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The First Amendment in the Trump Era$

Timothy Zick

Print publication date: 2019

Print ISBN-13: 9780190073992

Published to Oxford Scholarship Online: October 2019

DOI: 10.1093/oso/9780190073992.001.0001

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A Free and Independent Press

A Free and Independent Press

Chapter:
(p.1) 1 A Free and Independent Press
Source:
The First Amendment in the Trump Era
Author(s):

Timothy Zick

Publisher:
Oxford University Press
DOI:10.1093/oso/9780190073992.003.0001

Abstract and Keywords

This chapter discusses the fragility and necessity of a free and independent press. It places the Press Clause of the First Amendment in a historical and constitutional perspective, and considers both the core functions and the occasional excesses of the institutional press. President Trump is not the first chief executive to attack and challenge the institutional press. However, his attacks have been uniquely pervasive and public. The president’s “war” on the press has raised serious questions about the prospect for preserving a free and independent press. The chapter argues that despite its excesses, the institutional press is both necessary to a functioning democracy and, for a number of reasons, precariously positioned to fail.

Keywords:   free press, NYT v. Sullivan, President Trump, sedition, First Amendment, Press Clause, institutional press

We are aware that the press has, on occasion, grossly abused the freedom it is given by the Constitution. All must deplore such excesses. In an ideal world, the responsibility of the press would match the freedom and public trust given it. But from the earliest days of our history, this free society, dependent as it is for its survival upon a vigorous free press, has tolerated some abuse.1

One of the most important First Amendment lessons of the Trump Era relates to the fragility and necessity of a free and independent press. For a number of reasons, the Trump Era is a uniquely precarious time for the institutional press. Even before Trump’s election, press independence and freedom rested on far shakier constitutional and legal foundations than most Americans—including many journalists—likely realized. The president’s self-proclaimed “war” on the institutional press, which has included his frequent charge that the press is “the enemy of the American people,” has threatened to do lasting damage to press freedoms. Evidence suggests that the president may be winning his “war.” A recent Gallup poll indicates that nearly half of Republicans now view the press as “the enemy of the American people.”

Long before Donald Trump became a candidate for the presidency, digitization of content, diminished revenues, unfavorable market conditions, loss of public support, and other forces were already plaguing the institutional press. Trump has accelerated and exacerbated the media’s various challenges. As a candidate and as president, Trump has waged a constant, public, and vitriolic war against the press.2 He has hurled insults at individual reporters and journalists, referring to them as “fake,” “horrible,” and “disgusting.” As mentioned, President Trump has frequently referred to the institutional press (or some of them, at least) as “the enemy of the American people.” He has suggested jailing, punishing, or otherwise retaliating against (p.2) specific reporters and media outlets. The White House has denied some reporters access to official events based on the critical nature of their reporting. The president has threatened to use (indeed may have already used) the power of his office to punish or retaliate against media owners and outlets, through such means as higher postal rates and antitrust policies. He has repeatedly vowed to change, or look into changing, the rules governing defamation of public officials like himself—with the intention of making it easier for officials like presidents to sue their press and other critics. Finally, as this book is going to press, the Trump administration indicted Julian Assange, the WikiLeaks founder, under the Espionage Act for publishing diplomatic cables and other secret information. This action may have significant implications for the institutional press, which likewise publishes leaked confidential and secret information.

Along with the many factors already affecting the functioning of the press, relentless attacks by a uniquely vocal and media-constant president have generated serious concerns about the future of the institutional press. As two free press scholars recently observed, “Contrary to widespread belief, our concern should not be that Trump might be taking the first step toward crippling the power of the free press, but rather that he might be taking the final step in a process that has long been underway.”3

We live in a globally uncertain time for press freedoms. In the past few years, record numbers of reporters have been killed—many outside war zones, where this danger has always been present. In nations across the world—from Poland, to Brazil, to Hungary, to Saudi Arabia—governments have commandeered, restricted, or sought to silence critical press organs and individual reporters. What is happening in the United States, which has long been considered a beacon of press freedom and independence, has worldwide implications. Autocratic leaders, taking their cue from the American president, have railed against the “fake news” and taken steps to censor the press. Meanwhile, in the United States, the war on the press raises critical questions about the viability and health of American democracy itself.

The President’s “War” on the Press

As indicated, both as a candidate and through the first term of his presidency, Trump has been a relentless critic of both the institutional press and individual reporters. Of course, presidents have always complained (p.3) about negative press coverage. A few, including Franklin Roosevelt, John F. Kennedy, and Richard Nixon, have gone further and retaliated or threatened to retaliate against press critics. Americans only found out about these actions long after they were committed. In contrast, the current president takes great pride in publicly attacking and retaliating against the press. He regularly brags about these actions in tweets and at campaign-style rallies. In contrast to President Trump, no former president publicly declared “war” on the press or repeatedly referred to the press as “the enemy of the American people.”

In these respects, the character and extent of President Trump’s declared “war” on the press are indeed historically unique. Owing to significant concerns about press independence and freedom, PEN America, an association of writers and other literary and media professionals, recently filed a First Amendment lawsuit against President Trump to enjoin his press war.4 The allegations in the complaint provide a chilling summary of the extent to which the president has thus far sought to undermine press independence and restrict press freedoms.

PEN’s legal complaint alleges that President Trump has “violated the First Amendment, and his oath to uphold the Constitution, through directives to administration officials to take retaliatory actions and credible public threats to use his government powers against those who report the news in ways he does not welcome.”5 The complaint notes that from the announcement of his candidacy through his second year in office, the president has sent more than 1,300 critical, insulting, or threatening tweets about the media. Although they may chill reporting and inhibit press freedoms, the president’s tweets are not the basis for the lawsuit. Rather, the complaint alleges that the president has taken the following retaliatory actions:

  • “suspending the White House press credentials of reporters who the President believes failed to show him sufficient ‘respect’;

  • revoking and threatening to revoke security clearances from former government officials who have engaged in public commentary, including on CNN and NBC, because they expressed criticism of the current Administration;

  • issuing an executive order to raise postal rates to punish online retailer Amazon.com because Jeff Bezos, its chief shareholder and CEO, owns the Washington Post, whose coverage of his Administration the President finds objectionable;

  • (p.4) directing the Department of Justice to challenge a vertical merger between Time Warner and AT&T because of his antagonism to Time Warner subsidiary CNN and its news coverage of his Administration; and

  • threatening to revoke NBC’s and other television stations’ broadcast licenses in retaliation for coverage the President dislikes.”6

The First Amendment allows the president to criticize the press, including on the basis of the content of its coverage. However, as the PEN complaint observes, “Although the President is free to criticize the press, he cannot use the power and authority of the United States government to punish and stifle it.”7

This is the distinction between government-as-speaker and government-as-regulator discussed in this book’s introduction. The distinction cuts to the very core of the First Amendment’s protection of a free and independent press. It is patently clear that official retaliation against the press violates the First Amendment. Under Supreme Court precedents, it is also clear that the press and other speakers have wide latitude to publish criticism of the actions of government officials.8 One critically important question we must face during the Trump Era is whether the core is solid enough to withstand the conditions under which the modern press operates.

Constitutional Foundations of a Free and Independent Press

The media and institutional press face distinctive challenges during the Trump Era. Those challenges are occurring against a backdrop concerning press rights and freedoms that long predates the election of the current president. To better understand the press’s current situation, it is first necessary to consider some important background information concerning the nature and extent of the protection afforded to “the press” under the U.S. Constitution.

The examination reveals a far narrower conception of press rights than one encounters in current debates about the First Amendment’s protection of the media. In particular, it casts doubt on conventional wisdom that the First Amendment expressly protects the institutional press and grants it broad, special constitutional rights. The reality is that much of what counts (p.5) as press “freedom” is more a function of official grace than constitutional right. And as the Trump presidency shows, official grace can be narrowed or even eliminated depending on who is in charge of providing it.

In political debate and commentary, Americans are fond of pointing to the Constitution’s words to support their views. So let’s start with the text of the First Amendment. Defenders of “the press” may take some comfort in the fact that the First Amendment explicitly provides that the government cannot abridge “the freedom of the press.”

However, as discussed later in the chapter, the Press Clause has not been interpreted as referring to the corporate media or bestowing any special rights on the institutional press. The Press Clause protects individual rights, and those rights are generally coextensive with the rights enjoyed by members of the public. Indeed, as one commentator has observed, “as a matter of positive law, the Press Clause actually plays a rather minor role in protecting the freedom of the press.”9

In general, the Press Clause has not been interpreted as the special province of the institutional media or professional journalists. Rather, the Supreme Court has interpreted the Press Clause as granting protection to the people to gather, publish, and distribute information.10 Constitutionally speaking, then, cable news companies, newspapers, bloggers, social media posters, and lonely pamphleteers are all “the press.” As one prominent First Amendment scholar has described this interpretation, the “press” is a technology and not an industry.11 As we will see, this populist conception of “the press” affords the institutional press some important protections. However, those protections have little to do with the Press Clause itself.

From a Founding Era perspective, the “technology” interpretation makes sense. In the eighteenth century, media organizations and professional journalists did not yet exist. Although the records relating to the adoption of the First Amendment are sparse, the Founders likely viewed the publication and distribution of the Federalist Papers, which argued in favor of adoption of the proposed Constitution, as part of the American free speech and press tradition.

From the Supreme Court’s initial consideration of the Press Clause, its decisions adopted this broader meaning of “press.” For example, decisions handed down in the 1930s and 1940s treated the claims of pamphleteers, leafleteers, newspaper publishers, book publishers, and others as raising free speech and free press concerns.12

(p.6) The Court likely found this broad interpretation attractive for a number of reasons. The Founders themselves frequently used “freedom of the press” and “freedom of speech” interchangeably, leading some scholars to conclude that the two rights effectively overlapped with one another.13 Further, interpreting the Press Clause as an individual right belonging to all the people allowed the Court to avoid difficult line-drawing questions regarding who or what qualified as “the press.”14 Singling out a special set of persons or organizations would have placed the government in the position of defining which publishers were considered worthy of protection under the Press Clause. This exercise would have been in tension with the First Amendment’s rejection of the practice of press licensure.15

To be sure, not everyone agrees with this understanding of freedom of the press. Justice Potter Stewart maintained that the Press Clause protected certain institutional rights that were related to important structural functions. He argued that while the Free Speech Clause protected an individual right of expression, the Press Clause protected the institutional rights of a “Fourth Estate.”16 Justice Stewart’s interpretation had some support from some prominent early First Amendment scholars.17 More recently, scholars have advocated an interpretation of the Press Clause that differentiates it from the Free Speech Clause, including in some cases recognition of an institutional component.18 However, the Supreme Court has not shown any inclination to adopt these institutional interpretations. Indeed, the Court has not shown any particular interest at all in the Press Clause, having decided no major press cases in the last several decades.

Thus, in general, the Press Clause has been treated as interchangeable with the Free Speech Clause.19 It is “complementary to and a natural extension of Speech Clause liberty.”20 More generally, freedom of the press is part of a system of “freedom of expression” that includes other First Amendment rights—speech, assembly, and petition.21 In sum, the actual status and scope of the Press Clause is significantly at odds with confident claims that freedom of the press is secure owing to its explicit textual recognition.

First Amendment “Press” Rights

The Supreme Court has not entirely ignored the press. As discussed further later in this chapter, its decisions have frequently touted a number of virtues associated with a free and independent press. However, as noted, (p.7) the Court has never articulated any distinctive doctrines or rights that apply specifically to the institutional press. In general, the institutional press—professional journalists and the corporate media—have no greater First Amendment rights than those enjoyed by other “speakers” under the Free Speech Clause.22

The rights typically associated with the Press Clause include freedom from prior restraints on publication—orders and injunctions prohibiting content from being disseminated, in contrast to the imposition of liability after publication. In fact, early interpretations of speech and press rights were actually limited to this protection. In his famous Commentaries, a treatise that was widely influential in early debates about the American Constitution, William Blackstone wrote that freedom of the press was limited to “laying no previous restraints upon publication, and not in freedom from censure for criminal matter when published.”23 Dean Leonard Levy’s influential early work on press freedom agreed that the historical record supported this interpretation of the Press Clause.24 At the beginning of the twentieth century, the Supreme Court expressed support for this narrow interpretation.25

Americans accustomed to thinking of press freedoms as far more robust might be shocked that the Founders may have had such a narrow understanding of press rights. Although the records are sparse, we do know that freedom of the press was a central concern of the Founders.26 The generation that framed and ratified the First Amendment was acutely aware that the American Revolution likely would not have occurred absent a free and independent press. When they drafted the text of the First Amendment, the Founders borrowed heavily from early state charters. All provided for a press freedom—by contrast, only one provided expressly for the freedom of speech.27

Moreover, the Founders likely viewed freedom of the press as performing important democratic functions. Professor Akhil Amar, a leading authority on the Bill of Rights, has argued that at the Founding, rights of speech, assembly, press, and petition all served the basic purpose of restraining the powers granted to the new central government.28 As demonstrated during the American Revolution, rights to communicate, assemble, publish, and petition government had enabled ordinary citizens to resist tyranny and governmental abuse.29

Again, these rights belonged not to an institutional or corporate press but to the people. As quickly became clear, however, the people’s press freedoms (p.8) could be severely restricted. For example, as discussed in more detail in Chapter 2, the First Congress, which included many Founders, enacted the Alien and Sedition Acts of 1798. The Sedition Act criminalized publications that were critical of the president and other government institutions, including Congress. Newspaper publishers and others who published criticism of President John Adams were prosecuted and jailed under the Act. Although the Supreme Court never reviewed its constitutionality, lower courts rejected First Amendment and other constitutional challenges to the Sedition Act. President Jefferson later pardoned those convicted under the Act, and Congress ultimately authorized refunds of the fines paid. However, for an extended period of American history, it was not entirely clear that punishment of “seditious” publications violated the First Amendment.

The Sedition Act controversy shows that notwithstanding the existence of the Press Clause and the recognition of the importance of press freedoms to democracy, the Founding generation authorized the jailing of presidential and government critics. Although it is now infamous, this episode shows that the Founders did not have the broad understanding of press rights that modern Americans associate with the Press Clause. It also indicated that the Founders had not fully internalized some of the important democratic lessons of the Revolutionary Era, specifically as they related to the necessity of a free and independent press. Whatever it was, the “press” could hardly serve its important functions if publishers could be jailed for merely criticizing government.

Even after the Sedition Act disappeared, newspapers and other publishers were hardly free to criticize government and government officials. State defamation laws, which imposed civil and in some cases criminal liability for publishing false statements of fact about public officials, were frequently used to punish newspapers and other publishers. These laws generally imposed a form of strict liability: they presumed damages to individual reputation from the mere publication of any false assertions. They also placed the burden on the publisher to prove the truth of any and all assertions of fact. When it came to critical reporting concerning public officials, this could prove to be an impossible burden.

Since it was not made applicable to the states until the 1930s, the First Amendment was not an available defense in state defamation lawsuits. This situation did not drastically change until the 1960s, when the Supreme Court held that state defamation laws had to conform to the First Amendment’s free speech and press provisions. In New York Times Co. (p.9) v. Sullivan, the Court held that when they sued for allegedly false statements relating to the conduct of their official duties, government officials could not recover damages unless they proved that the statements were made with “actual malice”—knowledge that they were false or reckless disregard for their truth.30 Truth could no longer be made a defense in such cases, and the plaintiff bore the burden of proving both falsity and “actual malice.” These, incidentally, are the rules that President Trump has repeatedly vowed to reconsider or “open up” on the ground that they under-protect the reputations of public officials like himself.

The Supreme Court’s reasons for creating a special liability rule were rooted in principles of self-government and the pursuit of truth. The Court observed that “although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history.”31 Historical events, the Court wrote, “reflect a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the [First Amendment].” The Court concluded that the nation’s experience with the Sedition Act, and with the offense of seditious libel more generally, had “first crystallized a national awareness of the central meaning of the First Amendment.32 That “central meaning” was that Americans must be free, subject to narrow restrictions, to criticize public officials—even if, the Court emphasized, their statements “include vehement, caustic, and sometimes unpleasantly sharp attacks.”

The Court acknowledged that false statements of fact could harm official reputations. However, it reasoned that even false statements about public officials may add something of value to public debate—particularly as they clash with true statements addressing the same subject. In any event, the Court reasoned, false statements were an inevitable aspect of public debate that is intended to be, in the Court’s famous characterization, “uninhibited, robust, and wide-open.”33 To hold publishers liable for every false statement would cast a “pall of fear and timidity” over critics of public officials and their actions and thus undermine efforts to hold officials accountable to the people.34

New York Times Co. v. Sullivan was a monumental decision. The Court seemed to have finally buried the Sedition Act. Further, it had recognized a right to engage in vigorous and critical reporting concerning public officials. However, consistent with its general treatment of the Press Clause, the Court did not limit defamation standards to the institutional media. Instead, it wrote in broad terms of the freedoms of speech and press. Like (p.10) others, the decision did not create a special liability rule applicable only to corporate media entities. The defamation rules apply whether the defendant is a corporate media giant or a lonely pamphleteer.

In addition to First Amendment protections against prior restraints on publication and limits on defamation liability, today the institutional press enjoys a number of other rights—all, however, by virtue of the Free Speech Clause. That provision generally prohibits government from regulating publications based on their content. It also limits liability for invasion of privacy and intentional infliction of emotional distress.35 Thus far, is has protected the publication of truthful information lawfully obtained by the press. Like any other “speaker,” a newspaper or broadcast outlet enjoys these and other basic free speech rights.

Some press scholars have argued that while these general First Amendment protections are important, insofar as the institutional press is concerned they are substantially incomplete. For instance, under current doctrine, the institutional press has no greater access to government property, proceedings, or information than do members of the general public.36 Thus, Professor Sonja West has argued that the Court should recognize a Press Clause “newsgathering” right.37 Moreover, in the early 1970s, the Court held that the Press Clause does not protect reporters from government demands for information about confidential sources.38 Consistent with its prior decisions, in these contexts the Court refused to view the institutional press as constitutionally “special.”

Legal and Non-legal Support for Press Freedoms

As explained, the modern foundation for a free and independent press cannot rest on specific or special First Amendment press rights. Rather, as scholars have observed, this foundation rests on “a mishmash of legal and non-legal privileges and protections.”39

For example, many states have laws that recognize a limited press privilege in response to subpoenas for confidential source information.40 However, these and other institutional press protections vary widely. Because they are not mandated by the First Amendment, they can be amended or eliminated through the ordinary legislative process.

The non-legal protections for the institutional press include the institutional press’s financial strength, judicial support for press freedoms, public (p.11) attitudes concerning the importance of a free and independent press, and political norms and customs that created a cooperative, mutually beneficial, and respectful relationship between the press and government officials.41 However, as scholars have observed, in recent years all of these “pillars” have been significantly weakened or eroded.42

Newspapers and other media have been hit hard by declining subscriptions and other economic and market forces. The general economic decline has affected newsgathering, both at home and abroad. Lack of resources has affected the nature and character of reporting and news content. In the courts, the downturn has even limited the press’s ability to defend against defamation and other claims.

As scholars have observed, judicial support for press rights has also diminished.43 In prior historical periods, courts regularly touted the importance of a free and independent press to American democracy. They were inclined to defer to media editorial and other determinations. However, there is now substantial evidence that judicial support for, and deference to, the institutional media have declined.

As noted earlier, in recent decades, the Supreme Court has accepted very few “press” cases for review.44 Meanwhile, in the lower courts, judges are less likely to defer to journalistic judgments in privacy and other press cases. These cases often turn on whether material is considered “newsworthy,” a determination that greatly affects whether a publication is protected by the First Amendment.45 In recent years, data indicate that the institutional media have lost defamation cases at a higher rate, and at higher costs, relative to prior eras. As discussed earlier, the Supreme Court has long collapsed the Press Clause into the Free Speech Clause, declining to recognize any explicit or special press rights. Even the Court’s statements about the press, both in terms of issued decisions and by justices at public events, have gone from overwhelmingly positive to far more skeptical.46

Public support for the institutional press is now at an all-time low.47 As free press scholars RonNell Jones and Sonja West have observed, “In the 1970s, more than two-thirds of Americans reported that they had trust and confidence in the mass media.”48 That number has steadily declined ever since. Jones and West observe that “[a]t the beginning of the Trump presidency . . . press confidence dropped to its lowest level in Gallup polling history.”49 Indeed, positive opinions of the institutional press have recently rested at levels below also-historically-low positive opinions concerning the president himself.

(p.12) As with the other aspects of the non-legal environment, there are many causes for the decline. Some relate to the media’s own conduct and coverage, which is subject to serious criticism. Others are the product of a decades-long coordinated campaign—including most recently by President Trump—to undermine public trust in the media. As Jones and West have concluded, “The once-sturdy pillar of public support that has long sustained the freedom of the press is now slight.”50

Finally, as Jones and West have also observed, the mutual dependence and symbiosis that once characterized the relationship between the institutional press and government officials has also substantially eroded.51 As President Trump’s use of Twitter makes abundantly clear, officials no longer need the press as they once did to communicate their messages. Relatedly, the institutional press, which relied on officials for access to information and events, now has a more precarious claim on access to such things. Today, Americans receive less and less of their information and news from mainstream media outlets. This has further weakened their position.

Constitutionally, legally, and non-legally, the institutional press is a more fragile and uncertain part of our constitutional democracy than many Americans—including members of the institutional press—appreciate. The Press Clause does not grant any special protections to the institutional press. The Free Speech Clause is not a substitute repository for special media rights. The legal and non-legal environment in which the institutional press operates is increasingly hostile to media rights, decisions, and functions. As these trends demonstrate, there is no ironclad guarantee we will always have a free and independent press.

These negative press realities all preceded the Trump presidency and the Trump Era. However, President Trump’s persistent assault on media functions and norms has exacerbated concerns about the fragility of the institutional press. During the Trump Era, we are not likely to see marked improvements in the media’s constitutional, legal, or non-legal environments. Indeed, things are likely to get worse. One concern is that the Trump Era will be the straw that breaks the institutional press’s back. Again, as Professors Jones and West have observed, “Contrary to widespread belief, our concern should not be that Trump might be taking the first step toward crippling the power of the free press, but rather that he might be taking the final step in a process that has long been underway.”52

(p.13) The Necessary but Imperfect Press

American history shows that a free and independent press is necessary to a functioning democracy. However, during the Trump Era there is a danger that this lesson will be lost to partisan rancor and cultural cleavages. One “side” seems to view the press as the “enemy of the people,” as President Trump has frequently suggested, while the other “side” sees it as beyond reproach. The truth, as usual, lies somewhere in-between. The institutional press is necessary to self-government, dissent, and democracy. But like the other institutions of democracy, it is also deeply flawed.

Since at least the American Revolution, freedom of the press has been associated with several fundamental democratic functions. As the institutional press enters a uniquely challenging era, it is appropriate to revisit these. Relatedly, we ought to think about why, despite its flaws, we must fight to preserve a free and independent press. For one thing, we do not protect constitutional rights only when and to the extent they are perfectly or even responsibly exercised. Think, for example, of the freedom of speech. So too with the institutional press, whose excesses and biases ought not to be used as grounds to eradicate a core democratic institution.

As discussed, during certain eras the Supreme Court, although it did not recognize special press rights, frequently highlighted the virtues of a free and independent press. Here is just a sample of its statements on the democratic and other functions of a free press:

  • “ ‘An untrammeled press [is] a vital source of public information,’ . . . and an informed public is the essence of working democracy.”53

  • “In a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press to bring to him in convenient form the facts of those operations.”54

  • “Without the information provided by the press most of us and many of our representatives would be unable to vote intelligently or to register opinions on the administration of government generally.”55

  • The press is “a mighty catalyst in awakening public interest in governmental affairs”56 and an entity “specifically selected” by the Constitution “to play an important role in the discussion of public affairs.”57

  • A free press “plays a unique role as a check on government abuse.”58

  • The press “will often serve as an important restraint on government.”59

  • (p.14) “The press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve.”60

  • “The press has exerted a freedom in canvassing the merits and measures of public men, of every description.”61

Many of these statements were made during what Professor RonNell Jones has described as the press’s “Glory Days.”62 The Court then associated a free and independent press with educative, dialog-facilitating, and checking functions that are critical to a well-functioning democracy. Thus, the institutional press gathers and distributes vitally important information that helps inform the public about matters of public concern. It sparks and facilitates conversations and debates concerning such matters. As what Justice Stewart called a “Fourth Estate,” the press checks governmental abuse of power. It exposes wrongdoing, corruption, and other kinds of misfeasance or malfeasance by elected and appointed officials.

These functions are all critically important to American democracy and to a variety of related First Amendment functions, among them facilitating citizen self-government, the pursuit of truth, and effective dissent. In order to perform these functions, the press must be free from governmental efforts to interfere with its editorial discretion. It must be able to attend important public events, such as White House briefings and criminal trials, that inform the public’s understanding of democratic institutions and processes. Perhaps most important, the press must be free within broad parameters to publish information about the conduct of government officials. This must necessarily include the right to publish some information that the government would prefer to keep secret. Press exposés on government corruption, the conduct or misconduct of war, and even criminal wrongdoing by officials have facilitated self-government, dissent, and democratic change.63 Depending on how it unfolds, the Assange prosecution may undermine a fundamental check on government abuse.

Protecting the press’s right to publish has hardly been uncontroversial. The press has sometimes been viewed and treated as a dangerous institution—particularly, although not exclusively, during times of war and national conflict when publications have broadcast dissenting views that were seen as undermining national unity. Further, the institutional press has long engaged in activities that the subjects find deeply invasive (p.15) and offensive. During the Trump Era, these sentiments have reached a fever pitch, with the president leading the charge by telling the American people (and people around the world) that the press is “phony,” fake,” and the “enemy of the people.” These labels attend any coverage the president does not approve of, or that is insufficiently fawning.

Despite its abuses of trust and power, the institutional press has always been afforded a degree of latitude owing to its critical democratic functions. As the Court observed in New York Times Co. v. Sullivan, the “central meaning of the First Amendment” is that government cannot stifle criticism of those in power even, indeed especially, if the criticism is sharp and may negatively affect an official’s reputation. “Some degree of abuse,” the Supreme Court once observed, “is inseparable from the proper use of every thing, and in no instance is this more true than in that of the press.”64 The Court has characterized the press’s role as so important that it “require[s] that the press have a free hand” notwithstanding its occasional exercise of poor judgment and its resort to “sensationalism.”65

Realism about the costs and benefits of press freedom is a long-standing virtue of our First Amendment tradition. James Madison, the architect of the First Amendment, vigorously objected to the Sedition Act on free press grounds. But he was not blind to the excesses and abuses of the press, many of which had already become apparent. Thus, Madison observed:

It has accordingly been decided by the practice of the States, that it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits. And can the wisdom of this policy be doubted by any who reflect that to the press alone, chequered as it is with abuses, the world is indebted for all the triumphs which have been gained by reason and humanity over error and oppression; who reflect that to the same beneficient source the United States owe much of the lights which conducted them to the ranks of a free and independent nation, and which have improved their political system into a shape so auspicious to their happiness?66

Supreme Court decisions have echoed Madison’s reflections on the importance of preserving a strong, if imperfect, press. For example, in Near v. Minnesota,67 decided in 1931, the Court invalidated a state statute imposing a prior restraint on allegedly defamatory newspaper publications. In language that still resonates, it observed:

(p.16)

While reckless assaults upon public men, and efforts to bring obloquy upon those who are endeavoring faithfully to discharge official duties, exert a baleful influence and deserve the severest condemnation in public opinion, it cannot be said that this abuse is greater, and it is believed to be less, than that which characterized the period in which our institutions took shape. Meanwhile, the administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most serious proportions, and the danger of its protection by unfaithful officials and of the impairment of fundamental security of life and property by criminal alliances and official neglect, emphasizes the primary need of a vigilant and courageous press, especially in the great cities.68

Particularly in light of current attacks on the press, Madison’s and the Court’s statements are worth quoting at length and considering carefully. Although written more than a century apart, the statements are linked by the central premise that notwithstanding its excesses, abuses, and biases, a free and independent press remains critically important to the democratic experiment. Madison and the Court candidly acknowledged the significant costs of allowing the press to doggedly pursue public officials. They did not ignore the flaws inherent in an institution with the power to investigate, report on, and ultimately discredit or even help depose public officials. They knew that bias (real and perceived), erroneous reporting, and other abuses are as natural in the “Fourth Estate” as are errors and abuses by the political branches of government. But as with other rights, including the freedom of speech, freedom of the press was not to be protected only when it was exercised responsibly.

Of course, the press has never been free to publish anything it wishes without consequence. Madison was responding to the Sedition Act, which imposed criminal penalties on press and other government critics. Near involved the “original sin” of the prior restraint, a means of suppressing criticism of public officials, which had long been considered presumptively unconstitutional. As discussed, it was not until the 1960s that the Sedition Act was formally interred. Before that period, the press was generally liable for all misstatements of fact and many other allegedly harmful publications.

Over time, owing to recognition that the benefits of a free and independent press counseled more latitude in reporting, publishing, and speaking—particularly about official activities—the First Amendment’s (p.17) free press and speech doctrines changed. Today, among other things, those doctrines accommodate non-intentional errors (i.e., those published without “actual malice”), the publication of sharply critical opinions about government, and the dissemination of certain confidential or secret information. Even President Adams, who had used the Sedition Act to punish his critics, had a change of heart once he was out of office. Both he and Thomas Jefferson, himself a sharp critic of the press when he was president, ultimately came around to the necessity of preserving a free and independent press.69 Indeed, Jefferson ultimately supported a free and independent press as “the best instrument for enlightening the mind of man, and improving him as a rational, moral, and social being.”70

Fast forward to the current era, when the president frequently complains about press coverage of himself and the administration. “We want fairness,” President Trump has proclaimed. “Can’t say things that are false, knowingly false, and be able to smile as money pours into your bank account. We are going to take a very, very strong look at that, and I think what the American people want to see is fairness.” Defamation laws are established by the state, so the federal government cannot actually “open them up” or otherwise alter them (other than through a constitutional amendment or a general reconsideration of Supreme Court precedents). Freedom of the press could, however, be altered by the Supreme Court’s interpretation of the First Amendment in specific cases or repeal of statutory protections afforded to the press. The press, fearing official repercussions, may also trim its own sails in covering government and public officials to make its reporting “fairer.”

As noted, the costs of maintaining a free and independent press are both real and significant. The defamation rules that the Supreme Court ultimately established in New York Times Co. v. Sullivan, which protect the publication of false statements of fact about officials so long as they are not published with knowledge that they were false or reckless disregard for the truth, have been subject to criticism. Long before President Trump issued his call for “fairness,” scholars complained that the “actual malice” standard did not adequately protect the reputational harms suffered by public officials and was unnecessary for the protection of a free and independent press.71 Critics also worried that the defamation standards deter qualified candidates from entering the political arena.

At the same time, others argued that the standards do not go far enough in terms of protecting the rights of defamation defendants—in particular (p.18) the institutional media.72 Some believe that under these standards, it is still too easy to subject the press to expensive and perhaps ruinous lawsuits. As noted earlier, press defendants currently lose a higher percentage of defamation cases than they did during earlier eras and may not be financially able to defend themselves in some instances.

Debating the costs and benefits of the First Amendment defamation standards is a healthy and worthwhile democratic exercise. Prior proponents of what the president calls “fairness” have pointed to making it easier to recover certain types of damages or adopting alternative remedies for defamation such as prompt retractions or apologies. These proposals were not intended to make it easier to quash critical opinions of government or government officials, or to sue the press for millions of dollars. Rather, they were serious efforts to reckon with the balance of interests implicated when the press reports facts about governmental operations, policies, or individuals.

The argument that a powerful press, which can operate as a check on government, itself merits a degree of checking is worth considering. For the reasons discussed earlier, the press is not as powerful as the president and others would have the people believe. But despite its overall fragility, the institutional press retains a significant degree of power and influence in politics and culture. In the current news environment, the press is bound to make many mistakes as it seeks to report on matters that develop in seconds rather than days or “news cycles.” It is thus wise to anticipate and reckon with those errors, as well as with the broader direction of news reporting in a fractured digital media landscape.

Reckoning with these issues requires framing them in an honest and useful way. The president’s “fairness” argument differs from previous debates in two critical respects. First, it appears to be aimed at the general suppression of critical opinions of himself and the government, rather than at the narrower class of careless or even intentionally false factual reporting. Second, the president appears to want to use the excesses and errors of the institutional press not as a reason to “open up” the defamation standards, but rather as grounds for scrapping the institution altogether.

The president views the press as an “enemy” with which he and the American people are at “war.” He sees only the costs of the press’s freedom and independence. The words and context of the president’s “fairness” complaint, which includes all the other threats and retaliatory measures he has taken against critics, suggest a desire to alter the rules such that the press (p.19) is compelled to project a more positive perception of the president himself and his administration. Viewed in this light, “fairness” is part of the broader agenda to weaken and undermine the freedom and independence of dissenters.

President Trump should be careful what he wishes for, particularly with regard to the First Amendment’s defamation standards. As discussed earlier, the First Amendment standards that apply to the press apply as well to individual speakers—including government officials. Surely the president knows this much, as he has been and is currently a defendant in some defamation lawsuits. Given his penchant for public commentary on private citizens, public figures, and public officials, more than most Americans the president stands to benefit from current First Amendment standards.

Of course, personal liabilities and motives ought not to drive consideration of defamation standards and other press limits. Despite its flaws and failings, the institutional press continues to be a critical bulwark against oppressive forms of government. Realism about press freedom and a healthy skepticism of reporting are essential elements of a self-governing democracy. However, as Madison, Adams, Jefferson, and others long ago realized, without a free and independent press democracy itself cannot survive.

The “Central Meaning” of the First Amendment

The Supreme Court has observed that the “central meaning” of the First Amendment’s free speech and press guarantees is that citizens must be free to communicate and receive facts and opinions about their government. The Trump Era poses several notable challenges to this central First Amendment concern, particularly as it relates to the institutional press. As discussed, these challenges come not just from the statements and policies of governments and public officials, but from things such as market forces, changing judicial attitudes, diminishing public support for the press, and the manner in which people engage with news on matters of public concern.

To serve its educative and other democratic functions, the press must be both free and independent—free to report on matters of public concern and independent from government officials who would coopt and censor it. Effective self-government depends largely on this free flow of information. Reporting honestly and aggressively on matters of public concern facilitates (p.20) the public sharing of information, which is critical to both consent to government and dissent from it.

Tearing down the existing First Amendment defamation rules for the purpose of ensuring a more complimentary or supine press would be a step toward eradicating the press as a democratic institution. As Justice Douglas once observed, “The dominant purpose of the First Amendment was to prohibit the widespread practice of governmental suppression of embarrassing information.”73

More broadly, the president’s self-proclaimed “war” on the press poses an existential threat to the existence of a free and independent press. His threats to revoke broadcast licenses, increase postal rates for media owners, punish the press for publishing truthful information lawfully obtained, and take other retaliatory measures all raise very serious First Amendment concerns. Even if they are intended to produce media self-censorship rather than official acts of retribution, we ought to be concerned about this chilling effect.

A recent conflict sheds light on the nature of current challenges. Sparring with or even criticizing reporters has long been a normal part of press–president interaction. But engaging in acts of retaliation and threatening to use executive power to punish journalists or media outlets based on their coverage are not normal. When the press secretary revoked the “hard pass” issued to a CNN reporter after the reporter engaged in a tense back and forth with President Trump at a presidential news conference, another norm relating to press freedoms was breached. The president argued in court that he had absolute discretion to engage with whichever reporters he chose, presumably for any reason.

As we know, the press is not entitled to access to briefings or press passes. However, once access has been provided, revoking press credentials or excluding reporters on the basis of their negative coverage or the content of their questions implicates First Amendment free press and speech rights.74 I say “implicates” because there is very little case law concerning whether this action would violate the First Amendment. The lack of precedent is itself testament to the unusual nature of the action taken. Whether this episode or others like it violate the First Amendment, such actions cut against long-standing norms relating to press access to and questioning of government officials. They also serve as an official warning to reporters and the press that “disrespectful” or critical questioning of government officials will lead to professional reprisals.

(p.21) Of course, as noted earlier, presidents have long had tense relationships with pamphleteers, newspapers, and other media. George Washington characterized the press as “infamous scribblers.” During his presidency, Thomas Jefferson wrote in private correspondence that “[n]othing can now be believed which is seen in a newspaper.” “Truth itself,” he complained, “becomes suspicious by being put into that polluted vehicle.”75 As discussed, the First Congress authorized criminal prosecutions of government critics, and many publishers went to jail as a result. Presidents from Adams to Nixon have had many unkind things to say about the press, mostly in private conversations and correspondence. President Obama’s administration was also sharply criticized, in particular for issuing subpoenas to reporters for information about confidential sources.

A student of history might say that things have indeed been much worse. Under the Sedition Act, publishers were actually thrown in jail for their critical coverage. However, that era is hardly an appropriate benchmark for modern free press and free speech principles. Indeed, it was the impetus for the Supreme Court’s articulation of the First Amendment’s “central meaning.”

For a few reasons, the contemporary “war” on the press is historically distinct. President Trump’s public, vitriolic, and incessant peacetime campaign to discredit the media has no historical analog. As noted earlier, no president has ever publicly referred to the press, as President Trump has on several occasions, as “the enemy of the American people.” This goes beyond criticizing news coverage or purported professional lapses. It suggests that the institutional press is not just untrustworthy, but illegitimate and unpatriotic—a force of evil aligned against the interests of the United States and its people. Similarly, the president’s public attacks on individual reporters and journalists suggest that members of the institutional press are personal enemies, to be heckled or perhaps even physically harmed.

Further, the “war” the president is waging is not only a war on the press but also a war on fact and truth itself. As the president understands it, “fake news” is not manufactured reporting, but rather any news that does not fit the administration’s own narrative. In this war, “alternative facts” are being used as countermeasures in an attempt to destroy even things we can all see with our own eyes. As President Trump once said to a rally audience, “What you’re seeing and what you’re reading is not what’s happening.”

(p.22) Press Preservation

The war on the media and the broader battle for “truth” itself are serious threats to the press and public discourse. Engaging and fighting in this “war” will be critical to the preservation of the press.

However, we need to also recognize that the media is partly to blame for the current predicament. There is no small irony in the president’s strategy to undermine the credibility of the institutional press. That institution arguably played a singular role in creating the Trump phenomenon, in part by granting the campaign and now the administration massive amounts of free media. A new dysfunctional symbiosis has emerged, one in which the media rely on Trump to create content that draws viewers and readers and the president simultaneously conducts his “war” on the press for political gain.

Thus, how the media responds to the press war of the Trump Era will help to determine its own future. It will have to defend not only its First Amendment rights, but also its public credibility. The war on truth has been facilitated by a media landscape in which partisans look to favored outlets for news and information and distrust all other sources. This makes the sort of rational debate that a free and independent press ought to facilitate next to impossible. Contestants in debates cannot even agree on the underlying facts relating to policies concerning matters such as immigration, national security, and healthcare. The media does no service to democratic discourse when it falsely equates things or positions that are not equal, broadcasts lies in order to “balance” its coverage, or breathlessly parses presidential tweets to the exclusion of news relating to matters of public concern.

It will be difficult to break free of these practices. Market and economic concerns will continue to drive coverage to some degree. The media landscape will likely remain fractured. However, past efforts to suppress criticism and truth-seeking have left us with some important lessons. For instance, historians have observed that even in the face of Sedition Act prosecutions, reporting on governmental excess and misconduct not only “continued unabated, but intensified.”76 Like our colonial forebears, modern media must not capitulate to official demands to silence criticism or shade investigative reporting to suit official or public narratives. It must push back against efforts to retaliate against reporters for performing their checking function and to undermine the notion of a free press.

(p.23) Fighting back is important, but it will not be enough. As public opinion polling shows, the long “war” on media credibility, which began long before the Trump presidency but has now reached a fever pitch, has taken a substantial toll in terms of the media’s trust and reputation. The institutional media will have to do more than provide critical coverage and incessant fact-checking of public officials. If it is to survive its current financial, technological, and other challenges, the institutional press will need to be more resilient and creative.77 Sound-bite reporting, tweet-reading, and scandalmongering are not going to restore public confidence in the media.

As the past few years have demonstrated, constantly reacting to every public statement the president makes is a pernicious trap. It obscures issues and concerns outside the Twitter timeline, which affect real people and actual lives. Moreover, the media’s treatment of governance as entertainment has not benefitted a public that knows less and less about the actual workings of its own government. As educators and discourse-initiators, the media must develop and nurture markets for news and information that can provide potential antidotes to partisan truth-splicing. There is a market for this kind of coverage, and some media outlets do already provide it. But it is not nearly enough. Without such efforts, it is possible that more and more Americans might conclude that the costs of having a free press outweigh its social and political benefits.

History also shows that the institutional press will not be able to save itself or survive on its own. When it comes to the preservation of a free and independent press, there are many stakeholders. Legislators, who may themselves need to be educated about the actual meaning of the Press Clause and the fragility of the modern press, have a role to play. They can enact and preserve legal protections that allow the press to function, including laws that protect reporters’ sources from being disclosed. Despite changes to the government–press dynamic, most lawmakers still rely on the press to disseminate news of their accomplishments and to inform their constituencies about public issues. Self-interest and the broader public interest ought to lead to a more protective legislative agenda regarding the institutional press.

Courts also need to reconnect with the lessons of the “Glory Days,” when the democratic functions of the institutional press were articulated and defended (even if such defenses did not lead to “special” rights) despite the press’s known excesses. Even if the Supreme Court is not going to adopt a more “institutional” conception of the Press Clause or recognize “special” press rights, its decisions on press-related rights such as newsgathering can (p.24) help to preserve a free and independent press. The Court can also return to its tradition of recognizing and articulating the democratic benefits associated with freedom of the press. In their decisions and public remarks, judges can educate the public about the traditions and functions of a free press.

With regard to the fate of a free and independent press, the people themselves obviously have the most to gain or lose. Activists will remain committed to governmental transparency and other principles that facilitate the free and open distribution of information about government. However, in a broader sense, the people bear significant responsibility for preserving a free and independent press.

For far too long, we have allowed ourselves to fall prey to partisan impulses when it comes to news consumption. Some have become too lazy to be skeptical about the news they receive or its sourcing. Others have become too skeptical of anything presenting itself as “news,” viewing it mostly as false or “fake” if it does not confirm their own biases. Still others have effectively outsourced credibility determinations to favored outlets, pundits, or officials, effectively allowing them to determine what is “fake” and what is “real.”

It may not be possible to return to a time when a significant majority of Americans trusted and felt positively about the institutional media. But there is one critical respect in which the First Amendment doctrines of speech and press coincide with the realities of self-government. As discussed earlier, the First Amendment protects the rights of all individuals to collect, disseminate, and consume information. These rights belong to, and need to be exercised by, the people.

We do not need media to filter or characterize the news. However, we do need it to help provide the information necessary for us to make self-governing choices. Our responsibilities, as citizens, are first to become more astute and critical consumers of information and then to teach future generations how to critically analyze news sources and separate fact from fiction. In sum, realizing the “central meaning” of the First Amendment is not solely a project for the press. It is an undertaking we must all participate in, as stewards of our First Amendment free speech and press traditions.

Should this mission fail, the harms and consequences are likely to be dire. A recent poll found that more than 40 percent of self-identified Republicans would give the president the power to shut down certain media outlets “engaged in bad behavior.”78 That would be the act of an autocrat, not the (p.25) leader of an established democracy with a free and independent press. It would vest in government the dangerous power to quash dissent.

The stakes for individual reporters are also critical. According to the Committee to Protect Journalists, an advocacy group that does an annual count of detained and killed journalists across the globe, in 2018 at least 48 journalists have been killed on the job. In many cases, the journalists were performing the press’s central checking function. Saudi Arabian officials have been accused of plotting and carrying out the murder of Jamaal Khashoggi, a prominent Saudi critic who contributed to The Washington Post. Bulgarian authorities are investigating the rape and murder of Viktoria Marinova, an investigative reporter. In October 2017, Maltese investigative journalist Daphne Caruana Galizia was killed by a car bomb near her home. She was working on the so-called Panama Papers, leaked documents that revealed financial information about the offshore accounts of high-profile officials.

Reporters face the threat of death in the United States as well, although not directly at the hands of public officials. A man was recently arrested after he referred to several reporters working at the Boston Globe as “the enemy of the people” and threatened to harm them. In June 2018, five journalists who worked for the Capital Gazette in Annapolis, Maryland, were shot by a man who had a grievance against the paper, stemming from an unsuccessful defamation lawsuit he filed against it.

Whether these incidents are directly linked to the president’s statements is largely beside the point. Regardless of whether there is a demonstrable causal connection, the president’s rhetoric of “war” against an “enemy” press responsible for spreading “fake” news must be taken seriously. This is not the discourse of a responsible leader aware of the democratic values of a free and independent press. It is the misuse of the bully pulpit by a would-be authoritarian intent on discrediting that institution in an effort to convince the people that truth emanates from only one source—himself.

The press is in trouble—even in democratic nations where leaders do not resort to official censorship or murder. Right-wing populist parties are seeking to undermine the credibility of the press in a number of European Union nations. Reporters have been jailed or subject to government intimidation in Bulgaria, Slovakia, Romania, Serbia, and Montenegro. The ruling party in nominally democratic Hungary has recently published lists of “enemy” journalists. Despite the existence of constitutional protections for freedom of the press and freedom of speech, Hungary’s legal environment (p.26) has grown increasingly hostile to opposition newspapers and the free distribution of information.

Across the world, the combination of media consolidation, revenue loss, attacks on individual reporters, financial and other forms of retaliation against press outlets, and the labeling of the press as “the enemy of the people” now threatens the very existence of a free and independent press. We should not pretend that these trends have nothing to do with the “wars” now being waged on the press and the truth in the United States. The world is watching. Historically, constitutionally, and institutionally, America is better-situated than most nations to resist such threats. However, as recent events here and abroad have made clear, Americans cannot simply take a free and independent press for granted.

In response to a question about what the Founders had created in Philadelphia in 1787, a republic or a monarchy, Benjamin Franklin reportedly responded “a republic . . . if you can keep it.”79 Like the republic itself, the continued existence of a free and independent press is not guaranteed. And history demonstrates that the survival of one is indelibly linked to the fate of the other.

Notes:

(1.) Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 51 (1971), abrogated by Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

(2.) See Sonja R. West, “Presidential Attacks on the Press,” 80 Mo. L. Rev. 915 (2018).

(3.) RonNell Anderson Jones & Sonja West, “The Fragility of the Free American Press,” 112 Nw. U. L. Rev. Online 47, 49 (2017).

(4.) PEN America Center, Inc. v. Donald J. Trump, Civil Action No. 18-cv-9433-LGS (S.D.N.Y 2019).

(5.) Id., amended complaint at 1.

(6.) Id. at 2–3.

(7.) Id. at 1.

(8.) See New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (observing that free speech and press protections of the First Amendment “reflect a profound national commitment to the public principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”).

(9.) David A. Anderson, “Freedom of the Press,” 80 Tex L. Rev. 429, 430 (2002).

(10.) See, e.g., Eugene Volokh, “Freedom of the Press as an Industry, or for the Press as a Technology? From the Framing to Today,” 160 U. Penn. L. Rev. 459, 538–39 (2012) (arguing that the Press Clause has been understood throughout American history to guarantee “equal treatment to [all] speakers without regard to whether they are members of the press-as-industry”).

(11.) Id.

(12.) See Sullivan, 376 U.S. at 256 (“We are required in this case to determine for the first time the extent to which the constitutional protections for speech and press limit a State’s power to award damages in a libel action brought by a public official against critics of his official conduct.”). The Court used some version of the formulation “freedoms of speech and press” throughout its opinion. See, e.g., id. at 265.

(13.) See Melville Nimmer, “Introduction—Is Freedom of the Press a Redundancy: What Does It Add to Freedom of Speech?,” 26 Hastings L. J. 639, 640 (1975). Not all scholars agree with that assessment. See, e.g., Jud Campbell, “Natural Rights and the First Amendment,” 127 Yale L. J. 246 (2017) (concluding, based on natural law understandings, that freedom of speech and freedom of press comprised distinctive guarantees).

(14.) See, e.g., Branzburg v. Hayes, 408 U.S. 665, 704 (1972) (observing that defining the press for purposes of evidentiary privileges “would present practical and conceptual difficulties of a high order”).

(15.) Some media representatives were wary of seeking special “press” rights for this reason. See RonNell Anderson Jones, “The Dangers of Press Clause Dicta,” 48 Ga. L. Rev. 705, 718–19 (2014). As Sonja West has noted, “[t]he justices’ understandable desire to avoid favoring an elite group has led them to allow the Speech Clause to swallow the Press Clause.” West, supra note 2, at 1031.

(16.) Address by Mr. Justice Stewart, Yale Law School Sesquicentennial Convocation, November 2, 1974, reprinted in Stewart, “Or of the Press,” 26 Hastings L.J. 631 (1975).

(17.) See generally Nimmer, supra note 13.

(18.) See West, supra note 2, at 1033–41. See also Randall P. Bezanson, “Whither Freedom of the Press?,” 97 Iowa L. Rev. 1259, 1273 (2012) (“We need a guarantee of freedom of the press distinct from freedom of speech.”).

(19.) See First Nat’l Bank v. Belotti, 435 U.S. 765, 799–800 (1978). See also David Lange, “The Speech and Press Clauses,” 23 UCLA L. Rev. 77, 88 (1975) (interpreting the free speech and press provisions as interchangeable).

(20.) First National Bank v. Bellotti, 435 U.S. 765, 800 (1978) (Burger, J., concurring).

(21.) See Timothy Zick, The Dynamic Free Speech Clause: Free Speech and Its Relation to Other Constitutional Rights ch. 3 (Oxford Univ. Press, 2018) (discussing the treatment of speech, press, assembly, and petition as different aspects of a “free expression” right).

(22.) See C. Edwin Baker, “The Independent Significance of the Press Clause under Existing Law,” 35 Hofstra L. Rev. 955, 956 (2007) (“The Court has never explicitly recognized that the Press Clause involves any significant content different from that provided to all individuals by the prohibition on abridging freedom of speech.”). See also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) (invalidating trial court closure order on grounds that public and press have a right to attend trial proceedings).

(23.) 4 W. Blackstone, Commentaries on the Laws of England 151–52 (Oxford, 1769).

(24.) See Leonard Levy, Freedom of the Press from Zenger to Jefferson lv–lvi (Bobbs-Merrill, 1966).

(25.) See Patterson v. Colorado, 205 U.S. 454 (1907) (suggesting that First Amendment protection was limited to invalidating prior restraints).

(26.) See Leonard Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History 214–15 (Harvard Univ. Press, 1960) (observing that “freedom of the press was everywhere a grand topic for declamation”).

(27.) See David A. Anderson, “The Origins of the Press Clause,” 30 UCLA L. Rev. 455, 465 (1983) (observing that of the early state constitutions, only Pennsylvania’s contained a free speech provision).

(28.) See Akhil Amar, The Bill of Rights: Creation and Reconstruction 20–26 (discussing free speech and free press); 26–32 (discussing assembly and petition) (Yale Univ. Press., 1998).

(29.) See generally Stephen D. Solomon, Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech (St. Martin’s Press, 2016).

(30.) 376 U.S. 254, 270 (1964).

(31.) Id. at 276.

(32.) Id. at 273.

(33.) Id.

(34.) Id. at 277–78.

(35.) E.g., Fla. Star v. B.J.F., 491 U.S. 524, 525 (1989); Hustler Mag., Inc. v. Falwell, 485 U.S. 46, 46-47 (1988).

(36.) Citizens United v. FEC, 558 U.S. 310, 352 (2010) (“We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.”).

(37.) West, supra note 2, at 1069–70.

(38.) Branzburg v. Hayes, 408 U.S. 665, 702–03 (1972) .

(39.) Jones & West, supra note 3, at 54.

(40.) See Mary-Rose Papandrea, “Citizen Journalism and the Reporter’s Privilege,” 91 Minn. L. Rev. 515, 546 & nn.175, 176 (2007) (collecting citations to state laws recognizing qualified reporters’ privilege).

(41.) Jones & West, supra note 3, at 55–63.

(42.) Id.

(43.) Id.

(44.) Lyrissa Barnett Lidsky, “Not a Free Press Court?,” 2012 BYU L. Rev. 1819 (2012).

(45.) See Amy Gadja, The First Amendment Bubble 55–60 (Harv. Univ. Press, 2015).

(46.) RonNell Anderson Jones, “What the Supreme Court Thinks of the Press and Why It Matters,” 66 Ala. L. Rev. 253, 255 (2014); RonNell Andersen Jones, “Justice Scalia and Fourth Estate Skepticism,” 15 First Amend. L. Rev. 258, 264–65 (2017).

(47.) Jones, “What the Supreme Court Thinks,” supra note 46, at 266-68.

(48.) Jones & West, supra note 3, at 59.

(49.) Id.

(50.) Id. at 60.

(51.) Id. at 61–62.

(52.) Id. at 49.

(53.) Minneapolis Star & Tribune Co. v. Minn. Comm’r of Revenue, 460 U.S. 575, 585 (1983) (alteration in original) (citation omitted) (quoting Grosjean v. Am. Press Co., 297 U.S. 233, 250 (1936)).

(54.) Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491 (1975).

(55.) Id. at 492.

(56.) Estes v. Texas, 381 U.S. 532, 539 (1965).

(57.) Mills v. Alabama, 384 U.S. 214, 219 (1966).

(58.) Leathers v. Medlock, 499 U.S. 439, 447 (1991).

(59.) Minneapolis Star & Tribune Co. v. Minn. Comm’r of Revenue, 460 U.S. 575, 585 (1983).

(60.) Mills, 384 U.S. at 219.

(61.) New York Times Co. v. Sullivan, 376 U.S. 254, 275 (1964) (quoting 4 Elliot’s Debates on the Federal Constitution 570 (1876)).

(62.) Jones, “What the Supreme Court Thinks,” supra note 46, at 255–56.

(63.) See New York Times Co. v. United States, 403 U.S. 713 (1971) (invalidating judicial injunctions prohibiting publication of the Pentagon Papers); United States v. Nixon, 418 U.S. 683 (1974) (rejecting president’s claim of “executive privilege” covering audiotapes relating to Watergate burglary and cover-up).

(64.) Time, Inc. v. Hill, 385 U.S. 374, 388–89 (1967) (quoting 4 Elliot’s Debates, at 571).

(65.) Sheppard v. Maxwell, 384 U.S. 333, 350 (1966).

(66.) Id. (quoting Report on the Virginia Resolutions, Madison’s Works, vol. iv, 544).

(67.) 283 U.S. 697, 718 (1931).

(68.) Id. at 719.

(69.) Solomon, supra note 29, at 297–98.

(70.) Thomas Jefferson to Monsieur A. Coray, 31 October 1823, in The Writings of Thomas Jefferson, ed. H.A. Washington ch. 7, 323–24 (Taylor & Murray, 1854).

(71.) E.g., Henry Monaghan, “Of ‘Liberty’ and ‘Property,’” 62 Cornell L. Rev. 405 (1977); Richard Epstein, “Was New York Times v. Sullivan Wrong?,” 53 U. Chi. L. Rev. 782 (1986).

(72.) E.g., David Anderson, “Libel and Press Self-Censorship,” 53 Tex. L. Rev. 422 (1975).

(73.) New York Times Co. v. United States, 403 U.S. 713 (1971) (Douglas, J., concurring).

(74.) See Sherrill v. Knight, 569 F.2d 124, 129 (D.C. Cir. 1977) (“The protection afforded to newsgathering under the first amendment guarantee of freedom of the press requires that . . . access [to White House press facilities] not be denied arbitrarily or for less than compelling reasons.”).

(75.) Solomon, supra note 29, at 297.

(76.) Id. at 279.

(77.) For a forward-looking agenda for a free and independent press, see Lee C. Bollinger, Uninhibited, Robust, and Wide Open: A Free Press for a New Century (Oxford Univ. Press, 2010).

(78.) See “Americans’ Views on the Media: Ipsos Poll Shows Almost a Third of the American People Agree That the News Media Is the Enemy,” https://www.ipsos.com/en-us/news-polls/americans-views-media-2018-08-07.

(79.) The Records of the Federal Convention of 1787, ed. Max Farrand, vol. 3, appendix A, p. 85 (1911, reprinted 1934).