In her important new book, The First Amendment Bubble, Professor Amy Gajda exposes the many dangers of this all-encompassing attitude about constitutional rights for the press. Sure, there may have been a time when the news media could demand- and the courts and public would grant near immunity for their work, making free press absolutism relatively costless. Yet Gajda provides example after example demonstrating that the courts no longer give the media a free pass. And as the public and the courts' opinions about the press change, Gajda warns, the news media's thinking about their legal protections must change as well. In place of free press absolutism, Gajda says, journalists must make "hard choices," specifically about "the ways that they define themselves and their craft."
In this Essay, I go a step further and submit that even in the "best of times" with the most press-friendly courts, the news media need not, and should not, espouse an "all for one and one for all" mantra when it comes to press freedoms. By adopting this overly zealous attitude, the press has hurt its own cause both legally, by weakening its argument for more expansive press rights, and also reputationally, by aligning themselves with disreputable speakers. This stubborn refusal to separate press from non-press speakers, moreover, leads to an underemphasis of the public benefits of the press's work and an overemphasis of its harms. Adopting the absolute principle that all speakers are the same, therefore, threatens to limit the public's access to important information by failing to recognize that journalism, as Gajda describes it, "is special, important, and basically good."
Sonja R. West,
The Problem with Free Press Absolutism
, 50 New Eng. L. Rev. 191
Available at: http://digitalcommons.law.uga.edu/fac_artchop/1075