The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In this post, I'm finishing up 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. In earlier posts, I argued that around the time of the Framing and in the decades following, the freedom of the press was understood as protecting the right of all to use the printing press, and not just a right of a particular industry (the professional media). Here, I will discuss how this became the established, oft-repeated, unanimous view of courts (and nearly unanimous view of scholars) from the mid-1820s until 1931, the year in which the Supreme Court first started forcefully enforcing free speech protections against government action (including state and local government action).
Indeed, the first cases that I found that took the press-as-industry view (and they are outliers even so, and contradicted by recent U.S. Supreme Court precedent) didn't arise until after 1970. But for more on that, and on the Supreme Court cases starting with the 1930s, you should read the article.
[1.] The 1820s—Dexter v. Spear (1825) and Root v. King (1827)
As early as the 1820s, courts began to make explicit the approach I described in my earlier posts: printers and editors had precisely the same rights under the freedom of the press as other writers did. Thus, in Dexter v. Spear, leading Supreme Court Justice Joseph Story (deciding a lower court case while riding circuit) wrote that "[t]he liberty of speech and the liberty of the press do not authorize malicious and injurious defamation. There can be no right in printers, any more than in other persons, to do wrong." Similarly, Root v. King (an 1827 New York case) stated that, under the state constitution's "liberty of the press," newspaper editors have no "other rights than such as are common to all."
As the cases suggest, lawyers for newspapers had by the 1820s indeed begun to make arguments for special protection for the press-as-industry. But these arguments were consistently rejected.
[2.] The Understanding Around the Ratification of the Fourteenth Amendment
By the years surrounding the ratification of the Fourteenth Amendment, the freedom of the press-as-technology understanding was even more clearly established. (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.) To begin with, a long line of [state court] cases expressly held that the institutional press had no greater rights than anyone else. Thus, Aldrich v. Press Printing Co. (1864) held, "The press does not possess any immunities, not shared by every individual." Sheckell v. Jackson (1852) likewise upheld a jury instruction that stated,
[I]t has been urged upon you that conductors of the public press are entitled to peculiar indulgence, and have especial rights and privileges. The law recognizes no such peculiar rights, privileges, or claims to indulgence. They have no rights but such as are common to all. They have just the same rights that the rest of the community have, and no more.
Smart v. Blanchard (1860), Palmer v. City of Concord (1868), Atkins v. Johnson (1870), People v. Storey (1875), Johnson v. St. Louis Dispatch Co. (1877), Sweeney v. Baker (1878), Barnes v. Campbell (1879), and Delaware State Fire & Marine Ins. Co. v. Croasdale (1880) all echoed this position.
So did leading treatises and other reference works. Thomas Cooley's A Treatise on the Constitutional Limitations (1868) noted, in the section on "Liberty of Speech and of the Press," that "the authorities have generally held the publisher of a paper to the same rigid responsibility with any other person who makes injurious communications." Townshend's A Treatise on the Wrongs Called Slander and Libel (1868) likewise noted, in the section on "freedom of the press," that, "independently of certain statutory provisions[,] the law recognizes no distinction in principle between a publication by the proprietor of a newspaper, and a publication by any other individual. A newspaper proprietor … is liable for what he publishes in the same manner as any other individual." Morgan's Law of Literature (1875) noted, "[A] writer for a newspaper … stands in the same light precisely as other men; he is in no way privileged…. [T]he freedom of the press is, when rightly understood, commensurate and identical with the freedom of the individual, and nothing more."
The one partial exception to this pattern appeared in the "Liberty of the Press" discussion in Cooley's Treatise on the Law of Torts (1879), which suggested (without citation) that it "is not so clear" "whether the conductor of a public journal has any privilege above others in publishing." But even that treatise stated that "the freedom of the press implies … a right in all persons to publish what they may see fit, being responsible for the abuse of the right" and that "[t]he privilege of the press is not confined to those who publish newspapers and other serials, but extends to all who make use of it to place information before the public."
Some of the sources mentioned in this Section spoke of the press-as-industry as having no special rights generally, while others noted this specifically in the context of libel law. But it's not surprising that many of these assertions were made in libel cases. Freedom of the press arguments in the 1800s were most commonly made in libel cases; libel law was probably the main restriction on publication. And there were credible arguments for giving newspapers some special exemption from the severest aspects of libel law. As the "Freedom of the Press" section of Townshend's Slander and Libel treatise noted, with sympathy,
[A]s respects newspapers, it is argued that the exigencies of the business of a newspaper editor demand a larger amount of freedom. That circumstances do not permit editors the opportunity to verify the truth, prior to publication, of all they feel called upon to publish, and that they should not be responsible for the truth of what they publish.
But despite the presence and plausibility of these arguments, the cases kept saying (in Townshend's words): "A newspaper proprietor … is liable for what he publishes in the same manner as any other individual."
Some other cases spoke of the liberty of the press in cases where the speaker was not a member of the institutional press. In 1876, Life Ass'n of America v. Boogher held, just as Brandreth v. Lance had held, that it would violate "the freedom of the press or of speech"—"the right to speak, write, or print, … secured to every one" by the state constitution—for a court to enjoin publications and oral statements by a businessman that criticized another business. In 1846, Fisher v. Patterson, like many of the earlier cases from 1784 to 1840, mentioned the liberty of the press in a case that involved a defendant who was apparently a businessman and a politician, not a newspaperman, though the court concluded that the liberty did not substantively extend to libels.
Finally, Thomas Cooley, the leading American constitutional commentator of the second half of the nineteenth century, wrote in 1880 that "[b]ooks, pamphlets, circulars, &c. are … as much within [the freedom of the press] as the periodical issues." This too shows that the liberty of the press extended to material that was generally not written by full-time newspaper and magazine writers and—at least in the case of circulars—to material that was often not funded by members of the press-as-industry.
The rule thus had not changed from the early Republic to the Ratification era: "the press" in "[t]he freedom … of the press" was seen as referring to the press-as-technology, not to the press-as-industry.
[3.] The Understanding from 1881 to 1930
By 1881, the view that the press-as-industry has no special constitutional rights had become a firmly entrenched orthodoxy that would continue for the next fifty years and beyond. Consider, for instance, Coleman v. MacLennan (1908), the case that first recognized something like an "actual malice" test for speech about public officials, and that was later cited prominently for this proposition by New York Times Co. v. Sullivan:
Section 11 of the [Kansas] Bill of Rights sets off the inviolability of liberty of the press from the right of all persons freely to speak, write, or publish their sentiments on all subjects, and this fact has given rise to claims on the part of newspaper publishers of special privileges not enjoyed in common by all…. So far [such claims] have been rejected by the courts, and the present consensus of judicial opinion is that the press has the same rights as an individual, and no more.
Likewise, Negley v. Farrow (1883) held that "[t]he liberty of the press guaranteed by the Constitution is a right belonging to every one, whether proprietor of a newspaper or not." And these were just two of the many cases to acknowledge the press-as-technology view during the last decades of the nineteenth century and during the start of the twentieth.
Reference works of the era echoed this press-as-technology view, explaining that newspapers had the same freedoms of speech as private citizens. For instance, one 1917 work noted that "[i]t is well settled that a newspaper or other printed publication has, as such, no peculiar privilege in commenting on matters of public interest. It has no greater privilege with respect to such comment than has any private person." Similarly, a 1901 encyclopedia described the freedom of the press as "only a more extensive and improved use of the liberty of speech which prevailed before printing became general, and is the right belonging to every one, whether the conductor of a newspaper or not." And a 1905 reference work noted that newspapers are treated the same as other speakers when it comes to freedom of the press claims in libel cases, and that this view "has been affirmed by the courts of this country and England with great uniformity."
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The historical evidence points powerfully in one direction—throughout American history, the dominant understanding of the "freedom of the press" has followed the press-as-technology model. This was likely the original meaning of the First Amendment. It was almost certainly the understanding when the Fourteenth Amendment was ratified. It remained the largely unchallenged orthodoxy until about 1970.
Since 1970, a few lower courts have adopted the press-as-industry model, but this has been a decidedly minority view. The Supreme Court continues to provide equal treatment to speakers without regard to whether they are members of the press-as-industry. And though several Supreme Court opinions have noted that the question remains open, the bulk of the precedent points toward equal treatment for all speakers—or at least to equal treatment for all who use mass communications technology, whether or not they are members of the press-as-industry.
This evidence can prove valuable in interpreting the Free Press Clause, to the extent we focus on its "purpose," its "history," the long-term traditions of the American legal system, and precedent. It also suggests how we should interpret the Clause to the extent we focus on the "text." Appeals to the text that the Framers ratified are naturally affected by what that text meant when it was ratified. "[T]ext and meaning ultimately are inseparable; to understand what the Framers said, we inevitably seek to discover what they meant." Even Justices who do not broadly endorse originalism accept that original meaning evidence may be relevant to interpreting ambiguous legal phrases, even if it is not dispositive.
And evidence of original meaning is especially valuable for assessing arguments based on the supposed literal meaning of an ambiguous text. By way of analogy, consider the Seventh Amendment, which secures the right to civil jury trial in "Suits at common law." "Suits at common law" could refer to claims brought under Anglo-American law as opposed to civil law, claims brought under judge-made law as opposed to statutory law, or claims that have been historically decided by courts of law as opposed to equity or admiralty.
Our legal system resolves this type of ambiguity not by adopting the meaning most commonly used today—which is probably judge-made law as opposed to statutory law—but rather by considering how the ambiguous phrase was originally understood (claims of a sort historically decided by courts of law, back when law, equity, and admiralty courts were separate). The same reasoning applies to "the press." Arguments based on an ambiguous text should consider which of the several possible meanings the text was originally understood to have.
Of course, the Supreme Court has never limited itself to analyzing constitutional provisions based solely on historical sources. Justices remain free to decide for themselves what they think best serves the values they deem protected by constitutional provisions. The goal of this Article is simply to say that an argument for a press-as-industry interpretation of the Free Press Clause must rely on something other than original meaning, text, purpose, tradition, or precedent.