Journal of Free Speech Law: "The Press Clause: Important, Remembered, and Equally Shared," by Eugene Volokh

This article, which responds to Floyd Abrams, Sandra Baron, Lee Levine, Jacob M. Schriner-Briggs & Isaac Barnes May's The Press Clause: The Forgotten First Amendment (and, in part, to Matthew Schafer's "The Press Clause": A Response to Professor Volokh), is here. The Introduction:

The Press Clause: The Forgotten First Amendment, a Report from the Floyd Abrams Institute for Freedom of Expression, is a powerful argument for a broader understanding of the Free Press Clause. Much of its analysis will, I expect, prove important and useful to judges, lawyers, legal academics, and citizens. But one of its core premises—that the Free Press Clause should be read as conferring extra rights on the institutional press, beyond those possessed by others who speak to the public—strikes me as mistaken.

The Court's current precedents take the view that the First Amendment secures an equal right of everyone to use mass communications technology. These precedents generally do not offer special First Amendment rights to "the press" in the sense of a particular set of businesses or institutions. Rather, they protect the freedom of all to use "the press" in the sense of the printing press and its modern technological descendants. And this is also the approach taken by the great bulk of authorities from before the Framing through the 1800s and 1900s to today.

Under this model, the Press Clause is far from "forgotten" or stripped of "independent meaning or impact": It secures the critically important right of all people to use the means of mass communications. By itself, the Speech Clause could easily have been understood as just protecting "speech" in the longstanding historical sense of face-to-face oral expression. Indeed, in the 1600s and 1700s many governments deliberately tried to constrain printing presses on the theory that mass communication via the printing press was more dangerous than face-to-face oral communication and thus needed to be specially suppressed.

The Press Clause made clear that the use of mass communication technology (originally just the printing press) should be as protected as the use of one's voice. This understanding has ensured that all mass communicators—institutional media as well as others—are constitutionally protected. To the extent that today courts often use "speech" as shorthand for speech and press (and petition), that is a product of the vigor of the Press Clause, not a sign that the Clause has been forgotten.

And, I argue below, the sources cited in the Report's originalist, traditionalist, precedential, and structural arguments do not support special First Amendment treatment for the institutional media. Instead, many of the sources the Report cites actually support the thesis that the right belongs to all who sought to communicate to the public.

You can also see my earlier Freedom for the Press as an Industry, or for the Press as a Technology?—From the Framing to Today, 160 U. Pa. L. Rev. 459 (2012); the Abrams et al. Report in some measure responds to that, and Prof. Schafer's article, true to its name, does as well.

Comments

[rloquitur]

The freedom of the press probably protects newsgathering activities as well, particularly vis a vis government.

Amazing that none of the Volokh 1A absolutists ever pointed out Xavier Becerra's thuggishness on this issue. How in the world was he qualified to be HHS secretary.

[MatthewSlyfield]

"The freedom of the press probably protects newsgathering activities as well"
Only to the extent that it protects such activities for all,not just for "professional journalists".

[rloquitur]

https://pressfreedomtracker.us/all-incidents/california-attorney-general-threatens-reporters-legal-action-over-public-record/

For those who want some background on Xavier Becerra. He should spend the rest of his life in prison for this.

[David Nieporent]

But one of its core premises—that the Free Press Clause should be read as conferring extra rights on the institutional press, beyond those possessed by others who speak to the public—strikes me as mistaken.

Oh, come on. This is pure Lathrop bait. You're just trying to see how high you can raise his blood pressure.

[Krayt]

The press as shorthand for protected speech and behaviors is fine.

But if the power mongers think they get the honor of sitting there and saying, "We're gonna create a class of people called 'The Press', and act as gatekeepers of who gets to be one, and if we don't let you in, and you do one of those behaviors, off to jail with you!", then no thank you.

[Stephen Lathrop]

Krayt, you are right to condemn the behavior you describe. You would be mistaken to suppose it has been commonplace, or even frequent enough to worry about.

I am not aware of any influential press freedom advocate who has ever endorsed what you put in italics. The closest recent approximations of that—and they are not very close—have come from press freedom opponents, who demand assistance from government censors, on behalf of twisted policy schemes to advantage particular (usually right wing, these days) points of view.

[Absaroka]

"I am not aware of any influential press freedom advocate who has ever endorsed what you put in italics"

That's great! Since there isn't a gatekeeper, we're all members of the press, with all the rights that gives!

[Stephen Lathrop]

Exactly, Absaroka. And with all the obligations that imposes.

Also? The gatekeeper grievance is irresponsible whining. In pre-internet days, the publishing gates being kept were all privately owned, and on private property. There was never any general right to pass through them, except by permission of the owners.

What was protected, and remains protected now, is a general right to set up your own gates on your own property. That is a right you can enjoy fully without need to tear down gates owned by others.

To say that is not to assert there is nothing wrong with today's internet publishing regime. It is a mixed bag, with good features and terrible ones. But to solve the problems does not require restrictions to be imposed on institutional publishers generally.

[Jack Jordan]

Stephen, I think you misunderstood Krayt. The concern isn't that any "press freedom advocate" will take that position. The (very well-founded concern) is that judges, prosecutors and police will. The latter are the ones who too often like to pretend that SCOTUS precedent regarding the freedom of the press does not protect the rest of us.

[Stephen Lathrop]

Jack Jordan, the judges and prosecutors who now look like candidates to do that—and I do not agree there are many, or that they present much of a threat—seem almost entirely to want to do it to advantage right wing advocacy. I oppose doing it no matter what. The single most important liberty protected by the 1A press freedom clause is liberty from government interference.

[Jack Jordan]

If seen judges come up with the most frivolous purported distinctions to try to explain why protections for "the freedom of speech" or "the freedom of the press" don't cover expression that judges don't like. Their political viewpoint is irrelevant (to me). It's their process that I'm addressing. The point here is that people like Professor Volokh (and I) have good reasons for arguing that the words "the freedom of speech, or of the press" don't entitle reporters, journalists, newspapers or anyone else to more protection than they extend to all us sovereign citizens. The distinction you're making WILL result in judges saying otherwise.

[Stephen Lathrop]

Jordan — You seem short of specifics, so it is hard to focus a reply.

As a general thing, there is no way to prove a case of disparate protection based on a contrast between parties practicing substantively different activities. That argument is undermined because the supposedly disfavored party always remains free to take up practice of previously disused protected activities.

It would be one thing if judges were saying a professional reporter was entitled to publish particular content, but the same content from Joe Keyboard was forbidden. That is not what happens. Not ever, as far as I know. I must allow possibility for vanishingly rare exceptions, but those will not sustain a case.

Your argument, which you make in plentiful company, seems to be that expressive liberties some do not choose to practice, ought to be denied to others, as a method to enforce equality. That is unwise for three reasons:

First, the historical record shows it misinterprets the press freedom clause;

Second, because to do it your way would generally shrink the scope of expressive liberty, while doing nothing at all to increase the expressive liberty enjoyed by anti-institutionalists;

Third, and maybe most important, the anti-institutionalists, for all their resentments, reap an indispensable information advantage, by virtue of the mandated protection government affords to the information-gathering activities of an institutional press. That information is shared by society generally, not just among some privileged class.

[Jack Jordan]

Speaking of being short on specifics, please show me where and how you think I argue "that expressive liberties some do not choose to practice, ought to be denied to others, as a method to enforce equality." What "expressive liberties" do you believe I think should be "denied" to anyone?

I think you are (repeatedly) completely misrepresenting what I said. I said (as SCOTUS and Professor Volokh have said) we all have the same liberties, which enjoy the same due process protections, regardless of whether someone can claim to be a member of "the press." Why do you think (or say) that I said anything else?

[Rossami]

Yeah, I saw that and started counting the minutes until some unhinged (and to me, grayed-out) rant shows up.

[rloquitur]

The freedom of the press, properly understood, does NOT confer extra rights on journalists qua journalist, it protects the right of all of us to conduct newsgathering.

[Jack Jordan]

With great respect to supporters of the institutional press, I submit that arguing that "the freedom" of "the press" was meant protect only some particular profession(s) is necessarily myopic and clearly contrary to our Constitution.

As Chief Justice Marshall emphasized in McCulloch v. Maryland, "we must never forget, that it is a [national] constitution we are expounding." Chief Justice Marshall also elaborated on the most important principles of our national constitution:

"The government of the Union [ ] is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and [exclusively] for their benefit. This [national] government is acknowledged by all to be one of enumerated [limited] powers. [ I]t can exercise only the powers granted to it . . . . . That principle is now universally admitted."

As Justice Alito (joined by Justices Scalia and Thomas) put it in a dissenting opinion in Obergefell v. Hodges, 576 U.S. 644, 741 (2015), "In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny."

The very first words of our Constitution introduce American sovereigns and emphasize that "We the People" created our "Constitution" and "Union" to "establish Justice" and "secure the Blessings of Liberty to ourselves."

Three times (in Section 1 of Articles I, II and III) our Constitution emphasized that We the People merely "vested" only parts of our sovereign "powers" in our public servants in each branch of government. The Ninth Amendment expressly emphasized a principle that was implicit in the original Constitution: all "rights" are "retained by the people." The Tenth Amendment did the same. It expressly re-emphasized that We the People "by the Constitution" merely "delegated to the United States" certain limited "powers" and "prohibited by it [our Constitution] to the States" certain "powers" (e.g., in Article I, Section 10 and Amendments XIII, XIV, XV, XIX, XXIV and XXVI) and we "reserved to the States" certain powers and "reserved" to "the people" all residual "powers."

So the crucial issue is that We the People clearly did not vest any power in any federal public servant to abridge any right or freedom in the First Amendment. Many times, the Founders and Framers emphasized that our Constitution vested no such power. Alexander Hamilton in The Federalist No. 84 asked: "why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?"

The First Amendment emphasizes rights and powers that the people necessarily exercised to create, empower and restrain state, as well as federal, governments. So the First Amendment emphasizes rights and powers that the people necessarily retained when We the People created our nation, e.g., freedom of thought, expression, association. No public servant was delegated in the U.S. Constitution or could possess under any state constitution any power to injure any of us for exercising our First Amendment rights or freedoms.

[Jack Jordan]

A compelling constitutional argument could be made supporting something like special access for journalists or reporters founded, not on the Press Clause, but on our entire Constitution. Our entire Constitution is devoted to empowering and restraining representatives.

Every public servant (in every branch) identified in our Constitution is a representative of the people. All court officers (including judges and attorneys employed by courts, as well as all attorneys admitted to represent any client in any court) are representatives. Women and younger adults originally had no right to vote because they (purportedly) were virtually represented by those who did have the right to vote. The grand jury and the trial jury represent the people of the area. The right to counsel means we can have attorney representatives, but the freedom of speech and press means we also have the right to represent ourselves.

There's no good reason that any public servant should have the power to deny any citizen or any representative access to information merely because it's impractical or counterproductive to give a whole mob access.

[Brett Bellmore]

"A compelling constitutional argument could be made supporting something like special access for journalists or reporters founded, not on the Press Clause, but on our entire Constitution. "

I would make the opposite argument, that the entire constitution is based on the idea that every citizen has exactly the SAME rights, an ideal which it has repeatedly been amended to better approach.

And so any reading that suggests some specific group of people have superior rights and/or privileges should be rejected.

I see you start out suggesting that there's a constitutional case for journalists having special access, but happily get around to rejecting that view by the end of your comment. At least if I'm reading you right.

[Stephen Lathrop]

As always on this Constitutional question, EV gets the founders wrong. But he does get their principle of equality partly right.

EV is right that no specially-privileged class was created by the press freedom clause. He is wrong about the common denominator the founders posited as the right basis of equality.

Leaving historical research aside as a method unfamiliar for EV—and for many who comment here (even though the historical record settles the question unambiguously)—alternative interpretations remain only two:

1. Either EV's novel and peculiar assertion that a press freedom clause inspired by, authored by, and signed by, newspaper publishers, habitual newspaper contributors, and explicit newspaper advocates, did not refer to newspapers, or;

2. Those same advocates intended to protect a power for anyone and everyone to engage on a basis of equality with others in the collaborative power of institutional publishing—which is to say, newspapers. Those had already disclosed institutional publishing advantages more than notably, by enabling the revolution, and promoting ratification of the Constitution.

EV, and his fellow institutional publishing skeptics, overlook a crucial point. EV's notion of press freedom as mere equality of access to printing technology does not expand expressive liberty; it narrows it. It does so by excluding from explicit protection collaborative multi-person activities which characterize institutional publishing. By their nature, those activities are all but impossible to be accomplished individually. They turned out historically to be force multipliers on the citizen side of the government/citizen power balance. That is why the founders wanted them protected.

The power protected is not some puny capacity to activate at random some particular technology, capable to disseminate information, had there been an audience, or means to reach it, and to pay to do it, once.

To take as illustration just a simple example, founding era pamphleteers (including even Tom Paine, who was in fact a successful institutional publisher professionally) did not typically curate numerous attentive audiences for repeat publications. That happened only by resort to newspapers, capable to supply and serve audiences ready-made. It was by that means that pamphlet contents might become mass political causes.

Otherwise, pamphlets were mostly written and circulated as means to influence small, select audiences. Those were comprised of elite members with power to decide the issues discussed. Ben Franklin's correspondence discloses that process at work among British ministers, and members of Parliament, whom Franklin attempted with scant success to influence with pamphlet publications of his own.

Thus, the most important power protected by the press freedom clause is a power to curate a mass audience, and a corollary power to mobilize practical means to serve that audience continuously. That is the liberty essential to turn facts and public opinion into political power. The founders knew that on the basis of experience doing it, and wrote the press freedom clause into the Constitution accordingly.

[David Nieporent]

Words not found in the first amendment: "institutional." "publishing."

[Stephen Lathrop]

Yup. "Newspaper," is not in there either. Do you argue on that basis that the 1A had nothing to do with newspapers?

[Brett Bellmore]

Sure, as just one of the many forms of publishing EVERYBODY is constitutionally entitled to engage in.

[Stephen Lathrop]

Exactly, Bellmore. Entitled to engage in. Which does not mean actually engaging.

Those who do not actually engage in institutional publishing activities—although nothing bars them from doing so—do not, of course, have occasion to reap benefits protected for the practice of those activities. They instead get the liberties required to protect what they actually do, at least until they change their minds and do more.

Nor does that difference in protection—based on nothing more than than choices people are at liberty to make otherwise—carry any proper implication that institutional publishers are restricted only to the set of expressive liberties protected for others who do not practice institutional publishing activities.

And by the way, except in terms of civil liability to third parties, none of this has anything to do with specific content which either group is entitled to publish. That ought to remain the same for both.

There should also be equality of civil liability, but that opens the fraught question of Section 230, a Congressional blunder which made it otherwise.

[Jack Jordan]

What in our Constitution makes you think that "Those who do not actually engage in institutional publishing activities" merely "get the liberties required to protect what they actually do, at least until they change their minds and do more." What in our Constitution makes you think the scope of any person's rights and freedoms in the First Amendment depends on whether that particular person actually exercises any such right or freedom?

[David Nieporent]

There should also be equality of civil liability, but that opens the fraught question of Section 230, a Congressional blunder which made it otherwise.

It did not make it otherwise. Liability turns on whether we're discussing online or offline, but not on whether we're discussing institutional publishers or individual speakers.

[David Nieporent]

Do newspapers involve a press?

[Jack Jordan]

I think you are overlooking the significance of the language of the First Amendment. It clearly expressly refers to one freedom ("the freedom") known by two potential names. It precludes "abridging the freedom of speech, or of the press.” The purpose of that language clearly was to clarify that the same protection exists, regardless of whether we refer to the freedom of speech or to freedom of the press (some people are more inclined to refer to the freedom of speech, others are more inclined to refer to freedom of the press). The point is to protect the freedom to think and express thought in any manner. The Free Exercise Clause further emphasizes that such protections apply to religious thought and expression, as well.

Most people responsible for writing the Constitution were lawyers or judges. So think about litigation as an illustration. Pretty much all litigation involves speaking and writing. Litigation is protected as an exercise of "the freedom of speech, or of the press."

Many people responsible for writing the Constitution were legislators. Legislators discuss, write and publish legislation. Judges think about, write and publish court documents. All of them are exercising the parts of our own freedom of speech and press that we delegated to them.

Arguing about the meaning of the Press Clause, as if it stands alone (without any nexus to the freedom of speech), clearly is not reading or thinking about the Constitution correctly.

[Stephen Lathrop]

Jack Jordan — You seem determined to conclude that a correct reading of the 1A would narrow its protection to exclude activities peculiar to the operations of an institutional press. Why?

[Jack Jordan]

I don't understand why you think I think "that a correct reading of the 1A would narrow its protection to exclude activities peculiar to the operations of an institutional press." What "activities peculiar to the operations of an institutional press" would be excluded by my analysis?

[Stephen Lathrop]

What "activities peculiar to the operations of an institutional press" would be excluded by my analysis?

Jordan — Consider the NYT on the one hand, and Joe Keyboard on the other. Make yourself a list of activities practiced by the employees of the NYT collectively, and another of the activities practiced by Joe Keyboard. If you have any insight into how an institutional press works, comparison of your lists will answer your question.

Here is a hint for you: the NYT list will show a broad variety of activities, of different sorts, practiced collaboratively by many, with an eye to making a success of a publishing business. The Joe Keyboard list will be much shorter. Concentrate on the differences.

Keep in mind that my advocacy is that both kinds of activities should get maximal constitutional protection from government interference. You have to stay alert to the differences to get insight into why it was necessary to add a press freedom clause to the speech freedom clause in the Constitution.

[Jack Jordan]

Stephen, you misrepresented that I argued for less protection for the institutional press, so please make your list to try to show the truth of your contentions. In what way could any protection for any reporter, journalist or newspaper be lessened by what I showed is the correct reading of our Constitution? Name even one protection for the institutional press that you think would be diminished by the correct reading of our Constitution (which I presented in my two longer comments, above).

[David Nieporent]

It does not "narrow" anything. There are no "activities peculiar to the operations of an institutional press" that are protected, but nobody had to "narrow" it for that.

[Alpheus W Drinkwater]

Since I'm not an originalist, I have no problem with interpreting the first amendment this way. But the framers very often used the word "Press" to refer collectively to the newspapers of the time, not just a mechanical press to be used by any citizen. I've cited examples twice now from the letters of individual framers in this comment section. So I don't really understand how an originalist can support this interpretation, unless there is further evidence of exactly how the word was meant to be interpreted in 1789.

[Jack Jordan]

The most important aspect of our Constitution relevant to this issue is not anything in the First Amendment. You might consider my longer post above (about the fact that American citizens are sovereigns). Our "freedom of speech, or of the press" is not something granted to us by our (mere) public servants. Quite the opposite. We the People delegated to our public servants only parts of our own powers to think, speak, write and publish regarding our self-government. The First Amendment merely explicitly stated some of what was implicit in the original Constitution (we retained all such powers that we did not delegate to the federal government).

Arguing about the meaning of the Press Clause without considering the sovereignty of the people clearly is not reading or thinking about the Constitution correctly.

[Brett Bellmore]

"The First Amendment merely explicitly stated some of what was implicit in the original Constitution (we retained all such powers that we did not delegate to the federal government)."

It's actually explicit in the 10th amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

[Jack Jordan]

True. I elaborated a little more on the Tenth Amendment in my long comment, above. The Ninth and Tenth Amendments pretty well and quite concisely summarized the overall relationship of the sovereign people and our public servants that was partially implicit and partially explicit in our Constitution. Under our original Constitution, We the People implicitly reserved all our rights regardless of whether they're (ever) expressly included in the Constitution. We explicitly allocated or denied powers as we saw fit and (necessarily and implicitly) retained other powers.

[kmcarlson1952]

Mr Volokh, I think the ‘payday’ pitch of your article is on page 692, quoting Justice Gorsuch, “This arrangement would conceptualize the Press Clause as a “quid-pro-quo” in which the press receives additional rights so long as it makes good-faith efforts to exercise those rights in a manner that serves its democratic functions.” Using the list of ‘Factors’ on page 690 (or any set of defined press qualifications) changes, fundamentally, the right of the press into the privilege of the press, which can be granted or revoked with the change of the mood of the electorate or their representatives. Frankly, I’m a surprised (and a little disappointed) that Mr. Abrams, a long time defender of the first amendment, would sign his name to this concept.

[Stephen Lathrop]

kmcarlson1952 — Almost nobody arguing on behalf of an institutional press is doing it on the basis of any claim to special rights. The claim is that everyone is entitled alike to Constitutional protection for all the rights required to enable institutional publishing.

Resentment, of course, arises because Joe Keyboard pecking away by his lonesome understands that nothing he can do will garner him influence to rival that of others. At least not if those others collaborate to operate press institutions, and curate visible audiences, which influence policy makers. Complaining Joes would be wiser to get busy and collaborate. The Press Freedom clause guards their right to do it.

[Jack Jordan]

I'm not sure what your second paragraph was about, but I think your first paragraph is incorrect. The SCOTUS decisions I've read relevant to this particular issue are denying claims by reporters or journalists or newspapers that they have some special "right of access,"
specifically because they are "the Press."

[Stephen Lathrop]

Jordan — You have me at a disadvantage. Let's address those claims in terms of specific SCOTUS decisions, so I can see what you are talking about. Please supply some cites for me to look at.

[Jack Jordan]

Stephen, I'm sorry to have to say this, but if you truly don't know (and truly haven't read) the SCOTUS decisions, then you really haven't considered this issue enough to even understand what this discussion is all about. What, really, is your point in arguing that "the press" refers to newspapers? Of course (obviously), it includes newspapers, but so what? How and why should that matter to anyone trying to resolve any legal issue that might arise today in any legal proceeding regarding the meaning of "the freedom of speech, or of the press"?

[Jack Jordan]

Stephen, I'm starting to think that you did not even actually read the arguments to which Professor Volokh said (at the outset) he was responding. The statements by the institutional press's advocates refute several of your arguments, above, and identify a relevant issue and a relevant SCOTUS decision. See, e.g,, The Press Clause: The Forgotten First Amendment, p. 637 and fn. 401.

Advocates for the institutional press urged "the courts to adopt the rationale in Justice Potter Stewart’s concurrence in Richmond Newspapers: When there is only limited access to a given government proceeding, space must be reserved for members of the press." See "Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 600 n.3 (1980) (Stewart, J., concurring) (arguing that, when not all who wish to attend a trial may do so due to practical restrictions, 'the press must be assured access')."

[Jack Jordan]

Advocates for the institutional press (at page 639) provided another perhaps far more compelling "example, the Press Clause could be held to require that journalists be permitted to appeal judicial orders requiring them to divulge the identities of confidential sources without first subjecting themselves to a finding of contempt."

See also page 640:
"Encourage Congress to pass a federal shield law such as the Protect Reporters from Exploitative State Spying ('PRESS') Act," which would protect only a "covered journalist" from being compelled "to disclose protected information.”