Libel

Equal First Amendment Rights Coming for Non-Media Speakers in Oregon?

The Oregon Supreme Court has agreed to reconsider its earlier precedents denying non-media speakers certain First Amendment libel law protections.

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I noted in December that the UCLA First Amendment Amicus Brief Clinic filed an amicus brief, in Lowell v. Wright in this case, on behalf of the Institute for Free Speech; the Electronic Frontier Foundation; Profs. William Funk (Lewis & Clark), Ofer Raban (U. of Oregon), and Kyu Ho Youm (U. of Oregon); and bloggers Prof. Glenn Harlan Reynolds, Howard Bashman, SCOTUSblog, and me.

This morning, the Oregon Supreme Court has announced that it will review the decision below, and therefore consider the issue. Here again is our brief supporting the petition for review; I expect that we will refile a version of this brief in the coming weeks, at the merits stage of the case:

Introduction

This case presents three important related questions:

(1) Does Oregon law unconstitutionally deny ordinary Oregonians the protections offered by Gertz v. Robert Welch, Inc., 418 U.S. 323, 349 (1974), which limits presumed damages in libel cases brought by private figures?

(2) Does Oregon law unconstitutionally discriminate in this respect against ordinary speakers, denying them the same First Amendment rights that the institutional media enjoy?

(3) Is it unsound for Oregon law to differ from the Ninth Circuit precedent that covers virtually identical lawsuits that happen to be within the federal courts' diversity jurisdiction?

The appellate court below, citing Wheeler v. Green, 286 Or 99 (1979), held that the First Amendment only requires proof of "actual malice" to recover presumed damages "in defamation actions brought by private parties against media defendants." Lowell v. Wright, 306 Or App 325, 347 (2020)(emphasis in original). But this analysis is not correct; to the extent Wheelerso holds, it fails to properly protect the First Amendment rights of nonmedia speakers.

This Court should grant review for three related reasons:

  1. This Court's holding in Wheeler created a First Amendment double standard that conflicts with subsequent United States Supreme Court decisions. The U.S. Supreme Court has refused to create any media-nonmedia distinction, both in libel cases and in First Amendment cases. And, as that Court has said, this equal treatment is especially sensible in the internet era. Media participation has become increasingly decentralized and commonplace, making it impossible to draw meaningful distinctions between media and nonmedia speakers. And even if such distinctions were possible, First Amendment values are better served by treating both types of speakers equally.
  2. Oregon's rule departs from the view of the federal circuit courts. All seven circuits to consider the question presented here have held that the First Amendment applies equally to media and nonmedia speakers in defamation actions; six of those circuits, including the Ninth Circuit, held this after Wheeler was decided. Oregon's conflict with the Ninth Circuit is especially troublesome because it makes the First Amendment standard for Oregon defamation cases turn on whether the case is in state or federal court.
  3. The Wheeler rule is also an aberration among state courts. Twenty state courts treat media and nonmedia speakers equally in defamation cases; only a few discriminate among them. Just last year, the Minnesota Supreme Court—one of the few that had endorsed a media-nonmedia distinction—joined the prevailing approach in treating all speakers equally. This Court should also take a fresh look at Wheeler, in light of the developments since 1979….

Argument

[I.] Wheeler Conflicts with Subsequent U.S. Supreme Court Decisions, Which Reject Lesser First Amendment Rights for Nonmedia Speakers

In defamation cases, the U.S. Supreme Court has indicated that media and nonmedia speakers are equally protected by the First Amendment. 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," in fact noting that it had "consistently rejected the proposition." 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), a leading libel law precedent: Writing for the four dissenters, Justice Brennan wrote that "the rights of the institutional media are no greater and no less than those enjoyed by other individuals engaged in the same activities," id. at 784, and Justice White, concurring in the judgment, "agree[d] with Justice Brennan that the First Amendment gives no more protection to the press in defamation suits than it does to others exercising their freedom of speech," id. at 773.

Indeed, the Court has expressly refused to discriminate against nonmedia speakers in many other First Amendment contexts as well. It has refused to provide the institutional media with "a testimonial privilege that other citizens do not enjoy," Branzburg v. Hayes, 408 U.S. 665, 690 (1972), or "a constitutional right of special access to information not available to the public generally." Pell v. Procunier, 417 U.S. 817, 834 (1974). And it has declined to grant the institutional media preferential First Amendment treatment under generally applicable antitrust, copyright, and labor laws. See Eugene Volokh, Freedom for the Press as an Industry or Technology? From the Framing to Today, 160 U. Pa. L. Rev. 459, 506–09 (2012).  The principle is that all speakers, whether the institutional media or ordinary people, are entitled to the same First Amendment protections when speaking to the public (whatever extra protection some speakers may enjoy under state law).

The constitutional protection provided in Gertz—in particular, that private-figure defamation plaintiffs must show defendants' actual malice ("knowledge of falsity or reckless disregard for the truth") to recover presumed damages—must therefore apply equally to media and nonmedia defendants. And this is consistent with Gertz itself: Nothing in the Court's discussion of presumed damages in Gertz, 418 U.S. at 349–50, turns on the speaker's status; the Court's references elsewhere in the opinion to "media" or "publishers" stemmed simply from the defendant in that case being a magazine publisher.

This equal treatment of all speakers, media and nonmedia, as to First Amendment defamation rules is also consistent with broader First Amendment principles. The Court has rightly viewed the First Amendment's "freedom … of the press" as protecting the press as a technology—the printing press and its technological heirs—and as a function (gathering and reporting information to the public using mass communications technology) rather than giving special rights to a particular industry. See generally Volokh, supra, at 463–65. The freedom of the press is a "fundamental personal right[]" that is enjoyed by nonprofessional leafletters as much as by the professional media: "The 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, 450, 452 (1938).

And this constitutional equal treatment makes sense, especially given developments since Wheeler. "With the advent of the Internet and the decline of print and broadcast media, … the line between the media and others who wish to comment on political and social issues becomes far more blurred." Citizens United, 558 U.S. at 352.

Ordinary consumers like Wright can now speak to the public the same way that reviewers writing for newspapers or magazines could, such as by reviews on Google and Yelp. They can also set up review sites that are essentially online magazines. No First Amendment line can be drawn between, say, a free alternative newspaper that publishes reviews, a consumer group's site, an individual's own complaint site, or a one-off review posted by the individual on a third-party site.

Indeed, the amici exemplify how blurry the media-nonmedia line would have to be:

  • The Institute for Free Speech and the Electronic Frontier Foundation are not usually thought of as "media," but they maintain web sites (http://ifs.org/ and http://www.eff.org) on which they publish their views to the world, just as online magazines do.
  • Howard Bashman is a lawyer, but his How Appealing blog is likely the nation's leading news source related to appellate litigation.
  • SCOTUSblog is published by lawyers, but it has become the nation's leading news source on the Supreme Court.
  • Reynolds publishes the InstaPundit blog, one of the leading political and public policy blogs in the country; he has also often written in newspapers such as USA Today and the New York Post, and has sometimes excerpted material from those articles on his blog.
  • Volokh publishes the Volokh Conspiracy blog, also a leading blog on law; for some years it was independently hosted but since 2014 has been hosted at mainstream media sites (the Washington Post and then Reason magazine).
  • Youm and Volokh publish their views to the public via Twitter, at @MarshallYoum and @VolokhC.
  • And Profs. Funk, Raban, Youm, Reynolds, and Volokh have regularly conveyed their analyses to lawyers, judges, and academics by publishing law review articles.

How can the law sensibly and fairly decide which of the amici are "the media" (at least for certain purposes) and which are not?

And even if it were possible, drawing a media-nonmedia distinction would be unwise. As the Supreme Court explained in Gertz, juries in defamation cases might be tempted to use presumed damages (as opposed to provable compensatory damages) "to punish unpopular opinions rather than to compensate individuals for injury sustained." Gertz, 418 U.S. at 349. And by giving juries an "uncontrolled discretion" to award damages to reputation, the presumed damages doctrine "unnecessarily exacerbates the danger of media self-censorship" and chills the exercise of First Amendment rights. Id. at 349, 350.

This logic applies even more clearly to nonmedia speakers. Media speakers are more likely than most nonmedia speakers to have considerable assets, enabling them to fight libel cases; they also often buy libel insurance, because that is needed for them to function (and is a tax-deductible business expense). They also have paid staff who are trained to investigate the facts, keep careful notes, and otherwise protect their institutions from liability. Nonmedia speakers generally lack these protections: They have fewer assets; they often lack libel insurance; and they have more limited investigatory resources. They are thus at least as subject to the chilling effect of presumed damages as are media speakers—and therefore need the same First Amendment protections as do the traditional media.

This case would not require this Court to reconsider the result in Harley-Davidson Motorsports, Inc. v. Markley, 279 Or 361 (1977). Though that decision also mentioned the media-nonmedia distinction, it did so with regard to speech said privately to a business rather than to the public, id. at 363, and on a matter where "there is no issue of public concern," id.In Dun & Bradstreet, the U.S. Supreme Court held that the First Amendment does not affect libel liability in cases where there is no issue of public concern, especially when the speech is conveyed just to a few listeners. 472 U.S. at 761–62 (lead opin.). The result in Harley-Davidson can thus be reconciled with the U.S. Supreme Court precedent in Dun & Bradstreet (even though Dun & Bradstreet rejected the media-nonmedia distinction). But Wheeler cannot be reconciled with the U.S. Supreme Court precedent in Gertz and Citizens United.

[II.] Wheeler Also Conflicts with Every Federal Appellate Court to Consider the Same Question, Including the Ninth Circuit

All seven federal appellate courts to consider the issue have held that the actual-malice rule applies equally to private-figure defendants in defamation cases. [Citations omitted. -EV] Six of those decisions postdate Wheeler.

Most importantly, the Ninth Circuit has held that "the First Amendment defamation rules in Sullivan and its progeny apply equally to the institutional press and individual speakers." Obsidian Fin. Grp, 740 F.3d at 1291. This means that federal and state courts in Oregon dealing with virtually identical cases now apply different rules:

  • Non-Oregon speakers (such as the defendant in Obsidian) who allegedly libel an Oregonian can get the protections offered by Gertz, because they can litigate their cases in federal court.
  • Oregon speakers who allegedly libel another Oregonian cannot get those protections, because their cases must be litigated in state court.

This Court should step in to decide whether this discrimination against Oregon speakers should remain in place.

[III.] Wheeler Also Conflicts with the Great Majority of State Courts

Published appellate decisions in twenty states, plus the District of Columbia, have secured to media and nonmedia speakers the same First Amendment rights in tort lawsuits brought based on speech communicated to the general public. [Citations omitted. -EV] This is consistent with the view that all who use "the press" in the sense of the technology of mass communication have equal First Amendment rights. Volokh, supra, at 463–65. On the other hand, only two states besides Oregon have published precedents denying full First Amendment protections to nonmedia speakers who communicate to the general public. Fleming v. Moore, 275 S.E.2d 632, 638 (Va. 1981); Denny v. Mertz, 318 N.W.2d 141, 152–53 (Wisc. 1982). One other state established a rule that certain subjects, when addressed by media defendants, are by definition matters of public concern, but this does not itself create a media/non-media distinction like that applied by the decision here. [Footnote discussing Senna v. Florimont, 958 A.2d 427 (N.J. 2008), omitted. -EV]

Indeed, other states that had previously rejected the prevailing view have since reversed course. Just last year, the Minnesota Supreme Court held that private-figure plaintiffs must prove actual malice to recover presumed damages against nonmedia defendants, Maethner v. Someplace Safe, Inc., 929 N.W.2d 868,  878-79 (Minn. 2019), and departed from its contrary decades-old precedent in Richie v. Paramount Pictures Corp., 544 N.W.2d 21 (Minn. 1996). Likewise, the Louisiana Supreme Court in Kennedy v. Sheriff of E. Baton Rouge, 935 So. 2d 669, 678 (La. 2006), held "that a private individual's right to free speech is no less valuable than that of a publisher, broadcaster or other member of the communications media," effectively overruling contrary Louisiana Court of Appeals precedent (Gilbeaux v. Times of Acadiana, Inc., 693 So. 2d 1183, 1188 (La. Ct. App. 1997)).

Conclusion

Wheeler is inconsistent with subsequent Supreme Court precedent, federal appellate precedent, and the prevailing view in many other state courts. Wheeler conflicts with fundamental First Amendment values: It chills the speech of nonmedia speakers in an electronic age, when that speech has become indistinguishable from that of media speakers, and just as significant to the public. And Wheeler's inconsistency with Ninth Circuit precedent leads to different First Amendment rules being applied in libel cases depending on whether they are filed in state or federal court. This Court should grant review to consider whether this aspect of Wheeler should be overruled.

NEXT: Court Rules for CNN in Rep. Devin Nunes' Libel Lawsuit

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  1. There may be hope for free speech after all.

  2. Looking at the problem from another angle: suppose there should be a distinction between professional and amateur (or however you want to draw the line). How do you decide who is in which camp?

    Do you issue media licenses? Are those may-issue or shall issue? What criteria can be used to deny a license – for example, you can’t get an FFL unless you have a brick-n-mortar location that is zoned for gun stores. Can the same kind of restrictions be applied to get a professional media license?

    You famously need 2000 hours (or whatever it is) of training to get licensed to braid hair. Can you require that to become a professional journalist?

    Can felons, people who have renounced citizenship, or people who owe child support get the license?

    How much can the license cost?

    Can the government stop issuing licenses during pandemics?

    etc, etc

  3. The benefit from the value of notoriety should always be deducted from any damage. For example, the plaintiff got more dates. Deduct the value of that. We are sick of this lawyer profession and its bullshit rules.

  4. Having the same rules for media and private individuals protects private individuals. If the media get special privileges , as they often demand, then private individuals have less freedom, because they lack those special privileges. As noted big media has the resources to defend itself, something most private individuals lack.

    1. Moreover, if the media gets special privileges, somebody must necessarily decide who is in the media, and who isn’t. A decision the government can game.

      But the real argument is just that the media have no special 1st amendment status, a consistent position the Supreme court has, so far as I know, always held, and for good reason. It was, I believe, well after the 1st amendment was adopted, (Indeed, because of the 1st amendment!) that the media started calling themselves “the press”.

      At the time the term referred to the instrument, not the industry.

    2. rsteinmetz, it is no skin off your nose that the NYT can get stories out of government that you cannot. It does not reduce your freedom that you can read what NYT reporters discover. Just the opposite. The ability of big media to defend itself is an important bulwark of your own freedom. The relative weakness of private individuals should never become the general condition of the press as a whole.

  5. While I largely agree with this, I do have a question: What exactly does freedom of the press mean if the press has equal rights as none press people? Then everything is part of free speech. I don’t necessarily think it is a bad thing but it doesn’t make much sense then that freedom of the press has a separate statement with presumably separate additional freedoms.

    1. “What exactly does freedom of the press mean if the press has equal rights as none press people?”

      It’s simple: Freedom of “the press” is the freedom of everybody to use the printing press. It has nothing to do with journalists as a distinct profession.

        1. Any idea when they first started calling themselves “the press”?

          1. IIRC this is covered in Prof V’s article. Right around the time the 1A was passed.

            1. Tried to search through the article, the closest thing I could find is that in 18th Century, “the press” as an industry referred to printers not news media. By that formulation in todays world, “the press” would be Kinkos more so than the New York Times.

              1. MatthewSlyfield, that would completely misunderstand 18th century printing, 18th century publishing, 18th century opinion, the American Revolution, and the First Amendment. But don’t worry, you are not much farther off than Professor Volokh himself. Perhaps you meant your comment as a critique of Professor Volokh?

                1. Stephen knows, because he used to publish a free newspaper in the middle of nowhere for a few years several decades ago.

        2. “I agree with Brett Bellmore”

          Goes without saying

      1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

        The First Amendment is a list of areas the government cannot intrude into. If printing were not listed and it merely said speech, then pretty soon some bright government official would say there is a difference between what is spoken and what is printed.

        1. rsteinmetz, as was widely recognized in the law of the 18th century, there is a difference between what is spoken and what is printed, and it is not a small difference.

      2. It has nothing to do with journalists as a distinct profession.

        Brett, I have been trying to imagine without smiling what the scene would have been like, with the members of the Constitutional Convention ranged around you, as you tried to sell that notion to Ben Franklin—an early assistant publisher of the Boston Gazette, which was to grow into the most consequential newspaper in the history of this nation—and who also became probably the world’s leading developer of the institutional press, and whose personal journalism (published in the Boston Gazette, 5 decades after he helped get it going) had done more than any other to kindle the American Revolution.

        Almost everyone in the room but you would have owed to the institutional press a great part of his personal reputation, not to mention gratitude for the publication of their own works which played such important roles in launching and structuring the nation. They knew that without the institutional press you would never have heard of Franklin, Hamilton, Madison, John Jay, Samuel Adams, John Adams, James Otis, Tom Paine, or probably the United States of America.

        It is laughable and a-historic to suppose the freedom of the press mentioned in the 1A was anything but protection for an institutional press, in all its functions, but especially including newspapers. Anyone who tells you otherwise needs to read a bit more about the founding era, with maybe more emphasis on academic history and biography, and less on law.

        1. “Brett, I have been trying to imagine without smiling what the scene would have been like, with the members of the Constitutional Convention ranged around you, as you tried to sell that notion to Ben Franklin…”

          They probably would have been saying, “Brett, Lathrop sent you to the wrong place. You want the First Congress, in 1789. And Mr. Franklin won’t be there.”

        2. “It is laughable and a-historic to suppose the freedom of the press mentioned in the 1A was anything but protection for an institutional press, in all its functions, but especially including newspapers. Anyone who tells you otherwise needs to read a bit more about the founding era, with maybe more emphasis on academic history and biography, and less on law.”

          Well, Prof. Volokh apparently read something called “The History of England” by David Hume. David Hume ties the beginning of “The Liberty of the Press” to the expiration of the Licensing Acts, which applied to all presses, and not just the intuitional press. David Hume also wrote, “On the Liberty of the Press.”

          We know the Hume and somewhat of an influence on James Madison, who wrote the bill for rights. Indeed, Prof. Volokh cites Madison in 1800 as referring to “… freedom, in the use of the press…” while arguing against the Alien and Sedition acts.

          1. Was that the famous American revolutionist David Hume?

            1. LOL Mr. “Ben Franklin wrote the first amendment” Lathrop has no idea who David Hume was? Color me shocked.

              1. TwelveInch, dial back the snark, it will give you a better look.

                Hume and Franklin were acquainted. Franklin had dined as a guest in Hume’s home in Scotland. Influence went both ways. Hume was an admirer of Franklin. Hume—already noted for views on press freedom—would have been aware that the guest at his table was already the world’s leading exponent of the institutional press. Hume described the English institutional press as indispensable for liberty.

                Franklin would have become aware—if he was not aware already— that Hume had been an advocate on behalf of the activity which Franklin practiced as a career contemporaneously with Hume’s early essay on the subject.

                Why would you, or anyone, assume Hume was a proponent of some novel theory that liberty of the press merely meant access to equipment. To summarize what Hume did mean it would be better to say that liberty of the press meant access to an industry, equipped and standing ready to serve the needs of newspapers, book and pamphlet publishers, and individuals who made contributions—with a high proportion of those individual contributions published in newspapers.

                Volokh’s peculiar notion of the press as technology ignores the daunting need for infrastructure, capital, trained talent, and continuous application of effort to make that industry work—points which Volokh goes out of his way to minimize for no historically recognizable reason.

                Volokh depicts printers as members of a subservient class of mere tradesmen, to whom aristocratic founders would be disinclined to extend special protection. For pity’s sake, the Sons of Liberty were organized out of the office of the Boston Gazette. It was their meeting place. It was practically Samuel Adams’ home. It was the newspaper in which Benjamin Franklin published a story which press historians have described as the most consequential piece of investigative journalism in the nation’s history.

                Volokh makes it a point to minimize Franklin, as a rare exception among founders for being a newspaper publisher. Well, newspaper publishers are indeed destined to be in the minority everywhere. Franklin took action to increase their number, by underwriting start-ups by others, in at least Pennsylvania, the Carolinas, and even the Caribbean.

                What is Volokh trying to do? He fails to mention that other notable figures of the founding era were also institutional press people, including Samuel Adams, Jame Otis, and Tom Paine. Paine, by the way, was another Franklin project. That omits all the other figures less famous, but no less instrumental for publishing in their newspapers documents such as Common Sense, and The Federalist Papers.

                Volokh’s essay on the subject is hard to explain—and re-reading it only makes it harder. Volokh spends effort knocking down a thesis which no historically-minded person insists upon: that to say press freedom protects an institutional press means it denies that freedom to others. That’s more a present-day movement conservative talking point than anything you can find in the historical record.

                The approving audience for Volokh’s essay seems to feature plenty of folks who don’t like what they refer to as mainstream media, and who attack those media however they can. They are the last people to read Volokh’s essay critically. They are instead interested to reduce press freedom for everyone, by hampering press voices they disapprove, by whatever means they can manage, including attacks on free press rights for institutional media. That is unwise, and Volokh should not be catering to it. Neither should you.

                1. “Why would you, or anyone, assume Hume was a proponent of some novel theory that liberty of the press merely meant access to equipment.”

                  Sigh. No one said that, Lathrop. It is the right to access the technology and to publish one’s views.

                  But if you have any evidence that 16th century enjoyed a journalistic privilege for sources or anything similar, you’re certainly keeping it hidden.

                  1. If nowhere else, I think Hollywood must be able to supply a musical composer with capacity to furnish a worthy accompaniment on the theme: “The March of the Goalposts.” I don’t think AI on the VC would have to advance far to make it an automatic feature.

        3. What’s truly laughable is your view of the early “institutional press”.

          In reality, in the absence of modern media corporations, “institutional press” merely means “a guy who bought a printing press”, which isn’t a bad description of Franklin himself.

    2. “Freedom of the press” is metonymy: it means freedom to publish.

  6. Professor Volokh, your take on the Joe Keyboard/Institutional Media distinction makes sense on the Joe Keyboard side, but sleights the institutional media side. And it invites courts to sleight the institutional media too. Which all too often tends to delight Joe Keyboard. None of that is good.

    The problem is that 1A protection can be tailored to guard completely the needs of lone-wolf opinion publishers, without adequately protecting the different needs of institutional news-gathering publishers.

    To put it clearly and simply, institutional media news gathering depends on legal deference for practices which are largely impossible for lone wolf publishers even to attempt, let alone accomplish. But 1A protection of press freedom cannot be complete unless it extends to institutional media the protections required to accomplish what others cannot—not because those others are incapable, but for other reasons. An unfortunate twist is that the same protections cannot be extended to everyone alike, lest due process for litigants be excessively burdened. There is an issue of rights in conflict which complicates the analysis, making it less straightforward.

    The problem centers around the use of confidential sources for news gathering. Most non-institutional publishers don’t gather any news, so have no legitimate concern. But even publication of private opinion can run afoul of libel laws if the author strays into factual assertions. Such non-institutional publishers would if they could invoke protection for sources to avoid discovery to which plaintiffs are entitled. Courts cannot afford to extend that protection so indiscriminately, lest plaintiffs generally be deprived of a right to due process.

    The situation of institutional news gatherers is different. Confidential government sources with stories to tell look for institutional media, and shun freelancers. Even the nation’s most respected investigative reporters—veterans with astonishing contacts lists, and Pulitzer Prize investigations to their credit—have discovered that confidential sources lose interest so long as the reporter remains separated from institutional media. Several good reasons account for that; it isn’t necessary to detail them here. As a practical matter, confidential government sources, or inside corporate sources, are typically unavailable to any but institutionally-connected reporters. The public life of the nation would be excessively burdened if that access dried up because courts insisted institutional reporters claiming confidentiality for sources be treated alike with everyone else.

    The rule should be—at least with regard to source confidentiality— that everyone is entitled alike to the 1A publishing protection their publishing practices require and justify. Those who want to comment from their home keyboards, and also want to complain about courts protecting confidentiality claims from institutional media, should be told to join institutional media—or to organize their own institutional media—and take advantage.

    It is publishing activities themselves which require evenhanded protection, not the persons involved in this manner or that manner. It cannot be a matter of extending identical protections to everyone self-identified as a publisher or journalist. To do that would require withdrawing from institutional publishers press freedoms upon which the public life of the nation vitally depends. An argument on behalf of press freedom which has the practical effect of notably diminishing press freedom must be rejected.

    1. 1. Are you suggesting that journalists are currently unable to gather the news without protections for confidential sources?

      2. It would seem that laws against trespass, breaking and entering, wiretapping, and maybe torture are much bigger impediments to newsgathering than lack of protection for confidential sources. Why should the rule single out confidential sources?

      1. He’s trying to create a 1A constitutional requirement for a “journalistic privilege” to protect confidential source that the federal courts have explicitly rejected.

        1. Actually, Matthew, that is not what I am trying to do. I am actually trying to illustrate that there are instances where constitutional rights are in conflict, with press freedom and due process impossible to vindicate simultaneously. What I have always advocated before, and might as well repeat now, is don’t try to solve that problem. No solution can be had, except at the expense of one right or the other.

          So in a fix like that, what to do? Judges should first recognize an unsolvable problem, and do what they can to damage either right only minimally. That is mostly what judges have been doing, for a long time.

          Reporter says I won’t reveal my source. Judge says go to jail. But, crucially, judge does not say, stay in jail until you rot, or give in. Doing that would take a huge bite out of press freedom. A wise judge lets the reporter out, source still undisclosed, after the forms of the law have been satisfied.

          Likewise, creating an explicit privilege for confidentiality, and granting it only to institutional media is a problem. It makes non-institutional publishers mad. They probably shouldn’t be mad, but they are, because they absolutely could not be granted the same privilege. Doing that would take a huge bite out of due process.

          My remarks come up, because there are threads like this one. Fans of the internet get encouraged to suppose they are hurt somehow, unless institutional media get stripped of any vestige of court deference which might in any way distinguish them from solo publishers on the internet. That is short sighted, because the solo guys absolutely cannot do what institutional media can do, because sources cooperate better with institutional media. Especially, confidential sources do that. And that means that if solo internet guys object to occasional court deference for institutional media, and get their way, press freedom will be less. It will be less in a way which hurts everyone.

          1. “I am actually trying to illustrate that there are instances where constitutional rights are in conflict, with press freedom and due process impossible to vindicate simultaneously.”

            There is no conflict because there is no constitutional right for journalists to protect the confidentiality of sources against court proceedings.

            1. Matthew, luckily, wise judges everywhere see it differently than you do. Unluckily, a few hammerheads on the bench sometimes try as you suggest. So far, they have mostly been overturned on appeal.

              What you suggest would enormously burden press freedom to gather news, and especially suppress access to more-important stories involving government corruption or disastrous policy decisions. Press freedom remains a thing under the constitution.

              1. Matthew, luckily, wise judges everywhere see it differently than you do. Unluckily, a few hammerheads on the bench sometimes try as you suggest. So far, they have mostly been overturned on appeal.

                Can you cite to some of the cases you have in mind?

              2. Matthew, luckily, wise judges everywhere see it differently than you do. Unluckily, a few hammerheads on the bench sometimes try as you suggest. So far, they have mostly been overturned on appeal.

                Area Man Passionate Defender Of What He Imagines Constitution To Be

                I’m sure there are judges, like any other people, with idiosyncratic views. But we have a hierarchical judicial system, and the Supreme Court sits at the top of that hierarchy. What it says about the meaning of the Constitution goes. And it has said that no such right exists. (To be sure, such a right might exist under state constitutions.)

                1. Nieporent, if the Supreme Court did as you say, and made it the effectual rule in fact, that would put press freedom in tatters throughout this nation. I take continued survival of press freedom as evidence that your doctrinaire interpretation ought to be discounted—discounted by the reality of what happens, in court case after court case. Historical practice teaches that it is generally a mistake too much to credit the text of a law until you know what the outcomes have been. That’s a notion lawyers are also acquainted with, right?

                  What happens really? When journalists refuse to name confidential sources, they go to jail (unless formally privileged, as you mention), and then they get out of jail, without naming the sources. Amazingly, their publishers go unsaddled with ruinous financial penalties, which courts could impose, but almost never attempt. Lesser amounts, maybe.

                  Perhaps that is mere evidence that lower courts ignore the Supreme Court with impunity, and to the Supreme Court’s frustration. Does that seem likely to you? Maybe it makes more sense to suppose the Supreme Court sees the question as I have described it, and restrains its response as tacitly as the lower courts do.

                  This question—with your insistence echoed—is one I have chewed over with lawyer friends for decades. Even from my oldest friend in the world—a law professor now who started first grade together with me in 1952—I couldn’t get an inch of concession. Not one lawyer has ever budged. I guess it must be sort of a professional obligation to just deny the reality that the law, for once, has achieved a virtuous compromise it can’t afford to talk about.

                  Or, who knows? Maybe the right case will come up, and SCOTUS will nuke the NYT from orbit for failing to disclose a source. Do you think that is likely?

                  1. Nieporent, if the Supreme Court did as you say, and made it the effectual rule in fact, that would put press freedom in tatters throughout this nation. I take continued survival of press freedom as evidence that your doctrinaire interpretation ought to be discounted—discounted by the reality of what happens, in court case after court case.

                    The Supreme Court did as DMN says 50 years ago, in Branzburg v. Hayes, 408 U.S. 665 (1972). I would renew my invitation to provide a case—any case—where a court has found a first amendment privilege not to disclose confidential sources since then. Failing that, you appear to have refuted yourself.

                    1. And since he mentions the NYT, he may remember that Judith Miller spent three months in prison for refusing to reveal her sources. The D.C. Circuit upheld the contempt on the basis of Branzburg, and the Supreme Court declined to hear the appeal.

          2. Stephen, if you give “the institutional press” special privileges that private individuals performing the same role lack, it has a number of pernicious effects.

            1. It entrenches existing institutional press against upstarts by creating a barrier to entry.

            2. It, paradoxically, renders them more vulnerable, because privileges to a select group require identifying who is a member of that group, which implies identifying who is NOT a member of the group. Once accorded special privileges, they can now be threatened with their revocation.

            3. Privileges are unpopular with those not getting them, by getting privileges, the institutional press actually get less support from the general public.

            4. These privileges are often going to be abused, rendering the press even less sympathetic. “Don’t have to identify confidential sources” = “Don’t have to prove they really exist and are deserving of trust.”

            1. 1. Nonsense.

              2. No. As I have explained, to work the deference must be tacit and only minimally helpful, so none of that rigamarole can even be tolerated, let alone be necessary.

              3. Yes.

              4. Nope, but. Reliance on unidentified sources imposes a practical burden to be especially careful, and get stories right. Admittedly, upstarts who are ideologues, acting without any view to long-term publishing success, may try to game that, and publish unsourced fake news.

              1. “Admittedly, upstarts who are ideologues, acting without any view to long-term publishing success, may try to game that, and publish unsourced fake news.”

                You may recall the NYT recently publishing an anonymously sourced false story about the death of the Capitol police officer. Are you characterizing the Times reporter as an upstart ideologue?

                1. Stephen said “unsourced,” not “anonymously sourced.” And of course the basis for your claim that this NYT story was false is based on… anonymous sources.

                  1. “Stephen said “unsourced,” not “anonymously sourced.””

                    The words I’m seeing in the post right above mine are “unidentified sources”? unidentified!=anonymous???

                    “And of course the basis for your claim that this NYT story was false is based on… anonymous sources.”

                    I’m confused. The Times story says that Officer Sicknick was beaten in the head with a fire extinguisher during the riot and “With a bloody gash on his head, Mr. Sicknick was rushed to the hospital and placed on life support.”.

                    But a Propublica article says “While some news reports had said an unnamed officer was in critical condition after being bludgeoned with a fire extinguisher, family members did not have details of his injuries. They say Sicknick had texted them Wednesday night to say that while he had been pepper-sprayed, he was in good spirits … “He texted me last night and said, ‘I got pepper-sprayed twice,’ and he was in good shape,” said Ken Sicknick, his brother, as the family drove toward Washington. “Apparently he collapsed in the Capitol and they resuscitated him using CPR.”

                    But the day after that text exchange, the family got word that Brian Sicknick had a blood clot and had had a stroke; a ventilator was keeping him alive. ”

                    Can you elaborate on why you think that is an anonymous claim? It could turn out to be false, or erroneous, a typo, or whatever, but it doesn’t seem to be anonymous, as I understand the word.

                    1. The Propublica article doesn’t say anything at all about what happened — only what family members had heard. The basis for the claim that the NYT is false is a CNN story with anonymous sources claiming that law enforcement sources were saying there was no sign of blunt force trauma having killed him.

                    2. “The Propublica article doesn’t say anything at all about what happened — only what family members had heard.”

                      The Propublica article says that Sicknick texted his family that he was OK at a time when the Times article places Sicknick in the hospital on life support. Those can’t both be true.

                      There may be explanations – Sicknick’s brother might be mistaken, Propublica may be misquoting him, the text might have been wandering the internet for hours, etc, etc. It’s not an unfalsifiable anonymous report.

                      (FWIW Greenwald’s article also discusses the ‘rioters brought zipties to take hostages’ narrative, which also seems incorrect)

                    3. As an aside, it seems incredible that, weeks after the riot, the Capitol Police haven’t released definitive info. If the fire extinguisher version is true, something like ‘At about 3:47PM, Officers S, X, Y, and Z were battling rioters in the west corridor when a man in a blue shirt swung a fire extinguisher, hitting Officer S. Officers A, B, and C gave first aid and …’ or if not, then ‘After the riot, Officer S texted his family at 5:37PM, then went to the locker room to change, where he collapsed and …’.

              2. I would say, given how many anonymous accounts have recently been exposed as lies, that the institutional press are not all that scrupulous. Trump smearing the military at a meeting where everybody present goes on the record denying he said it. A police officer supposedly beaten to death with a fire extinguisher according to anonymous sources, but absolutely no evidence ever appears that it happened, and now we have a retraction of sorts, because the guy apparently had no signs of trauma, and didn’t mention it to anybody.

                You know what would make me place some trust in “anonymous sources”? If the institutional press had a practice of outing them when they proved to be wrong.

                But, of course, they don’t. We don’t know who lied to the press, so we don’t know that they aren’t continuing to lie to the press, and the press are running the lies because they like them.

          3. “So in a fix like that, what to do? Judges should first recognize an unsolvable problem,”

            What judges do in a fix like that is interpret provisions in harmony. So constitutional rights don’t conflict unless there is an unambiguous conflict in the text, and there’s no way there’s an unambiguous conflict between due process and free press.

            1. . . . and there’s no way there’s an unambiguous conflict between due process and free press.

              It’s possible to make that seem sensible, but to do it you have to assume that news gathering is not part of protected press freedom. It would not surprise me to discover that you do assume that. It seems to be a pretty popular assumption among movement conservatives.

      2. TwelveInch, question 1 invites a truism in reply. Yeah, without ability to protect confidential sources, you can’t get stories from confidential sources.

        Question 2 seems on the wrong premise. I would insist on a good confidential source ahead of any of those other methods, or all of them put together, even if they did not implicate me in crimes. The confidential source is a guy who can explain what is going on, and tell who else you can talk to. That other stuff provides clues at best, and leaves you trying to build a roadmap through a murky landscape. And of course, crime.

        1. The question is is there a difference between a class called press and the average citizen. In other words, anything the institutional press can do, a citizen can walk up and do, too. This is not a restriction but an expansion of the rights.

          And I wouldn’t be so quick to abandon the idea of freedom to use mechanical presses, the mass production for the purpose of mass distribution of speech. They were controlled as a form of censorship. It would be a net losing proposition to give that up just to gain philosophical purchase for the right to protect confidential sources.

    2. Professor Volokh, your take on the Joe Keyboard/Institutional Media distinction makes sense on the Joe Keyboard side, but sleights the institutional media side. And it invites courts to sleight the institutional media too. Which all too often tends to delight Joe Keyboard. None of that is good.

      You meant “slight,” not “sleight,” and that was the least inaccurate part of your comment.

    3. Your argument completely reframes ‘the press’ as technology in favor of ‘the press’ as organized media despite the evidence provided that this is a false narrative. Confidentiality is just a red herring.

      We the people are entitled to freedom of thought through speech and freedom to publish our thoughts and distribute them (i.e., freedom of press). Limiting any part of those freedoms to some poorly defined ‘institutional media’ requiring recognition by the government is abhorrent to the natural rights of individuals.

      This is the same type of argumentation that is attempted to redefine the 2A as a collective right and not an individual right. It is just as ineffective when subjected to honest discourse.

      1. Chuck P., seems to me you are out to refute an argument other than mine. Go back and take another look at what I wrote. I’m not in favor of denying anyone any rights, providing they do things which make use of the rights.

        I am saying that the institutional press does news gathering things which solo-practitioner internet opinion guys rarely attempt, and can not do if they try. But I’m not disparaging those guys. Take away the institutional press credential, and the best investigative journalist in the world will also strike out trying to get stories from savvy, highly-placed confidential sources. Both would-be reporters will fail the same, for the same reason. Both will lack the institutional-connection clout the sources are looking for. That’s why courts need to protect institutional press news gathering as part and parcel of protecting the entire scope of press freedom.

        1. Your argument is “confidential sources will only talk to the institutional press if the law gives special privileges to the institutional press, so we should give those privileges *only* to the institutional press”.

          But the more democratic approach would be that the law should give those privileges to everyone.

          Also, you are completely skipping over how, if your view is adopted, one ought to decide whether Fred is or is not a member of the ‘institutional press’.

          1. Well, duh: By whether or not he reliably advances the narrative desired by those making the determination. How else would you do it?

          2. Your argument is “confidential sources will only talk to the institutional press if the law gives special privileges to the institutional press, so we should give those privileges *only* to the institutional press”.

            No. My argument is that savvy, high-level sources will only talk in confidence to the institutional press, period. With that followed by the unsurprising insight that if courts don’t defer to that reality, and extirpate the institutional press in the process, then that’s that for press freedom.

            The more foolishly democratic approach would be that the law gives those privileges to everyone. But to do that takes a giant bite out of due process, and unduly burdens plaintiffs in litigation.

            The wiser democratic approach would be to encourage democratically motivated complainers to avail themselves of the privilege to go to jail and later get out that wise courts afford to institutional press reporters. To do that, democracy’s paladins must either join an institutional press organization, or simply start their own. More organizations capable to support investigative journalism are desperately needed. You could get rich doing that.

            As for Fred, leave his status to the judge to decide. No doubt the best way to make a judge trustworthy is to trust him. My suggestion to such a judge would be to look to whether Fred has published a consequential story in reliance on a confidential source. Don’t worry, while Fred remains a solo practitioner it will hardly ever happen. Even if Fred has previously made a mark in investigative journalism at an institutional news organization, he won’t be able to do it solo.

            This has to be about wise judging, not about perfect legal doctrines, openly arrived at. Trying to do it that way inevitably fails, and unduly burdens either press freedom or due process. They are in conflict. That is the problem. It is a conflict that can’t be made to go away. It has to be worked around. Work around it. Don’t make the mistake of trying to solve it. No solution is possible which will not too much burden one right or the other, and both rights are too important to give up.

            1. “My argument is that savvy, high-level sources will only talk in confidence to the institutional press, period.”

              That’s not particularly persuasive. For example, if I had insider knowledge of some computer security scandal, I’d much rather talk to Brian Krebs or Bruce Schneier than some clueless cub reporter at the Des Moines gazette or the NYT.

              “As for Fred, leave his status to the judge to decide. No doubt the best way to make a judge trustworthy is to trust him. My suggestion to such a judge…”

              In general, I’m a fan of telling people what the law does or does not allow up front, so they can obey the law. Having crimes defined as ‘whatever Stephen suggests to the judge after the fact’ is unappealing.

              1. Absaroka, I enunciated a clear standard for Fred. You ended your quote just before you got to it. It did not differ from the standard for anyone else. That a judge will evaluate how well Fred conforms in court is not unfair to Fred; it is routine for everyone. That Fred’s case might not qualify him for a judge’s deference is also entirely on Fred. He was free to do so, just as he remains free to do what the judge tells him, and avoid trouble that way.

                As for Brian Krebs, he is an institutional journalist. By citing him, you make my point. Bruce Schneier is a public facing academic. Neither strikes me as rightly situated institutionally for you to repose confidence in. No reflection on them, just on the institutional setup. It’s not right for you.

                Of course, to make the case you were attempting, you would have to convince me you would have given your story to Fred. Without knowing more, I would have to ask whether you considered yourself at risk, either professionally, for prosecution, or for fear of your life. If you did, it is hard to imagine you would consider Fred for even a second. I’ll bet that contrary to what you said, you are pretty persuaded of that.

                Actually, I suspect if you had a genuinely consequential story, and considered yourself notably at risk if you told it, you might have broadened your search for an outlet. You would probably be looking for a journalist who worked for a press institution which even a court might find imposing, for institutional resources sufficient to back the journalist without limit, and for a journalist who would suffer professionally if he broke promised confidentiality. If they have a lot to lose, confidential sources who think that way know how to protect themselves, and they don’t go to Fred, not ever. They probably don’t go to Krebs or Schneier either. See why?

                1. “Absaroka, I enunciated a clear standard for Fred. You ended your quote just before you got to it. It did not differ from the standard for anyone else. That a judge will evaluate how well Fred conforms in court is not unfair to Fred; it is routine for everyone”

                  Well, fair enough. If the law treats everyone alike, without regard for whether they might or might not be ‘institutional press’, then everything’s good.

                  I thought you were arguing for some kind of special ‘institutional press’ carve out – silly me!

                  1. Somewhere upthread I said specifically that I oppose a special carve out. Just as I also oppose legal attempts to solve definitively the conflict of rights between press freedom and due process.

                    The legal posture on that must be left undefined, or one right or the other will be too heavily burdened as a result. I am aware that the practical consequence of leaving it undefined will somewhat systematically favor leniency for members of the institutional press, while leaving solo practitioners to be judged more sternly. For reasons I discussed above—having to do with why confidential informants shun solo practitioners—I think that distribution is the best outcome the law, the constitution, and the nation can bear. Simply put, a dearth of opportunities for solo practitioners to avail themselves of publicly important confidential sources will also protect them from occasions where they might otherwise require leniency in court.

                    1. ” I am aware that the practical consequence of leaving it undefined will somewhat systematically favor leniency for members of the institutional press, while leaving solo practitioners to be judged more sternly.”

                      In other words, a carve out.

                    2. Absaroka, I try to be forthright. I rely on interlocutors to return the favor. Carve outs are purposeful. Suggesting I am looking for one when that has nothing to do with my purpose, and when I am on record as opposing that very carve out, is not forthright.

                      By the way, I also mentioned why it is reasonable to suppose that difference in outcomes will be of little practical consequence, because it won’t likely come up. Maybe I shouldn’t be so forthright.

            2. Lathrop, it was an interesting thread. I understand the gist of your argument, I think. You wrote, I’m not in favor of denying anyone any rights, providing they do things which make use of the rights.. To me, that is the point where you transform individual civil liberty (1A) into a government approved right. And that is the point where I think you go off-track.

              I don’t think your position is ultimately compatible with what a majority of Framers had in mind when they drafted 1A. My understanding of the essential nature of our 1A rights is much more along the lines of: We the people are entitled to freedom of thought through speech and freedom to publish our thoughts and distribute them (i.e., freedom of press). [Chuck P above]. To me, the Framers intended to preserve the autonomy of all individuals (not a special class, like ‘institutional press’) in a civil society to freely think and express their thoughts.

              1. Commenter_XY, this is frustrating. You seem to be using a premise that if the founders wanted protection for an institutional press, that would somehow create a subtraction of rights from everyone else. A tacit premise you rely on is that somehow the institutional press and natural persons belonged to the same category, and struggled in competition within it.

                You seem not to notice what the founders surely did notice, because they tended to be institutionalists: that people are not in the same class as institutions. For the founders—Ben Franklin especially, but a great many others too—one great way to increase rights for people was to empower beneficent institutions. And they surely saw an institutional press as beneficent. No way did they think that press freedom was anything but an enhancement of rights for every person. That had been their experience. Their institutional press had been the principal social tool they used to make the revolution, and to structure the nation.

                They thought those activities and accomplishments empowered personal rights for everyone, every step of the way. They wanted to assure that blessing to their posterity, so they guaranteed it as a right. What that right meant in practice was that natural persons could create press institutions at will, and operate them free from government interference.

                The notion that giving that freedom-enhancing tool to the people for unobstructed use would somehow diminish the freedom of some of them seems strikingly misplaced in context of founding-era history. It is, however, more in line with movement conservative anxieties about elites, class divisions, and private advantages for some not enjoyed by others.

                I get that part. But I urge you to stay clear on where it comes from. No part of it is at home in founding-era history. That more-anxious thinking comes instead from a darker more divided present.

                The founders were institutionalists, not nearly so anxious about elites, and self-consciously doing their best to become committed republicans. The notion of a virtuous institutional press fit all that to perfection. They loved that idea. It matched their experience, and aligned with their ambitions. They intended to build a great nation around liberty-enhancing institutions they could create at their pleasure.

                1. It was a useful thread Lathrop. We differ in terms of the orientation (individual, collective) of enumerated 1A rights (and probably others as well). Funny how we (VC) are discussing the same things 230 years after the fact; somewhere, the Framers are probably secretly pleased the conversation is still happening.

                  Keep putting your ideas out there in the crucible of debate.

        2. Out of curiosity, where would you put Project Veraitas or Breitbart in this? Institutional press, or not?

          1. I dunno, dustbin of history, institutional press or not.

            1. Indeed, they are harmful to your preferred narrative, aren’t they?

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