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Publication Date

2014

Abstract

As we reflect on the 50th anniversary of New York Times Co. v. Sullivan, there will likely be many tributes to Sullivan as one of the Supreme Court's most significant press cases. Yet Sullivan was not really a "press" case. The Supreme Court, in its opinion, granted all speakers greater protection against defamation liability regardless of whether they were a member of the press. Sullivan is not the only famous so-called "press" case that was not just about the press. Several more "not-just-the-press" victories followed in Sullivan's wake. New York Times Co. v. United States (the "Pentagon Papers case"), for example, put a "heavy burden" on the government's ability to place a prior restraint on anyone's speech, not just that of the press. Richmond Newspapers, Inc. v. Virginia, similarly, declared a right of access for everyone, not just the press, to attend criminal trials. The press, moreover, has shared not only its victories with the public but also its defeats. The Supreme Court ruled, for example, that neither the press nor the public could gain access to government jails. Neither the press nor the public, the Court told us, can break promises of confidentiality without liability.

When it comes to the cases that most affect the press, the Court seems to be taking a one-for-all-and-all-for-one stance. The reasons for this approach are varied. One suggestion is that the Court is adopting a reading of the Press Clause that protects the technology of mass communication and not particular speakers. Another sees it as in keeping with a view of the Press Clause that simply protects an individual right for everyone-not just a select group-to publish his or her speech. A third view is that it is a practical necessity to lump all speakers together in order to avoid a messy definitional problem of who does and who does not receive certain rights or protections. I address all of these arguments in other places.

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