight, but EV offers sources; you offer assertions. The former are more persuasive than the latter.

  • Absaroka||

    s/profitably/profitability/

  • Stephen Lathrop||

    Yeah, I understand Absaroka. It took me study, but I get it. Slyfield and EV say they know that "the press" as an industry was a big deal in pre-revolutionary America, but "the concept of the press" hadn't yet been invented. Never mind that the term "the press," written in the Constitution is what we are discussing. It's there, but it hadn't been invented.

    You will do what you want. I am just going to draw the inference that when Paine, or Sam Adams, or Franklin, or Jefferson, or Hamilton, or Madison said, "the press"—when they put it in the Constitution and promoted it in newspapers to the nation—they probably referred to that very institution to which they had been devoting so much of their time and effort, scribbling away to keep it supplied as the principal instrumentality of their politics.

    Ben Franklin was the Johnny Appleseed of institutional everything in America—the press especially (in multiple states), but also postal service, a hospital, an insurance company, a university, a military company, a learned society, a public library, other stuff. Do you really suppose that anyone in his presence could say, "the press," and just mean the damn device? Nowhere but in the printing office could that happen.

  • Brett Bellmore||

    "Yeah, I understand Absaroka. It took me study, but I get it. Slyfield and EV say they know that "the press" as an industry was a big deal in pre-revolutionary America, but "the concept of the press" hadn't yet been invented. Never mind that the term "the press," written in the Constitution is what we are discussing. It's there, but it hadn't been invented."

    No, they're saying phrase "the press" was understood to mean the printing press, and while the industry which as since taken to styling itself "the press" existed, it wasn't called that, so the phrase in the 1st amendment wasn't talking about that industry.

  • Alpheus W Drinkwater||

    I downloaded a pdf file of Franklin's autobiography and searched for the word "press." Interestingly, I couldn't find a single instance where Franklin was unambiguously using the word to refer to the industry or to newspapering in general. This one strikes me as ambiguous, talking about his anonymous articles as a kid to his brother's paper:

    "Encourag'd, however, by this, I wrote and convey'd in the same way to the press several more papers which were equally approv'd; and I kept my secret till my small fund of sense for such performances was pretty well exhausted and then I discovered it..."

  • MatthewSlyfield||

    EV pointed to a couple of different sources of linguistic research saying that "the press" did not show up anywhere as a generic reference to the publishing industry until several decades after the ratification of the US constitution.

    Can you cite, excluding the 1st amendment itself, even one source from before the constitution was ratified that used "the press" as a generic term for the publishing industry?

    If you can't, it's absurd to suggest that the publishing industry is what the founders meant by "the press" in the first amendment.

  • Alpheus W Drinkwater||

    Here is a portion of a letter from Madison to Edmund Randolph, June 11, 1782:

    "...In an evening of promiscuous conversation I suggested to him my opinion, that the insidiousness of the British Court, and the good faith of our ally, displayed in the late abortive attempt of the former to seduce the latter, might with advantage be made known, in some form or other, to the public at large. He said he would think of the matter, and next day sent me the letter in question, with a request that I would revise and translate it for the press, the latter of which was done. I mention this that you may duly appreciate the facts and sentiments contained in this publication."

  • Alpheus W Drinkwater||

    Here's another letter from Thomas Jefferson in Paris to David Humphries, March 18, 1789:

    "The change in this country since you left it is such as you can form no idea of. The frivolities of conversation have given way entirely to politics. Men, women & children talk nothing else: and all you know talk a great deal. The press groans with daily productions, which in point of boldness make an Englishman stare, who hitherto has thought himself the boldest of men..."

  • MatthewSlyfield||

    "America's institutional publishing industry was, long before the revolution, a mix of newspapers and entrepreneurial printers functioning partly as publishers. It was a substantial industry, and highly influential."

    Very true, but none of that says anything about whether anybody at the time thought of that industry as "the press".

    EV's argument is not about the existence of the publishing industry, but about the terminology that was used to refer to it in the aggregate.

  • MatthewSlyfield||

    I'll add that the validity of your argument depends not on the existence of a robust publishing industry, but on the terminology "the press" being in common use at the time to refer to that industry.

  • Perseus`||

    We wondering when you'd show up to insist that the institutional press is super special and deserves extra privileges.

  • Brett Bellmore||

    Which is to say everybody else... doesn't.

  • James Pollock||

    "unders did not have the institutional press in mind is to say they turned their backs on their own principal method"

    That's nonsense. The Founders wanted to protect leafleteers, who are about as far from "institutional press" as you can get.

  • Stephen Lathrop||

    Yeah, except for Tom Paine, I guess. He came to America with a letter of recommendation from Franklin. Got installed shortly thereafter as the editor of Pennsylvania Magazine, or, American Monthly Museum, which became a success under his editorship. While contemporaneously thinking about Common Sense, Paine found time to praise the institutional advantages of periodical publication.

    Then Paine took Common Sense to a printer and got it published—note, not printed, published. Paine entered into a deal involving printing, advertising, splitting the revenue, etc. In your view, that's just access to technology? Colonial printers weren't the progenitors of Sir Speedy, they were the progenitors of Random House.

    After all that, the wild success of Common Sense was abetted when newspapers picked up and published extensive excerpts, or in the case of at least one newspaper, the whole thing. Just access to technology, right? As far from "institutional press" as you can get?

    There is more to this story, showing how an institutional press contributed in other interesting ways to the astonishing scope of Paine's success. You ought to look it up before more blanket pronouncements about history. History often turns out more complicated than stories people think they know, but never got around to reading for themselves.

  • Brett Bellmore||

    Look, the question is not whether the institutional press existed at the time, obviously they did.

    The question is whether they were called "the Press". If they weren't, then "the Press" in the 1st amendment isn't a reference to them!

    Because the printing press certainly was called "the press", and the amendment makes perfect sense as a protection of everybody's right to speech, and everybody's right to publish.

    You seem utterly determined not to address the actual point Eugene is making.

  • Joe_JP||

    If it was the right "to publish," perhaps it would have been helpful if they said that.

    The language is notable -- "the press." The normal understanding today is that the First Amendment protects spoken (speech) and written (press) expression. A handwritten letter is not "speech" to my understanding, but it is not the product of a "printing press" either.

    OTOH, if "the press" was particularly concerned about an institution, the language would make more sense in that sense. And, the fact it is applied to television, e.g., which has different aspects [including visual] that they very well might think warrants somewhat different rules suggests original understanding only takes us so far. This is covered by some EV critics like Sonja West.

    Anyway, Stephen Lathrop cites history and use of language to make his case.Like some law professors who more expertly examined the question, he disagrees with Eugene Volokh.

  • MatthewSlyfield||

    "Anyway, Stephen Lathrop cites history and use of language to make his case."

    No, he makes assertions about history and the use of language, but he cites exactly zero evidence to back up those claims.

  • Stephen Lathrop||

    Slyfield, history sources come in at least two kinds: quotes from people, and researched narratives about what actually happened. There is no rule to make either kind superior to the other.

    When you argue the meaning of either kind of source, you need to establish relevance, context, reliability and appropriate placement of the historical narrators relied upon, stuff like that. Two especially important criteria are that the source be chronologically and physically proximate to the events under discussion. And chronological proximity generally means before and during, not afterward, because what happens afterward can't usually be a cause or explanation of what came before.

    Using those rules, check out Volokh's citations for his principal argument. Many of them are irrelevant for coming after the fact. Those that aren't are mostly vitiated for being distant and not participants, hence not qualified to comment first hand.

    My sources are the participants themselves. Ben Franklin was a prickly man who did not suffer fools gladly. I can't imagine trying to tell Franklin, who was preeminent among the founders, and in the institutional press, and as the source of leaked news that put the nation on the warpath when it was published in the Boston Gazette—that the 1A didn't apply to any of that. Historically, it's an incredible claim.

  • Stephen Lathrop||

    Slyfield, another way to look at it would be if I'm so wrong as a matter of history, you ought to be able to point to something that is actually mistaken among the many checkable facts I asserted, including my assertion about relevance. Give it a try. Look stuff up. On the question of relevance, go to a professional historian, and ask what he thinks of my relevance vs. Volokh's.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online