Free Speech Unmuted: Freedom of the Press, with Floyd Abrams

Does the Free Press Clause provide extra rights to the institutional press, or instead protect all speakers' equal rights to use the printing press and its technological heirs? My cohost Jane Bambauer and I discuss this with legendary First Amendment lawyer Floyd Abrams. You can also watch our past episodes:

• Free Speech, Private Power, and Private Employees
• Court Upholds TikTok Divestiture Law
• Free Speech in European (and Other) Democracies, with Prof. Jacob Mchangama
• Protests, Public Pressure Campaigns, Tort Law, and the First Amendment
• Misinformation: Past, Present, and Future
• I Know It When I See It: Free Speech and Obscenity Laws
• Speech and Violence
• Emergency Podcast: The Supreme Court's Social Media Cases
• Internet Policy and Free Speech: A Conversation with Rep. Ro Khanna
• Free Speech, TikTok (and Bills of Attainder!), with Prof. Alan Rozenshtein
• The 1st Amendment on Campus with Berkeley Law Dean Erwin Chemerinsky
• Free Speech On Campus
• AI and Free Speech
• Free Speech, Government Persuasion, and Government Coercion
• Deplatformed: The Supreme Court Hears Social Media Oral Arguments
• Book Bans – or Are They?

Comments

[Commenter_XY]

Professor Volokh, thx for posting the free content. You and Professor Blackman do that a lot, and I really appreciate this.

Relatedly, thx for maintaining a focus on our free speech rights. Now more than ever, it matters.

The freedom to speak is the freedom to think. The two cannot be divorced.

[TwelveInchPianist]

The idea that the first amendment protects an unconstrained right for professional journalists to gather information strikes me as an absurdity.

The idea that it protects a less constrained, but still significantly constrained right for professional journalists to gather information strike me as incompatible with the nature of a constitutional right.

[Dr. Ed 2]

A decade ago, the Mass State Police were issuing press passes to people who could prove that over half their income came from journalism. As they aren't anymore, I suspect they got called on that.

[ReaderY]

What do you see as “the nature of a constitutional right” that makes it incompatible?

[TwelveInchPianist]

Constitutional rights are generally broad based and not subject to lots of exceptions. But nobody's arguing for some sort of broad based exemption from generally applicable laws for the institutional press, because that would be an absurdity. They're claiming that "freedom of the press" might exempt the institutional press from a few laws, like being forced to testify against their sources and maybe some types of trespassing.

[Jack Jordan]

It might seem that constitutional rights should not be "subject to lots of exceptions," but that's not really the way it works. The freedom of speech provides an excellent example. Lots of speech is illegal or even criminal (for example, threatening the president or intimidating a witness). Lots of regulations govern when, where and how we can speak (time, place and manner). Take court proceedings, for example. They consist nearly entirely of exercises of the freedom of speech (including the freedom not to speak at times). Even so, the speech of everybody involved (judges, parties, lawyers, witnesses) is heavily regulated.

[John F. Carr]

My first reaction to the question asked is, when resources are constrained the institutional press should get priority. The public is better off with a dozen journalists attending a public trial than a dozen random people. There may also be situations where a person with a press pass can be trusted not to make trouble. I've heard of a county granting permits to keep a dog off leash.

[Dr. Ed 2]

I disagree on the first, and the current issue with the AP indicates the second.

Now as to what MA courts often do with photography -- you gotta give anyone else the right to print your photos or use your video -- that makes sense. But imagine if FDR had said "no radio, newspapers only."

Or, better, if Teddy had said "no muckrakers."

[TwelveInchPianist]

"My first reaction to the question asked is, when resources are constrained the institutional press should get priority."

Is that an opinion on what is good policy, or is prioritized access for institutional press when resources are constrained somehow a right protected by the first amendment?

Also, limiting access to a public trial to members of the institutional press raises sixth amendment issues.

[CJColucci]

When I was in law school, I took a first amendment seminar team-taught by Benno Schmidt and Floyd Abrams. Abrams missed a few classes when he came down with chicken pox, normally a childhood disease. Looked awful on a middle-aged bald man.

[Stephen Lathrop]

Does the Free Press Clause provide extra rights to the institutional press, or instead protect all speakers' equal rights to use the printing press and its technological heirs?

That is click-bait to encourage stupid hostility to institutional media. There is zero historical explanation for a separate press freedom clause, except to protect an institutional press. Advocacy to the contrary is entirely present-minded.

The record starts with the historical fact that the institutional press was the principal political tool used by this nation's founders to make the revolution, and to pass the Constitution, and to get it ratified. But there is no need to stop with that inference, however persuasive. The record is replete with explicit language from leading founders, who praised the political advantages to encourage and protect newspaper publishing. Individually, all but a few of the leading founders were themselves active contributors of political material for newspaper publication. A surprising number of them were personally active as publishers, or investors in publications.

Benjamin Franklin was probably the the world's most successful, active, and influential newspaper publisher at the time. He had contributed to, organized, encouraged, and personally managed newspaper publishing in England, up and down the American eastern seaboard, in the Caribbean, and in France. Franklin even backed a German language newspaper in Pennsylvania, despite a personal distaste for German immigration there. The first thing that happened after the final draft of the Constitution was approved in Philadelphia, is that the draft was put into Franklin's hands to carry it to a newspaper publisher.

Of course the notion was never, "extra rights," for a favored few, at the expense of others. The notion was that experiments with use of the institutional press had proved that a particular kind of collaborative expressive activity worked better to inform public opinion than any amount of non-collaborative activity by the same people could accomplish. That proof was reiterated time and again during the American founding era.

So the founders saw to it that all people who wanted to practice collaborative institutional publishing were afforded a right to do it. And, crucially, that they were protected from government meddling while they did so.

Problem today is, too many Americans feel threatened by the information gathering advantages an institutional press affords. They lack self-awareness necessary to understand how heavily reliant they continue to be on institutional news gathering—without which they would know almost nothing at all about public affairs. They suppose obtusely that if they read news online, that must mean online agency unrelated to institutional publishing provided it. That is almost always a misimpression.

Those misinformed folks include fraudsters, and would-be political liars. Especially numerous among them are ordinary citizens who want baseless opinions treated on par with facts they lack means either to critique, or to ascertain on their own.

There is political power to be mobilized, if that kind of fecklessness can be encouraged, so the encouragement happens. It comes with a corollary effort to hamper influence for institutional publishing. And sometimes even with demands for government interventions to burden institutional publishing by law, by policy, or by legal action. It is hard to imagine public advocacy less wise than demands of that sort.

Sad to see an erstwhile 1A fundamentalist joining in.

[ReaderY]

I think that advocates of the institutional-press-is-no-different position do need to explain why two separate clauses were used when one, speech, would have done just as well.

[TwelveInchPianist]

To make it clear that the clause prevented things like licensing printing presses.

[TwelveInchPianist]

"So the founders saw to it that all people who wanted to practice collaborative institutional publishing were afforded a right to do it. And, crucially, that they were protected from government meddling while they did so."

Really? Can the institutional press search government offices and private homes without government meddling if they intend to publish what they find? Can they torture people without government meddling? Or does "freedom of the [institutional] press merely protect things that you think journalists should be allowed to do?

[Jack Jordan]

You say, "There is zero historical explanation for a separate press freedom clause, except to protect an institutional press. Advocacy to the contrary is entirely present-minded." "Problem today is, too many Americans feel threatened by the information gathering advantages [of] an institutional press." How did "the press" in the 1780's have "information gathering advantages" over all the other people who obtained the information that was printed?

The problem isn't the hostility of these professors to an institutional press. The problem is (as the professors emphasized) the hostility of some judges to the notion that individuals have the same First Amendment rights and freedoms as members of "the institutional press." Another problem is that government employees really cannot be trusted to appropriately define what "the press" is in a way that won't discriminate based on content and viewpoint. We're seeing an example of that right now with the Trump administration excluding the AP because of content and viewpoint.

[TwelveInchPianist]

[Jack Jordan]

Wouldn't we be more faithful to the text and purpose of the Constitution to stop discussing a "press" clause separately from a "speech" clause? The First Amendment clearly speaks of a single freedom in two potential forms ("the freedom of speech, or of the press"). SCOTUS (rightly) commonly simply refers to a more general "freedom of expression."

Even more important is the source of such freedom. It isn't the mere First Amendment. It is the sovereignty of the people (over ourselves and over our public servants), as Madison emphasized in his Report of 1800 regarding the Sedition Act of 1798. As Madison also emphasized, the people exercised the freedom of speech and press to propose and discuss our Constitution and create our nation. We the People vested parts of our powers of speech and press in various public servants in the legislative, executive and judicial branches. All the powers our public servants exercise were merely derived from and delegated by the people (as the Preamble, the Tenth Amendment and Section 1 of Articles I, II and III powerfully emphasized). The powers of expression that our public servants exercise on our behalf are evidence and indications of the nature of our own freedom of expression.