My article, Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, 160 U. Penn. L. Rev. 459 (2011), available in its full PDF form here, has just been published; here is the Introduction:
“[T]he freedom … of the press” specially protects the press as an industry, which is to say newspapers, television stations, and the like — so have argued some judges and scholars, such as the Citizens United v. FEC dissenters and Justices Stewart, Powell, and Douglas. This argument is made in many contexts: election-related speech, libel law, the journalist’s privilege, access to government property, and more.
Some lower courts have indeed concluded that some First Amendment constitutional protections apply only to the institutional press, and not to book authors, political advertisers, writers of letters to the editor, professors who post material on their websites, or people who are interviewed by newspaper reporters. Sometimes, this argument is used to support weaker 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 the latter set of cases is that the greater protection can be limited to institutional-press speakers, and so will undermine rival government interests less than if the greater protection were extended to all speakers.
But other judges and scholars — including the Citizens United majority and Justice Brennan — have argued that the “freedom … of the press” does not protect the press-as-industry, but rather protects everyone’s use of the printing press (and its modern equivalents) as a technology. People or organizations who 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.
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 goes, would excessively undermine rival government interests — yet allowing such protection only for the institutional press would improperly give the institutional press special rights.
Both sides in the debate often appeal at least partly to the constitutional text and its presumed original meaning. The words “the press” in the First Amendment must mean the institutional press, says one side. The words must mean press-as-technology, says the other. Citizens United is unlikely to settle the question, given how sharply the four dissenters and many outside commentators have disagreed with the majority. So who is right? What light does the “history” referred to by the Citizens United dissent shed on the “text” and the Framers’ “purpose”?
The answer, it turns out, is that people during the Framing era likely understood the text as fitting the press-as-technology model — as securing the right of every person to use communications technology, and not just securing a right belonging exclusively to members of the publishing industry. The text was likely not understood as treating the press-as-industry differently from other people who wanted to rent or borrow the press-as-technology on an occasional basis.
Parts I, II, and III set forth the evidence on this subject from the Framing era and the surrounding decades. Part I discusses, among other things, early reference works and state constitutions that described the freedom of the press as a right of “every freeman,” “every man,” or “every citizen.” This right was generally seen as the right to publish using mass technology, as opposed to the freedom of speech, which was seen at the time as focusing more on in-person speech. Part II discusses the Framing-era understanding that the freedom of the press extended to authors of books and pamphlets — authors who were generally not members of the press-as-industry, though they did use the press as technology. Part III goes on to discuss fifteen 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 toward the press-as-technology reading, under which all users of mass communications technologies have the same freedom of the press.
Part IV turns to how the “freedom … of the press” was understood around 1868, when the Fourteenth Amendment was ratified. Much recent scholarship has suggested that originalist analyses of Bill of Rights provisions applied to the states via the Fourteenth Amendment should consider the original understanding as of 1868 in addition to that of 1791. And it turns out that around 1868, it was even clearer that the “freedom … of the press” secured a right to use the press-astechnology, with no special protection for the press-as-industry. Part V offers evidence that this remained true from 1880 to 1930.
Part VI then looks at how the Supreme Court has understood “freedom … of the press” since 1931, the first year that the Court struck down government action on First Amendment grounds. Throughout that time, the press-as-technology view has continued to be dominant. 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.
Part VII turns to how the “freedom … of the press” has been understood by lower courts since 1931, and concludes that the press-astechnology view has been dominant there as well. The first lower court decisions I could find adopting the press-as-industry view did not appear until the 1970s. Even since then, only a handful of cases have adopted such a view, and many more have rejected it. (The press-asindustry cases that this Part identifies could also be helpful as test cases for any future work that discusses the policy advantages and disadvantages of the press-as-industry model.)
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 has historically been seen as the equal of other people and organizations for purposes of the “freedom … of the press.” The constitutional protections offered to the institutional media have long been understood — in the early republic, around 1868, from 1868 to 1970, and in the great bulk of cases since 1970 as well — as being no greater than those offered to others.
Finally, the Conclusion briefly discusses what effect this analysis should have on the Court’s interpretation of the Free Press Clause. 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.
If you’re interested in the subject, whether as to campaign speech restrictions, libel law, the newgatherer’s privilege, or other topics, have a look at the article.
Asher says:
Press as protected class of people, rather than type of activity, has the effect of creating a potential priesthood that declares what is and is not acceptable from “on high”. I don’t see how one can claim to favor the rule of law while advocating for special privileges for a special class of people.
It would be interesting to see a poll of those who label themselves “liberal”, maybe restricted to college grads, to see what percentage favors “freedom of the press” as applying to a class of people, rather than a class of activities.
Heck, I would invite one of the posters to put up such a poll for commenters.
January 2, 2012, 3:45 pmPersonFromPorlock says:
If there were no “freedom of the press,” wouldn’t “freedom of speech” serve in its place?
January 2, 2012, 4:38 pmSteve2 says:
I don’t have an OED handy or a subscription to their website, and I don’t know of another website that would tell me. When did the noun “press” acquire its “journalism institutions” definition?
January 2, 2012, 4:41 pmMartyH says:
I’ve always been of the “press as technology” opinion as well. Voice and printing were the two methods available to disseminate information; thus, the freedom to speak and publish were not to be abridged. If the Constitution had been written during Edison’s time, perhaps we would be arguing whether the “freedom of the phonograph cylinder” applied to both personally and commercially made recordings.
January 2, 2012, 4:46 pmJesse-Az says:
No. Press refers to the technology to distribute ideas: the printing press. Speech is vocalized.
January 2, 2012, 4:48 pmMr. Whiskas says:
How would one determine whether something is part of the “institutionalized press?” Would this website be part of that?
January 2, 2012, 5:15 pmEugene Volokh says:
PersonFromPorlock: I deal with your question in Part I.E.
Steve2: I touch on this in the introductory subsection of Part III.
January 2, 2012, 5:47 pmOwen H. says:
I recently read Stieg Larsson’s Millennium trilogy (“The Girl With The Dragon Tattoo”, etc.), and there was a commentary on the Freedom of Speech. If it was correct, in Sweden at leastthe Freedom of the Press, and indeed all other 1st Amendment rights, devolve from the Freedom of Speech. Freedom of Speech is worthless if you can’t assemble to express yourself, or write it down and distribute it, and also embodies the freedom of belief and religion.
Now, their beliefs on what the Freedom of Speech is and what it encompasses is very different from our own; although we agree that libel and slander are not protected speech, their system also holds that in a civilized society free speech does not include the right to harass or humiliate another person. I’m not sure I agree, as that could easily be abused, but then again we have a lot of people here that sometimes claim that expressing a particular viewpoint is an abuse too. And the Swedes do consider themselves a free people, living in a democracy.
January 2, 2012, 6:12 pmOwen H. says:
Given the use of broadsides to make political statements, often printed for hire and not written by the printers themselves, it seems ludicrous to me that the Framers did not intend to mean it as protection for everyone, as opposed to an institutionalized “press”.
January 2, 2012, 6:14 pmKane says:
I’m sorry I haven’t read the paper yet, but a quick question: How does such a freedom work in the real world? Does it have any meaningful effect? Does such a right have any realistic application in modern days?
Ah, yes. Money. The answer to anything and everything. So the freedom of press means the freedom of accessing the means to speak (if you can afford, that is). Our founding fathers were secret marxists. (or pre-marxists, whatever)
January 2, 2012, 6:21 pmayzc says:
From the Webster 1828 dictionary
“PRESS, n.
1. An instrument or machine by which any body is squeezed, crushed or forced into a more compact form; as a wine-press, cider-press or cheese-press.
2. A machine for printing; a printing-press. Great improvements have been lately made in the construction of presses.
3. The art or business of printing and publishing. A free press is a great blessing to a free people; a licentious press is a curse to society.”
January 2, 2012, 6:24 pmLarryA says:
It would be interesting to study just how much “institutional press” (IOW corporate newspapers with editors, reporters, and engravers) there was in 1791. Certainly no TV or radio stations existed. My uninformed impression from the history I’ve read ran to more of a “one guy with a one-sheet-at-a-time press” model, not unlike modern bloggers.
Drawing the line is one of the major problems. There are lots of folks who would not include National Enquirer or Fox News. These days there are people who would like to exclude the New York Times.
January 2, 2012, 6:47 pmJust Dropping By says:
I think definition No. 2 deserves some sort of award for most worthless usage example in a dictionary.
January 2, 2012, 6:48 pmMJW says:
More South Park spelling bee:
MAYOR: Now we have Kyle Broflovski. Here we go. Krocsyldiphithic.
January 2, 2012, 8:17 pmKYLE: What??
MAYOR: Krocsyldiphithic.
KYLE: Definition?
MAYOR: Something which has a krocsyldiph-like quality.
KYLE: Uh, could you use it in a sentence?
MAYOR: Certainly. “Krocsyldiphithic” is a hard word to spell.
Eugene Volokh says:
LarryA: I discuss the structure of the Framing-era newspaper industry in Part I.B.
January 2, 2012, 8:23 pmCarl N. Brown says:
I would be tempted to speculate that over the years the institutional press has had good lawyers to argue freedom of The Press for the elect, rather than freedom of the press for the people.
January 2, 2012, 9:12 pmSteve2 says:
Thanks, Professor. I didn’t realize I could read the actual article through that link.
[EV says: I just updated the post to make this explicit.]
January 2, 2012, 9:34 pmEugene Volokh says:
Carl N. Brown: You’re correct — but, as the article discusses in the later Parts, even despite that courts have overwhelmingly concluded that the freedom of the press is not limited to the institutional press.
January 2, 2012, 9:41 pmPharmamom says:
How does that follow? The constitution doesn’t guarantee everyone the right to rent advertising space or time, or to purchase his own press and paper. The government can’t deny you space or time for media speech; you still have to come up with the means to produce it.
A good way to do this would be to get together with a bunch of like-minded people and pool your resources. Oh, right, that’s what the folks of Citizens United did…
January 2, 2012, 10:10 pmBill Woods says:
Yes. “Freedom of the press belongs to the man who owns one.” — A. J. Liebling
January 2, 2012, 10:41 pmInstapundit » Blog Archive » EUGENE VOLOKH HAS AN ARTICLE OUT ON FREEDOM OF THE PRESS, and notes that the phrase is about the fre… says:
[...] VOLOKH HAS AN ARTICLE OUT ON FREEDOM OF THE PRESS, and notes that the phrase is about the freedom to publish, not freedom for the “institutional Press,” though modern speakers sometimes suggest otherwise. That’s right, of course. I’ve noted [...]
January 3, 2012, 8:24 amMr. Whiskas says:
“Drawing the line is one of the major problems.”
I agree, it seems to me to be a likely intractable problem. Take a group like Citizens United. They seemed to be engaged in producing tracts, films and such, must like a member of the “institutional press.” I can’t think of a more thorny problem than courts trying to hash out which media comes from “institutionalized press” and which does not…
January 3, 2012, 8:35 amRoger says:
(Tongue firmly planted in cheek)
Freedom of the Press only protects the kind of presses in use at the time the Bill of Rights was framed.
January 3, 2012, 9:13 amBob_R says:
This statement will be read by thousands of people. You published it for free. This is a hot button issue precisely because mass communication has never been cheaper. The institutional press is being threatened by inexpensive media. Their political allies are saying the government should be allowed to regulate their competition. They have tried several arguments that have failed. Looks like this one will be pretty easy to refute. (Well, easy for me. The head conspirator seems to have done a good bit of work.)
January 3, 2012, 9:29 amBob_R says:
Again, you posted this for free. It probably took you less than a minute.
January 3, 2012, 9:30 amClaude Hopper says:
I wonder what our nation would look like today if the LA Times had not suppressd the video of Obama speaking at the Khalidi farewell gathering. Maybe the corporate press has too much power.
January 3, 2012, 9:46 amLee Reynolds says:
The left loves to argue by definition, which is fundamentally dishonest.
Constitutional amendments are difficult things, made impossible when the majority of the nation is utterly opposed to the types of amendments the left would like to see made.
So instead of trying to change the constitution, they attempt to fool people into misinterpreting the definition of select words within it. This is why they like to claim that the constitution is a “living document.”
The notion that “freedom of the press” creates a special protected class of individuals whose rights and liberties exceed that of the general public is just another example of this nonsense.
January 3, 2012, 9:57 amStephen Lathrop says:
As long as Volokh’s preferred axis of debate runs from “the people” at one end toward the “institutional press” at the other, his argument will remain frozen in time, and today’s most important free press issues will escape consideration. Volokh plausibly argues an interpretation that at the time of the founding, freedom of the press needed separate enumeration to avoid any interpretation that speech was permitted, but publication could be suppressed. And the publications then contemplated, as Volokh’s article attests, consisted of “opinions” and “sentiments.” Those two words come up again and again in Volokh’s references to the founding era cases, and “news” is mentioned not at all. The differences between opinions and sentiments on the one hand, and news on the other, encompass inescapable differences in conditions between the founding era and our own.
In that context, the “institutional press” is little more than a modern concept transported back into history, where it can serve no function except to raise the illusion that historical actors refused to privilege it. What capabilities did the (nearly non-existent) institutional press then have to give it a place in the publication of supressable opinions and sentiments? Books, pamphlets, and broadsides were the conduits of the time for opinions and sentiments. Their production was the work of craftsmen printers, not of an institutional press. The very idea of a press institution in the form of a newspaper was in its infancy.
Volokh’s article and citations show that he well understands all of that. He should have been more careful in drawing conclusions about what historical figures intended for today’s institutional press. Volokh repeatedly comes close to the historical blunder of anachronism: telling us what the founders would have thought.
At the time of the founding, and for long after, the notion that political challenges to those in power could turn on prompt, general publication of news reports had little if any currency. Before the telegraph, that possibility was simply mooted by the limits of available technology. Does the founding era even offer an example of the suppression of news? Surely it was not a widespread problem, because news itself was not a widespread phenomenon. Publishing it was a business engaged in by very few. The practice of using investigations to develop news awaited invention—and probably extensive cultural changes to accommodate such an idea.
Time passed, and news capabilities—gathering and publishing—developed and thrived. In response, threats to press freedom diversified in ways the founders did not anticipate.
Compare that founding era to today’s experience, in which both government and private parties attempt to suppress news stories. Private parties today file libel suits calculated to expose confidential news sources and punish them—or simply to suppress speech the private parties do not like with the threat of legal complications and expense. One particularly pernicious manifestation of that latter trend comes in the form of so-called SLAPP suits (SLAPP: Strategic Lititgation Against Public Participation). Those are phony libel suits targeting private participation in government deliberations, such as regulatory processes.
Governments themselves use prosecutions of news sources. And in both types of cases, demands for contempt citations of journalists are commonplace. There have been cases where judges denied newspaper libel defendants any defense at all if they would not disclose confidential sources—despite the fact that the truth of the complained-of allegations was not in doubt and could be proved without reference to any material kept confidential.
News is the issue today, and news gathering has become the point at which anti-press pressure is applied. Nobody in politics any longer fears the influence of your opinions and sentiments. Nobody intends to suppress their publication. But your stories about official wrongdoing, scandalous government secrets, and corporate malfeasance? That is a different case entirely. Expensive government efforts are deployed full time to prevent such publications, and to intimidate and punish anyone identified as a source of such stories. Corporations will sue journalists, even if they do not intend to prosecute the case, just for the intimidation value.
News gathering, not opinions and sentiments, is what now needs protection. And for practical reasons news gathering is performed mostly institutionally. That does not mean it has to be. Any individual can act in the role of a news gatherer and publisher. That is why Volokh’s (and the courts’) distinction between individuals and the institutional press is, as a matter of principle, a red herring. It draws the argument’s attention to a question upon which the issue does not turn. And Volokh’s article slights news gathering as a topic, making almost no reference to the modern trends in press suppression, or the thousands of cases they have spawned. That is a serious omission in an article offered as guide to the modern jurisprudence of press freedom—however valuable the article may be as an historical review.
What is needed is a jurisprudence of protection for news gathering—explicitly in support of First Amendment guarantees—operating on the basis of a codified understanding of what conduct is protected. But even the possibility of developing such a jurisprudence has been hampered since the Branzburg case, in which the Supreme Court somewhat ambiguously denied that the First Amendment could create a news gathering privilege of confidentiality in a Federal criminal case. Since Branzburg in 1972, the need has only grown.
If we are to imagine any such jurisprudence, it ought to take cognizance of the Branzburg Court’s objection that there should be no privilege that applies to some citizens, but not to others. The principles developed should apply whether or not the challenged news report is the work of an institution or of an individual.
I have in other threads here proposed that one possible judicial approach would be to distinguish private news gatherers on the same basis that news editors use to assure professionalism from journalists—the principal standard being non-involvement by the journalist in the subject matter. The aim is to reconceive Volokh’s axis, with its dichotomy between individuals and the institutional press. Instead, replace it with a dichotomy defined by distinguishing interested-participant publishing from third-party news gathering—all considered without any regard for whether it is institutions or private persons doing the publishing. In that way, the odious notion of special rights for the few can be avoided, while protection of news gathering can be served.
That by itself would probably prove sufficient to keep the privilege within bounds, and prevent it from unduly disrupting court proceedings. Not many private party publishers actually devote themselves to third-party news gathering, but those that do fully deserve protection equal to that afforded to the largest institutional news organizations. Other publishers who speak as participants and not as observers, whether private parties or institutions, can be adequately protected by their First Amendment guarantees to free speech. Indeed, keeping those speech rights unimpaired will grant even interested-party publishers fully as much protection as Volokh’s arguments would grant to anyone.
Compared to that of the founders, ours is an age more concerned with facts than philosophy. It is inappropriate, and outside the spirit of the First Amendment, to accept a modern jurisprudence that cherishes and protects an antique mode of thought, but exposes to suppression the free discovery and publication of the information that now moves politics. If the barrier to fixing that is resistance to extending rights to some but not to others, then making distinctions on the basis of conduct instead of identity solves the problem. The rights are extended to all equally, but their exercise depends on the individual’s decision to shape his conduct to take advantage of them.
January 3, 2012, 10:11 amTully says:
That’s three questions, but never mind. I’ve been beating this drum for a decade in regards to blogging and “shield law” statutes. Shield laws are inevitably written by and for the institutionalized press, and always try to exclude anyone who isn’t a member of the club. And they always argue that the laws are needed to protect the First Amendment freedom of the press, even as they attempt to define “the press” as only being their own guild members (I use the term sarcastically, not literally) and not “the people.”
The woman in Oregon who lost her case for being covered under Oregon’s shield law lost it because the definition of “the press” in Oregon did not cover internet bloggers. Obviously in Oregon the shield law only covers guild members and not the First Amendment right. When written to cover ONLY the institutional press, such shield laws clearly create a quasi-royalty class with more rights than us “people.”
January 3, 2012, 10:15 amegd says:
Leaving aside for now the ah…indistinct…definition of journalistic professionalism, allow me to pose the following hypothetical.
I, a powerful and influential member of the New York Times reporting pool, decide to report on a phone conversation between a CEO and his shareholders. In order to be able to listen in, I purchase a share of stock in the company.
Am I now involved such that the standard of journalistic immunity attaches? Or does purchasing a share of stock involve me?
Here’s another:
A powerful and influential member of the New York Times reporting pool seeks to publish some papers he obtained from a source. The Government seeks an injunction against the NYT to prohibit publication thereof. The New York Times reports on the lawsuit. Is the NYT sufficiently non-involved to be able to claim the journalistic privilege (and publish detalis about the case), or are they now involved?
January 3, 2012, 10:35 amShelbyC says:
Sounds like your criticism is that EV wrote about a different topic than you wanted him to. You are free to write about the topic of protection for news-gathering in an appropriate forum, aren’t you?
January 3, 2012, 12:11 pmVernon says:
So the First Amendment should apply to articles by Judith Miller (news gathering) but not Paul Krugman (opinion)?
The distinction between news gathering and opinion is not supported by any news channel or newspaper that I know of. All include large amounts of “opinion journalism”, which are often very popular. Even straight news articles/programs are immersed in opinion in the form of analysis, and the editorial decision of what to investigate and/or report is susceptible to political opinions or views. The merger of news gathering and opinion is nothing new, as openly partisan Democratic and Republican newspapers date back at least to the Civil War.
Even if “news gathering” could be separated from “opinion” (which I dispute) I do not agree that “opinion” warrants less protection. There are plenty of governments around the world that restrict publishing unfavorable opinions, and there are plenty of political actors in our system who would do the same if given that power.
January 3, 2012, 12:13 pmStephen Lathrop says:
Vernon, if I was unclear about continued protection for opinion, let me clear that up. Of course it needs full protection, and routinely gets it. Which is part of my point. Modern (and U.S. historical) legal practice protects opinion comprehensively, and news gathering very little.
January 3, 2012, 12:56 pmStephen Lathrop says:
Sure, because what I wrote is opinion, and extensively protected. Had it been news that I gathered using confidential sources that freedom would be very much in doubt—and it would have been in doubt even if I subsequently proved by other means any allegations I got from an informant. Any party who did not like what I published would be free to sue me for libel, demand disclosure of my sources, and demand that the judge strike my defense of (proved) truth if I would not disclose.
I disagree that Volokh was writing on a different topic. I think his intention was clearly to elucidate something about the way the First Amendment works today. In my view, he left out the most important parts.
January 3, 2012, 1:05 pmlonetown says:
In the 1970′s the press positioned themselves as the counterweight to the government and thus obviously deserving of special consideration in the Constitution.
good times, good times.
January 3, 2012, 1:12 pmShelbyC says:
To be clear, you are commenting about whether first amendment freedom of the press should include protections for news-gathering, and EV is writing about whether or not first amendment freedom of the press protections, whether or not they include news-gathering or not, should apply to everybody equally or have heightened protection for the institutional media, correct?
January 3, 2012, 1:42 pmStephen Lathrop says:
I don’t think your statement does either of us justice. It’s hard to know how to address it. Can you say what you mean in other words?
However, I do hope you noticed there is no disagreement between Professor Volokh and me on the question of applying press protections equally for everyone. My criticism of his approach is that it is structured to leave the impression that denying news gathering protection to the institutional media is an unavoidable consequence of applying press freedoms equally. I have tried to show why that need not be assumed.
January 3, 2012, 3:15 pmStephen Lathrop says:
In my opinion that would be legitimate press investigation, no matter who did it. Maybe the NYT would handle it that way, but I wonder. I suspect they would prefer to interview the CEO, and, if they felt the need for diversity of opinion, interview some of the shareholders who did listen.
I will leave the prior restraint issue aside, and try to answer as if your scenario could actually happen.
Cases of that sort always make professional journalists uncomfortable. Often, the solution is to assign the story to someone not involved in whatever started the affair, and then handle the problem with unusually perfunctory coverage. Of course, as a practical matter, there is no issue. The NYT is not going to sue itself for libel. The government is going to do what it pleases. And whatever happens, a great many newspapers are going to cover all of it in minute detail, and the government is going to let them do it without interference.
But, if what you are attempting is to bait me into suggesting that I regard the NYT as a professional journalistic organization, and that its reporters are presumptively entitled to a news gatherer’s privilege in confrontations with the government, I take that bait without hesitation. Nothing about that presumption says anything about who else may also be so entitled.
Note also that I have not argued in favor of empowering government censorship, so no standard I advocate has anything to do with what a newspaper, or anyone else, may or may not publish.
January 3, 2012, 3:39 pmKirk Parker says:
An interesting point, but I think you first need to worry about that whole “disinterested” concept–letting the government be the gatekeeper of that seems to me (on admittedly first impression) just as problematic as letting them decide who is and who isn’t a “professional” journalist.
January 3, 2012, 6:00 pmLarryA says:
Thanks. Pretty much what I expected.
January 3, 2012, 6:41 pmLarryA says:
1. So anyone with an opinion is out in the cold? That would be almost all magazines and books, at least. The article we’re discussing, and your response – not protected. Neither the NRA nor the Brady Campaign have any freedom of the press? Sipsey Street Irregulars, who broke the Fast and Furious story can be shut down with impunity? But the mainstream newspapers, who regularly make decisions about what news is fit to print get a press pass to limit what people read and hear because they profess to be “impartial” are protected.
I hope that’s not what you mean.
2. IMHO the philosophy of journalistic “impartiality” has done more to kill newspapers than any other force. In early newspaper history every city had several papers, each with a different viewpoint. You’d have a liberal paper, a conservative paper, a workers paper, and so forth. Every viewpoint got it’s stage.
But if newspapers and reporters are “impartial” and every paper carries the same AP news, you only need one newspaper. And you only get one viewpoint.
3. No one is really impartial. Everyone has an opinion. It can be pro, con, indifferent, or they can even consider the issue unimportant. It’s going to color what they select to write and how they write it. For any issue, “third-party” newsgathering is a myth.
January 3, 2012, 7:04 pmStephen Lathrop says:
LarryA: “I hope that’s not what you mean.”
It’s not what I mean. As I said above. What I mean is protect opinion AND news gathering. I focus especially on news gathering for two reasons: 1) opinion gets top notch protection already, no reason to change it, and 2) news gathering gets next to no protection, and is under continuous heavy attack.
“Impartial” is your word. I did not use it, and would not. Nobody gets to judge whether you are impartial, and nothing would be riding on any such determination if they did.
The question of whether a journalist has an interest in a story is a question of fact, like the question of whether a lawyer has a conflict of interest. An interested participant is not some journalist with an opinion about good policy, it is somebody who plays a role in the news story.
And nothing about what I suggested includes taking freedom of the press away from anyone. Nor does it contemplate increasing government power with regard to the press, the publication of opinion, or any private person’s freedom.
Maybe my response to Professor Volokh was too long. You seem not to have read it.
January 3, 2012, 10:43 pmStephen Lathrop says:
I did not use “disinterested,” only “interested,” and I do not think in this case they are quite antonyms. I avoid “disinterested” because of its connotation of “impartial,” which is a requirement too subjective to be useful. “Interested,” on the other hand, means “participant,” at least the way I am using it. Not a state of mind, but a matter of fact.
And why would the government be the gatekeeper? I suggested no such thing, and would oppose it. The issue is only going to come up in the context of a trial of some sort. Let the jury decide if a defendant has acted as a journalist or a participant in the published story.
And don’t expect it to be a hard distinction to make. Every professional journalist has to keep that boundary in mind every day. Every editor has to use that distinction to keep his coverage within professional bounds. As a practical matter, confusion almost never arises.
January 3, 2012, 11:02 pmKirk Parker says:
The heck it is.
Well, maybe if by “interest” you mean only a formal pecuniary interest, but you can’t possibly be so naive as to that that’s the only sort of distorting influence we need to worry about.
January 3, 2012, 11:13 pmKirk Parker says:
Stephen,
OK, I see I somewhat misunderstood your point, but mine about your naivete still remains. Whether a journalist is a “participant” in a story is a simple “fact”? Get outta here!!! Haven’t you kept up with Orin Kerr’s frequent postings about 4th Amendment controversies–about what is or isn’t a “search” or a “seizure”? What give you the slightest hope that this would be any different?
January 3, 2012, 11:24 pmegd says:
If I recall correctly, the Pentagon Papers was a real case.
It appears then that your solution to the problem of self-reporting will be satisfied by proper and professional exercise of professional standards by journalists. Isn’t it somewhat of a problem for Constitutional rights to turn on the exercise of journalistic standards, which are entirely self-imposed and bear no force of law?
While you’re not assigning constitutional rights on an exclusionary basis, you are certainly assigning rights on an inclusionary basis. Other constitutional rights (with one significant exception) doesn’t require licensing or prior approval to exercise, I’m not sure why the freedom of the press would require such prior approval.
As others have said up-thread, the problem with subjective application of first amendment rights is that ultimately there is an arbiter who decides who qualifies and who does not.
If you’re not suggesting a reduction in 1st amendment protection, but rather an expansion of 1st amendment protection under freedom of the press, I’d be interested in hearing how your proposal links with established first amendment case law.
January 4, 2012, 10:28 amrichard40 says:
I definitely support the press as technology approach. Restricting freedom of the press to just a special class of journalists creates a crony capitalist situation, where some are more equal than others, and give the gov power to restrict ideas by saying who and who is not a real journalist. By my mind, anybody printing something, or publishing anything using electronic media or the internet, is a journalist for that particular publishing act. One of the worste abuses here is where official journalists lobby for journalist source shield laws, that would only apply to their special class, and would not aply to those they do not recognize as journalists. It is basically a form of crony capitalism for “journalists”. Another example is saying that a journalistic corporation can publish political attacks or opinions, but ordinary corporations or groups cannot. Newspapers or network news are corporations just like any others, and should enjoy no special rights.
January 4, 2012, 6:06 pmStephen Lathrop says:
egd, you are mistaken. The Pentagon Papers case will not be repeated, precisely because it focussed attention on the prior restraint issue—which caused the government to lose its case for an injunction in the Supreme Court. The Pentagon Papers were largely published, and without much delay.
I’m a former journalist, not an expert on first amendment case law, so I can’t write you a legal brief. But let me offer you one example I know about personally:
In the 1970s The Times-News, a small daily in Twin Falls, Idaho published some stories based on confidential information that alleged that a local insurance company was unsound, or crooked, or something. I forget the particulars, partly because I worked elsewhere, and was not aware of the events at the time. Anyway, the story itself had the effect of encouraging insurance company insiders to come forward and confirm it—without confidentiality—beyond any reasonable doubt. Nevertheless, the owner of the insurance company sued for libel, and pressed for disclosure of the confidential source. When the reporter would not disclose the source, the judge barred the newspaper’s entire defense, including the defense that the story was true, and entered a judgment of $36 million, notably more than the entire value of the newspaper. That made national news. I believe that judgment was appealed, and about $2 million was paid.
Not long after those events, I found myself trying to do investigative reporting for The Times-News. It was not a great experience. I was told that senior management had acquired a distaste for investigation. And if the subject of any investigation threatened to sue, the editors recoiled, and started limiting the coverage and the resources available to pursue the story.
In one instance, an editor went off the reservation and gave me sufficient rein to complete and publish a story that linked the Idaho governor to the efforts of an entrepreneur who intended an extensive geothermal/agricultural development. That would have devastated one of Idaho’s largest deer herds, by wiping out its wintering grounds.
I showed that the would-be entrepreneur had a history of flagrant fraud that had caused him to be run out of Canada, and that the age he disclosed on his personal history added several years to his true age—something he had to do so he could fit in all his colorful lies, some of which I detailed and disproved. He also had a history of corralling money for outlandish projects that never came to anything. He had suckered the governor, who backed out of his endorsement of the project.
The day before the story ran, the entrepreneur threatened to sue if any story appeared, or even if I continued investigating. He was too late. The story ran the next day on page one—extensively edited to remove much of the account of previous fraud and the evidence supporting it—but the project was cancelled, and the would-be entrepreneur disappeared.
Vindication of the investigation was not sufficient to save my editor from the wrath of his superiors. He promptly moved on to pursue opportunities elsewhere, and I got the word never to try anything like that again. I quite shortly after.
That is not so much a legal case as a short journalistic account of the extensive consequences that a legal attack on news gathering produced. It should give you some insight into why I think the issue is important. Making a big deal out of forcing disclosure of a confidential source chilled news gathering and publishing in that region for years. Arguably, the coverage that story got in other regions of the country showed that it may have chilled news activity in those areas too.
January 4, 2012, 6:21 pmStephen Lathrop says:
What is naive about suggesting that a system that works smoothly in one context might work as well in another? My hope is based on having seen the distinction between news participants and news reporters honored without difficulty in the journalistic community. Why it would be more difficult for the legal community to understand the concepts is not obvious to me.
Because you seem to be taking a thoughtful approach to this thread, I would like to ask you for the source of your concerns. Suppose the notion of a news participant was construed broadly, with the result that only a few non-institutional publishers earned legal consideration as eligible for first amendment press protections extended to news gatherers. What about that would concern you more than the alternative, that none would get such protection?
Conversely, suppose the participant notion was construed narrowly, making more non-institutional publishers eligible. Why would that be worse than none being eligible?
January 4, 2012, 8:27 pm