Apr 27, 2011

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Awakening the Press Clause

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Should the Press receive extra constitutional protection? Who is the press? Why is this right treated differently from all other rights?

Interesting piece in the UCLA Law Review by Sonja West titled Awakening the Press Clause. Here is the abstract:

The Free Press Clause enjoys less practical significance than almost any other constitutional provision. While recognizing the structural and expressive importance of a free press, the U.S. Supreme Court does not explicitly recognize any right or protection as emanating solely from the Press Clause. Recently in the Court’s Citizens United decision, Justices Stevens and Scalia reignited the thirty-year- old debate over whether the Press Clause has any function separate from the Speech Clause.

The primary roadblock to recognizing independent meaning in the Press Clause is the definitional problem—who or what is the “press” in the First Amendment? Others have attempted to define the press, but the ubiquitous instinct toward constitutional overprotection tends to invite overly broad definitions that include potentially everyone. Proponents of these overinclusive definitions attempt to transfer our constitutionally overprotective approach from the Speech Clause to the Press Clause. The net result has been, ironically, fewer constitutional press rights rather than more.

This Article endeavors to break that cycle by arguing that the way to give long-overdue meaning to this important piece of constitutional text is to embrace press exceptionalism and a narrow definition of the press. By adopting an overly protective approach to the Press Clause, we have been sucked into a constitutional feedback loop: An expansive definition of the press means virtually complete overlap between press and speech and thus no meaningful way to interpret the Press Clause. Awakening the Press Clause, therefore, requires embracing a definition of the press that is sufficiently narrow. This Article furthermore submits that the definitional problem is manageable because line-drawing perfectionism is not required thanks to the fallback protections of the Speech Clause.

Not sure that I agree with her analysis. I consider myself (and my blog) part of the media. I don’t think she would.

For the Press Clause to mean somethingindependent of the Speech Clause, it necessarily cannot apply to everyone.If every individual is also a journalist or every message is also news, then there is no need for two distinct clauses.

Further, distinguishing corporations and the press is quite difficult, something even Adam Liptak conceded. The New York Times (press) is a massive corporation.

Anyway, I’m all in favor of reviving neglected constitutional clauses.

The Petition Clause (which Justice Kennedy mentioned during oral arguments in Doe v. Reed, but did not make it into the final opinion) is also due for an awakening.

JUSTICE KENNEDY: This case will likely be controlled by our First Amendment precedents, because that’s the most fully developed.
Did you look at the Petition Clause at all? In the early days of the republic, the petitions were the way in which you communicate with your legislator.
GENERAL McKENNA: Yes.
JUSTICE KENNEDY: And I tried to look it up. I have a recollection, but I’m not sure, that those petitions were sometimes put in the congressional record. Did you look at the history of the Petition Clause?

Hell, let’s give some attention to the Third Amendment. It’s due!

Update: For an interesting discussion of the Press Clause, see Scott Gant’s Book, We’re all Journalists now, particular the portion about how Supreme Court issues Press Credentials. It may surprise you that Lyle Denniston obtained his credentials not through SCOTUSBlog but through an affiliation with WBUR, Boston NPR Station. Hrmm..

H/T F1@1F from beyond the blogosphere

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