Originally uploaded at SSRN.

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 Supreme Court has never recognized explicitly 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 30-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”? Others have attempted to define the press, but the ubiquitous instinct toward constitutional over-protection has resulted in overly broad definitions that include potentially everyone. These over-inclusive definitions have failed because they attempt to transfer our constitutionally overprotective approach to the Speech Clause to the Press Clause. The net result has been, ironically, fewer constitutional press rights rather than more.

This article attempts 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 through 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 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.