Originally uploaded at SSRN.


In this piece, however, I pause to push back on the conventional wisdom that the Court actually has refused to view the press as constitutionally special. Contrary to what we have been told, I contend the Supreme Court has indeed recognized the press as constitutionally unique from nonpress speakers. The justices have done so implicitly and often in dicta, but nonetheless they have continually and repeatedly treated the press differently. While rarely acknowledged explicitly, this "Stealth Press Clause" has been hard at work carving out special protections for the press,guiding the Court's analysis and offering valuable insights into how we should view the contributions of the press.

To demonstrate this point, I start by discussing a few Court decisions that were specifically about the press. Next, I examine the underlying logic supporting decisions that apply broadly but focus on the press. I then turn to the distinctive rhetoric the Court has used when it discusses the press. Finally, I look at the important insights these Stealth Press Clause cases give us about the unique constitutional roles of the press. These unique press functions are perhaps the most valuable contribution of the Stealth Press Clause.