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.

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