Originally uploaded at SSRN.

Abstract

Does the First Amendment’s protection of freedom of “the press” simply mean that we all have the right to use mass communication technology to disseminate our speech? Or does it provide constitutional safeguards for a particular group of speakers who function as government watchdogs and citizen surrogates? This question defines the current debate over the Press Clause. The Supreme Court’s Citizens United decision, along with recent work by Michael McConnell and Eugene Volokh, suggests the answer is the former. This article pushes back on that view.

It starts by expanding the scope of the relevant historical evidence. Discussions about the original meaning of the “press” typically focus only on the ratifying generation’s explicit rhetoric. This approach, however, fails to consider valuable evidence about colonial and early-American lived experiences with the printing press. To members of the framing generation, this new evidence reveals, the press was a tool of limited access, available only to certain speakers, controlled by gatekeeper printers, and used primarily for matters of public concern. Early Americans may have spoken of press freedom as open and inclusive, but printing, as they actually knew it, was not. Rather, it played a specific societal role.

Historical evidence is only of true value, moreover, if it is used to address the right question. This article thus shifts the pertinent question from “what” members of the founding generation were protecting — technology or trade — to “why” they sought to protect it. History reveals that they saw the Press Clause as having two functions — an individual, self-expressive function and a structural, government-monitoring function. At the time, a singular notion of the “press” embodied all of these concepts (a technology as well as an expressive and a structural function), leaving no need to distinguish among them. Today, however, that conceptual overlap no longer exists. For a variety of reasons — including advances in communication technologies, expansion of access to these technologies, growing complexity of government, and development of journalistic standards — press functions and press technology are now unique concepts.

Today’s advanced mass communication technologies, buoyed by our modern robust speech jurisprudence, provide individuals with extensive expressive channels. Modern journalistic practices, meanwhile, fill a more dedicated and refined watchdog role. To be sure, some overlap still exists. Broad use of mass communication technology can lead to government scrutiny, and journalism has expressive qualities. But the primary uses of the two have diverged significantly since the late-1700s. An interpretation of the Press Clause that is faithful to the original goals of press freedom should reflect these modern realities.

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