Originally uploaded in SSRN.

Abstract

Thanks to advances in mass communication technology, it is now easier and cheaper for all of us to share information with each other. This new ability allows us to act in ways that often seem “press-like.” We might, for example, tweet a warning to our friends about a traffic jam or blog about an upcoming election. Armed with nothing more than a smart phone or a laptop, each of us can share information about matters of public interest to a potentially broad audience in a timely manner — thus engaging in the very activities that were once considered the exclusive province of the press. Has modern technology, therefore, made us all “the press”?

The First Amendment protects “the freedom … of the press.” Many thoughtful legal observers have debated what that text means, how it might function differently from the freedom of speech, and whether it is possible to develop enforceable standards. In a prior article, I made the case that defining “the press” was both necessary and achievable. This article elaborates on that work in significant ways. I begin with the premise of press exceptionalism — that there naturally exists a subset of speakers who fulfill a distinctive role in our democracy. This limited group of speakers shares common attributes, most notably a proven devotion of time, resources and expertise to the tasks of informing the public on newsworthy matters and serving as a check on power. The challenge is identifying the members of this group and distinguishing them from “occasional public commentators” who at times use their speech rights in similar ways.

To be sure, it is no easy task to separate these two categories of speakers in the age of the Internet, blogging, smart phones and social media. Yet even as these technological advances blur the line between the press and everyone else, they also help to focus our analysis on the core constitutional characteristics that differentiate the press from other sorts of speakers. Such a purposive analysis points the way toward identifying the subgroup of communicators who, if empowered with rights beyond those granted by the Speech Clause, will most often and most effectively use those rights to benefit society as a whole. The goal of this article, therefore, is to offer a workable framework in our search for “the press” for First Amendment purposes in the Internet age.

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