“The Freedom … of the Press,” from 1791 to 1868 to Now — Freedom for the Press as an Industry, or the Press as a Technology?

That’s the long but descriptive title of my new article, which I’ve finally gotten out the door and to law reviews. Here’s the Introduction, minus most of the footnotes; the full article is here.

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“[T]he freedom … of the press” specially protects the press as an industry, which is to say newspapers, television stations, and the like—so argue some judges and scholars. “The Press Clause singles out the press as an institution entitled to special protection under the umbrella of the First Amendment.” And this argument is made in many contexts: election-related speech, libel law, the journalist’s privilege, access to government property, and more.

The four Citizens United v. FEC dissenters, for instance, asserted that “[t]he text and history” of the Free Press Clause “suggest[] why one type of corporation, those that are part of the press, might be able to claim special First Amendment status.” Therefore, the dissenters argued, restrictions on the Free Speech Clause rights of non-press entities can be upheld without threatening the special Free Press Clause rights of the institutional press.

Likewise, Justice Stewart famously argued that the Free Press Clause should be read as specially protecting the press-as-industry, because “[t]he primary purpose of the constitutional guarantee of free press was … to create a fourth institution outside the Government as an additional check on the three official branches.” Justice Powell likewise reasoned, referring to the press-as-industry, that “[t]he Constitution specifically selected the press … to play an important role in the discussion of public affairs.”

Justice Douglas similarly argued that professional journalists are constitutionally entitled to a privilege not to testify about their sources, because the press-as-industry “has a preferred position in our constitutional scheme.” And some lower courts have indeed concluded that some First Amendment constitutional protections apply only to the institutional press.

Sometimes, this argument is used to support lesser protection for non-institutional-press speakers than is already given to institutional-press speakers. At other times, it is used to support greater protection for institutional-press speakers than they already get. The argument in such cases is that this greater protection can be limited to institutional-press speakers, and so will undermine rival government interests less than it would have if the greater protection had to be extended to all speakers.

But other judges and scholars argue that “the freedom … of the press” does not protect the press as industry, but rather protects everyone’s use of the printing press (or its modern equivalents) as a technology. People or organizations who want to occasionally rent the technology, for instance by buying newspaper space, broadcast time, or the services of a printing company, are just as protected as newspaper publishers or broadcasters. [Footnote: Alternatively, one could conclude that people who rent such space become members of the press-as-industry for that occasion. But then the results would be the same as under the press-as-technology view, because anyone who uses the press as technology on occasion would be treated the same as members of the press-as-industry.]

[Footnote: I speak here of communication technology that today serves the role the printing press did in the 1700s, not just of the printing press as such. “‘[P]ress,’ the word for what was then the sole means of broad dissemination of ideas and news,” should “be used to describe the freedom to communicate with a large, unseen audience” even using new technologies that were not known to the Framers. First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 800 n.5 (1978) (Burger, C.J., concurring). The printing press itself was understood during the Framing era as a technological innovation, and rights were understood as being adaptable to technological innovations.]

The Citizens United majority, for instance, held that “the institutional press” has no “constitutional privilege beyond that of other speakers.” Three concurring Justices buttressed this with an explicit discussion of the constitutional text. Likewise, Justice Brennan often argued against treating media and nonmedia libel defendants differently for First Amendment purposes.

Under this approach, the First Amendment rights of the institutional press and of other speakers rise and fall together. Sometimes, this approach is used to support protection for non-institutional-press speakers, and to resist calls for lowering that protection below the level offered to institutional-press speakers. At other times, it is used to rebut demands for greater protection: Extending such protection to all speakers, the argument would go, would excessively undermine rival government interests. And allowing such protection only to the institutional press would improperly give the institutional press special rights.

And both sides in the debate often appeal at least partly to the text and to its presumed original meaning. The words “the press” in the First Amend¬ment must mean the institutional press, says one side. The words must mean press technology, says the other. Who’s right? Citizens United is unlikely to have settled the question, given how sharply the four dissenters and many outside commentators have disagreed with the majority.

This Article seeks to answer this question, by looking at the “history” pointed to by Justice Stevens’s Citizens United dissent, and the light that history sheds on the “text” and (to use Justice Stewart’s word) the Framers’ “purpose.” Part II will look at evidence from the Framing and the surrounding decades that helps show how the text was likely understood around the time that it was written. And it turns out the text was likely understood as fitting the press-as-technology model—as securing a right of every person to use communications technology, not just a right belonging to members of the publishing industry.

Various sources support this conclusion, including fourteen cases from 1784 to 1840 that treated the freedom of the press as extending equally to all people who used press technology, and not just to members of the press-as-industry. (To my knowledge, these cases have not been discussed before in this context.) Each of the sources standing alone may not be dispositive. But put together, they point powerfully towards the press-as-technology reading, under which all users of mass communication technology have the same freedom of the press rights.

Part III turns to how the “freedom … of the press” was understood around 1868, when the Fourteenth Amendment was ratified. Much recent scholarship has plausibly suggested that an originalist analysis of Bill of Rights provisions applied to the states via the Fourteenth Amendment should consider the original understanding as of 1868 in addition to 1791. And it turns out that around 1868, it was even clearer that the “freedom … of the press” secured a right to use the press-as-technology, with no special protection for the press-as-industry. Part IV offers evidence that this remained true from 1880 to 1930.

Part V then looks at how the “freedom … of the press” has been understood by the Supreme Court and by lower courts since 1931, the first year that the Court struck down government action on First Amendment grounds. Throughout that time, it turns out, the press-as-technology view has been dominant, and it continues to be dominant today. Many Supreme Court cases have officially endorsed this view. No Supreme Court case has rejected this view (though some cases have suggested the question remains open). In fact, the first lower court decisions I could find rejecting the press-as-technology view did not appeared until the 1970s.

None of the evidence I describe specifically deals with corporations, the particular speakers involved in Citizens United. But it does show that the institutional media (in whatever form) and other people and organizations (in whatever form) have historically been seen as on par for purposes of “the freedom … of the press” as it was originally understood. The constitutional protections offered to the institutional media have long been understood—in the early Republic, around 1868, from 1868 to 1970, and by the great bulk of cases since 1970 as well—as being no greater than those offered to others.

Finally, Part VI says a few words about what effect this should have on how the Free Press Clause should be interpreted. Of course, text, original meaning, tradition, and precedent have never been the Supreme Court’s sole guides. But any calls for specially protecting the press-as-industry have to look to sources other than text, original meaning, tradition, and precedent for support.