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The Free Press Clause:

Some people have argued that (1) statutes and constitutions should generally not be read in ways that render particular provisions superfluous, and (2) therefore the Free Press Clause should be read as providing special protection for the institutional press, beyond what the Free Speech Clause provides for other speakers.

I generally agree with point (1), but I don't think that point (2) follows. Protection for the "freedom of speech, or of the press" can quite sensibly be understood as ensuring that both speech (spoken words) and press (printed words) are to be equally protected (and perhaps other communication would be protected as well).

Without the Free Press Clause, the First Amendment might have been understood as not covering material that is printed and thus capable of being broadly disseminated. (One can imagine a government official arguing that speech, or even a handwritten letter, is all well and good, but printed material is much more dangerous; in fact, English history had been full of similarly justified restrictions on printing.) Without the Free Speech Clause, the First Amendment might have been understood as only covering material that is printed and thus capable of being broadly disseminated. Reading both clauses as protecting the same context, albeit in both media, doesn't make either provision superfluous.

Indeed, modern discussions of freedom of speech often cast it broadly enough to cover all communication, whatever the medium. But this broad understanding of the provision was likely itself molded by the breadth of the "freedom of speech, or of the press" language. To the extent that even newspaper publication is often described as protected under the Free Speech Clause, that's so precisely because the accompanying Free Press Clause has created a legally culture in which printed speech is as seen as no less protected than other speech.

I should note that, even independently of the above, I don't think the "press" must refer to the press as a business, as opposed to the press as a technology. But in any event, "freedom of speech, or of the press" strikes me as providing equal protection under both clauses, not special protection under one or the other.

KenB (mail):
On what basis would you differentiate? There is no textual clue what greater freedom one has than the other. The difference would have to be made from whole cloth.
9.24.2009 7:37pm
martinned (mail) (www):
@EV: Thanks.

@KenB: There is no textual clue that there are any exceptions to the general rule, and yet the case law covers entire libraries. Maybe the press should be given more latitude when it comes to libel suits, or privacy violations, or copyrights.
9.24.2009 7:40pm
ruuffles (mail) (www):
The way the amendment is written ("Congress shall make no law ...") suggests it applies equally to aliens on non-immigrant visas (as well as illegal immigrants) and US citizens.

The current federal law allows both US citizens and permanent residents to contribute to campaigns, but not other aliens. A curious provision since permanent residents can't vote.

Under an expansive reading, why wouldn't aliens and citizens be treated equally for the purposes of campaign finance? To take it a step further, foreign corporations and US corporations? Think about the Dubai Ports uproar.
9.24.2009 7:40pm
PeteP:
'Press' must be interpreted as 'dissemination of words via non-spoken means', or more broadly, 'dissemintaion of thoughts &ideas &opinions ( to include graphics ) by non-spoken means', or else some mediums, like this blog, would not be protected by either one ( obviously, no one is 'speaking' here, they are TYPING, IE publishing, and yet it is not a business ( as would be limited by your description ).

By the same token, a 'search warrant', IMO , should not be considered to be the piece of paper itself, but rather the authority of issue it notates, the authority and process that led up to it being issued is the actual 'warrant', and the paper is merely a record of that fact of issue.
9.24.2009 7:42pm
martinned (mail) (www):
Re libel suits in my previous comment: Essentially, NY Times v Sullivan does exactly that. The only difference is that the exception to the exception attaches to the status of the plaintiff (politician or other public figure) rather than the status of the defendant (press or not press). The purpose is the same.

BTW, I wouldn't necessarily favour such a reading of the first amendment on policy grounds. It's just that I've always wondered about that freedom of the press clause, the same way that I still don't agree with how Scalia made half the second amendment disappear in Heller. (Maybe I shoud re-read prof. Volokh's article on introductory clauses for that one.)
9.24.2009 7:45pm
Mark N. (www):
Do you have pointers to any particularly good originalist law reviews (or books) on the subject? And is McIntyre v. Ohio Elections Comm'n (1995) the most in-depth Supreme Court analysis of the subject of what constitutes "freedom of the press" (in which, oddly, Thomas and Scalia reached exact opposite conclusions as to whether it includes anonymous speech)?

On the one hand, given some of the early-18th-century disputes over freedom for journalists in England who reported material disliked by the government (e.g. Ch. 4 of this book), it's plausible the framers had in mind heightened protections for "the press" in the sense of journalists. But given the important role of unofficial pamphleteers in both England and the US, it seems implausible that they intended to limit any "freedom of the press" to an official, institutional press. But might it be defensible that it was intended to give a heightened level of protection to journalism in general, broadly defined to include unofficial citizen journalism?

This still leaves the "what is journalism?" definitional problem, of course.
9.24.2009 7:45pm
martinned (mail) (www):
@PeteP: Leaving your remarks about warrants for another time, I'd say that your proposed reading of the press clause is not how it is currently read. All speech, be it verbal or written or printed or in the form of burning flags, is protected as "speech".
9.24.2009 7:47pm
Melancton Smith:
You should, martinned. But I think ignoring the prefatory clause is wrong, too. It doesn't limit the right, but it does spell out at least one reason for the right. To me this means the right includes at least militia-capable weapons if not also self-defense weapons.

Yes Josh Sugarmann, there is indeed an insurrection component to the 2nd Amendment, in the event of a tyrannical government (which I personally don't feel we are in any way close to having, btw).
9.24.2009 7:50pm
FantasiaWHT:
EV - wouldn't the logical corrolary be that because (a) thoughts verbalized (speech) and (b) thoughts written (press) are laid out separately, that (c) thoughts expressed physically (expression, e.g., flag burning) were not intended to be protected or they would have been denoted separately?

If freedom of "speech" is read to include expressive thought, there is no logical reason it wouldn't be read to include written thought, making "of the press" still superfluous.
9.24.2009 7:55pm
PeteP:
Martinned - "All speech, be it verbal or written or printed or in the form of burning flags, is protected as "speech"."

OK - then what is 'the press', in some way that is not encapsulated by the above ?
9.24.2009 8:06pm
volokh fears sidewiki (mail):
If the founding fathers wanted "press" to mean what you want they should have included the definition of press in the Constitution.
9.24.2009 8:14pm
martinned (mail) (www):

OK - then what is 'the press', in some way that is not encapsulated by the above ?

Thank you for playing: That was exactly my original question. The professor attempted to answer it in the original post here, but I'm still intrigued by FantasiaWHT's response...
9.24.2009 8:16pm
J. Aldridge:
The way the amendment is written ("Congress shall make no law ...") suggests it applies equally to aliens on non-immigrant visas (as well as illegal immigrants) and US citizens.

It was never meant to apply to anyone, only to prove Congress had no such power over speech or the press under the original constitution.
9.24.2009 8:22pm
karrde (mail) (www):
[sarcasm]
Martinned, isn't it obvious? The "press" refers to manually-operated, movable-type printing presses used for city-wide newspapers, pamphlets, and other such printing used during the time period 1765-1801.

It means nothing more nor less.
[/sarcasm]

At least, many arguments involving Amendment #2 are explicated in the same way.

IIRC, the general argument is that while prefatory clauses help explain (some of) the reason(s) for the right, they don't necessarily limit the application of the right.

If Amendment #1 contained a prefatory clause ("Regular petitioning of Government for the Redress of Grievance being necessary to the life of the Citizen in a Free State...", would such a reading keep Amendment #1 from being applied to protect flag-burning? Penthouse? Publications about government which aren't directly pursuing a Redress of Grievance-style action? Truthful news reporting that someone might deem slanderous (or injurious to individual reputation)?

Or would it be narrowly limited to protecting protest marches and complaints about policy?
9.24.2009 8:31pm
Bob_R (mail):
So let me get this right. There are people who will argue that the Washington Post is immune from a libel suit for calling O'Keefe and Giles racists (without a smidgen of supporting evidence except the color of their skin) because the WaPo is a huge greedy corporation, while O'Keefe and Giles are vulnerable because they only had a budget of a few thousand bucks to bring down a corrupt quasi-governmental organization? Really? REALLY? (to coin a phrase)
9.24.2009 8:34pm
martinned (mail) (www):

If Amendment #1 contained a prefatory clause ("Regular petitioning of Government for the Redress of Grievance being necessary to the life of the Citizen in a Free State...", would such a reading keep Amendment #1 from being applied to protect flag-burning? Penthouse? Publications about government which aren't directly pursuing a Redress of Grievance-style action? Truthful news reporting that someone might deem slanderous (or injurious to individual reputation)?

I'd be OK with such a reading, although I'd also suggest a constitutional amendment in that situation. [OT] As for the 2nd, I'd protect militia-weapons there, with high scrutiny for laws that ban types of weapon but lower scrutiny for laws that regulate how these weapons are to be stored and used. At the same time, general self-defence, including the right to own/carry a weapon for self-defence, seems like a classic example of something protected by the 9th amendment.

[/OT]
9.24.2009 8:44pm
karrde (mail) (www):
I forgot to mention:

We may think that "speech" and "press" are and always have been synonymous, but that may be an accident of historical perspective.

There was much Freedom of Speech in British North America in the 1760's, but Freedom of the Press was curtailed by the Stamp Act.

Getting an official tax stamp must have been a little hard for publications railing against the abusive policies of Parliament towards the Colonies.

On a nearly-unrelated note, the Colonials also saw the practice of quartering soldiers in the homes of private citizens in Boston, which led to several problems. (If the soldiers pilfered items from the house, or harassed young women of the family, it was very hard for the behavior to be curtailed or the harm redressed. It was also very hard for anyone in the house to meet with other freedom-minded Colonists if there was a detachment of infantry living on the property. Any or all of the soldiers could act as spies for the Crown.) Hence Amendment #3, which hasn't been needed or used since 1791.

Back to the main topic: I believe that the modern use of Speech and Press as synonyms is a result of the fact that they were protected together in Amendment #1 to the Constitution. They are protected the same way, thus the two categories have blended over time in our minds. But direct action for an audience (Speech in all its forms) and communication stored so that it can be copied and dispersed (the Press in its multitude of forms) can be considered distinct.
9.24.2009 8:50pm
rc:
I am very skeptical that the first amendment should encompass four freedoms possessed by each and every American, plus one more right for 'the press': a distinct class, or a dated act limited to ink and paper.

When we think of the freedom of speech, we imagine the Norman Rockwell painting- one humble man standing up in a townhall meeting. When we think of assembly, we think of handwritten signs taped to sticks. When we think of redress, we think of letters to our congressmen.

So why, when we think of the press, must we think of laminated press passes, syndicated bylines, and offices with big glass doors?
9.24.2009 9:20pm
martinned (mail) (www):

So why, when we think of the press, must we think of laminated press passes, syndicated bylines, and offices with big glass doors?

As noted above and, I think, recently in a post about some Texas statute, that's not necessarily the case. The Press could simply be defined as one-to-many communication that is not an assembly.
9.24.2009 9:34pm
rc:
And is 'press,' or more specifically, 'THE press,' significantly different than speech or assembly?

Well, to compare speech and assembly, for example, they are different. So I can see how they are mentioned separately, yet still as part of the same amendment. So speeching and assemblying are my personal and protected rights.

And similarly, I also have a right to 'pressing.' Whatever the freedom of the press is, I have a right to it. I acknowledge that speeching and pressing may be somewhat different, but they're thematically the same. And mine.

After all, no one argues that I can't assemble because I'm not a professional assembler.
9.24.2009 9:51pm
traveler496:
FantasiaWHT,

I too found myself wondering how flag-burning could possibly be considered protected consistent with Eugene's point 1. But I think his referenced paper tries to answer this.

If I understand its position after a quick look, freedom of the press meant freedom to publish, which in turn included public displays; also, in this context, symbolic and verbal expression were considered equivalent.

The paper left wiggle room at the end as to whether any particular act of symbolic expression might have been excepted if the Founders had thought about it hard; but it does take the position that flag burning falls into a class of behavior that is generally protected (protectable? maybe that distinction is important to a lawyer) by the First Amendment.
9.24.2009 10:01pm
John (mail):
I believe the actual wording is "freedom of speech, or of the press, or of naked dancing."
9.24.2009 10:58pm
rc:
John,

with 'naked dancing' to be interpreted as, 'by hot chicks only' I mean, if it's mentioned in addition to speech, the let's not render the dancing clause superlative. Clearly, naked dancing (hot chicks only!) is a protected class above and beyond any other possible form of expression.
9.24.2009 11:46pm
subpatre (mail):
rc writes: "So speeching and assemblying are my personal and protected rights."

'Speeching' is not the correct form; the word you were looking for is 'speechifying', an old and honorable term for bloviation.


rc later writes of : ". . . naked dancing . . ."

Reflect for one moment on the power of the legislative body, of equality under the law, and you will immediately realize the Founder's great and superlative wisdom in enumerating those rights —and only those rights— that they did.
9.25.2009 1:31am
David Schwartz (mail):
The argument misses that it is not the way the words are read that renders the phrase superfluous but simply changing technology. Both the notions of "speech" and of "the press" have changed since the constitution was written, such that the latter phrase is *now* superfluous. It was not when the Constitution was written, since most expression could be separated into "speech" or "the press".

As the world changes, to what the same concept refers can change. This can leave concepts that originally had distinct referents with overlapping or empty referents. That does not mean the concepts have changed, and it would be error to assume that overlapping or empty referents *now* means our understanding of the concepts must change.

As a silly example, consider if there was a freedom to own particular types of pets that included a species that is now extinct. We wouldn't have to find something else for that entry to refer to, would we?

Freedom of "speech" and "the press" just demonstrates the two categories of expression that the framers felt were worth mentioning and different enough to show that the scope intended was broad. "Speech", meaning just a guy speaking his mind. "The press", meaning organized commercial communication.

They felt no need to list every possible covered freedom, as they were simply pointing out powers (the most important ones, but their judgment at the time) that they never gave.
9.25.2009 1:39am
Dennis Nicholls (mail):
Personally I always thought "the press" should simply be a synonym for "journalism". Several of the founders were what we would nowadays call journalists and I believe they had this in mind. Journalism encompasses both investigating and reporting on the news, and it's the former that typically gets overlooked in discussion on the scope of the 1st Amd. Journalists may have the freedom to poke their collective noses into the government's business.
9.25.2009 2:55am
David Schwartz (mail):
That's a good point. But it only matters because we've totally given up on giving the amendments their original meaning. Journalists should be free to poke their collective noses into the government's business because the Constitution does not give the government any power to stop them. In an ideal world, whether the framers happened to have indirectly suggested this particular power they did not give the government should not matter.
9.25.2009 3:43am
Jon Roland (mail) (www):
The conflation of "speech" (production of messages) and "press" (dissemination of messages) is largely the result of distortion of jurisprudence from many key early precedents cast in terms of "speech" that were really about "press" if they had been properly framed. The result has been for too many litigants to cast all kinds of things as "speech" to take advantage of those precedents, which illustrates one of the perversities of stare decisis.

This also illustrates the phenomenon of "the rich get richer" discussed in Evolving Complex Networks in Constitutional Republics.

This kind of distortion is also seen in the ways that some try to build on the Petition Clause, although there are few precedents on it, to claim a right not just not to be penalized or impeded from petitioning, but the right to get redress (or answers). Examples of this line of argument are

* John Wolfgram, How the Judiciary Stole the Right of Petition, 31 U. West L.A. L. Rev. (Summer 2000)

* USDC Case # 04CV01211
9.25.2009 9:48am
DPW:
The discussion of the superfluousness of a single phrase of the the 1st amendment ignores the argument that the first amendment itself is superfluous. Many founders argued that the Bill of Rights was superfluous since the Constitution was a limit on government power. Since the Constitution did not give government the power to regulate speech/press, it was already a right held by the people. This would make freedom of speech and press both superfluous.
9.25.2009 10:06am
martinned (mail) (www):
@DPW: I don't think that is right. I don't even think that was right at the time of founding.

Even a narrow reading of the Commerce Clause would allow the Feds to regulate at least some aspects of the newspaper business.

The taxing power could include a stamp duty on newspapers.

The Federal power over the mail is used even now to give them jurisdiction over all sorts of things. (Mail fraud, mailing obscenity, etc.)

And what's to stop the Feds from protecting/promoting only the "useful" arts except the first amendment?

Even ignoring Congress's power over the armed forces and Washington DC, the legislative powers allow for all sorts of mischief against speech, even on a narrow reading.
9.25.2009 11:09am
Jon Roland (mail) (www):
martinned:

Even a narrow reading of the Commerce Clause would allow the Feds to regulate at least some aspects of the newspaper business.

The taxing power could include a stamp duty on newspapers.

One of the main purposes of making rights explicit, rather than just as omissions from delegated powers, is to make clear the exceptions to the class of properly taxable and regulatable objects. What was originally understood by the term "right" was non-taxability and non-regulatability, except perhaps as insignificant side-effects of exercising a power on other things.

The Founders didn't think in terms of "undue burden" as such, but the notion is implicit in what they meant by "right".
9.25.2009 11:19am
DPW:
I'm not saying that I believe that the Bill of Rights is superfluous. I'm just pointing out that at the time of ratification, some people made that argument.

I guess the point I was trying to make was that you can't optimize all the superfluous parts out of a law/constitution. Not everyone will agree on whether a particular item is superfluous or not. Some people may view speech and press as the same making press superfluous. Some people may view a need to explicitly state both speech and press.

The fact that you can argue that press is superfluous doesn't mean that is something different from speech.
9.25.2009 12:29pm
DennisN (mail):
So how, under this argument, does The Press justify the right to conceal sources, indeed to conceal criminal and enemy sources, under 1st A protection?
9.25.2009 12:42pm
David Schwartz (mail):
DennisN: An inability to conceal sources would burden their speech by inhibiting their ability to gather the information needed to speak about things. A freedom to engage in speech of a particular type must necessarily include they freedom to do anything that is necessary to speak in that way.
9.25.2009 1:24pm
Ryan Waxx (mail):
The press's inability to torture potential sources to extract information undoubtedly burdens the press's speech by inhibiting their ability to gather the information needed to speak about things.

The question is what amount of illegal activity should be tolerated merely because a person is a member of a media corporation... and weather ordinary citizens doing the same thing for the same reasons should be exempt like the employee would be.
9.25.2009 3:53pm
Jon Roland (mail) (www):
DennisN:

So how, under this argument, does The Press justify the right to conceal sources, indeed to conceal criminal and enemy sources, under 1st A protection?

There is a general presumption, from ancient times, that a right (against action by government), to be a right, had to be exercisable anonymously, barring a strong showing to the contrary, beyond preponderance, on the general principle that if one had to disclose the exercise, one could be targeted for suppression. That principle to apply to all rights, not just those mentioned in the First Amendment.

This survives today in discovery, where the deponent may challenge a question, and argue that the answer is not needed for the court to render a just decision, and would tend to endanger the deponent in some way.
9.25.2009 4:32pm
Jon Roland (mail) (www):
It should also be clear that a shield law for journalists cannot be coherently confined to professionals affiliated with large media organizations. That would violate equal protection. We are all journalists now.
9.25.2009 4:34pm
ArthurKirkland:

It should also be clear that a shield law for journalists cannot be coherently confined to professionals affiliated with large media organizations. That would violate equal protection. We are all journalists now.


How does this affect the privilege claimed by clergy (such as Sen. Coburn)?
9.25.2009 6:23pm
Jon Roland (mail) (www):
ArthurKirkland:

How does this affect the privilege claimed by clergy (such as Sen. Coburn)?

Anyone can be a clergyman as well. There is no professional license.

As it happens, the Constitution Society is a church, aka the Constitutionalist Church, or The Church of Constitutionalism, and I am its chief minister.

However, if you want to confess a crime to me, be aware that the duties required by the civil religion are militia, and I would just arrest you on the spot. :)
9.25.2009 6:55pm

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