Carey

Shenkman

First Amendment and Human Rights Lawyer


The Press Clause As Explained by Supreme Court Chief Justice Warren Burger

September 15, 2013Carey Shenkman0 Comments

In light of the recent view by Congress that it gets to decide who is and isn’t press, I dug up one of my favorite passages elucidating the little-understood “press clause” of the First Amendment. Courtesy of Cornell LII.

This excerpt is taken from Chief Justice Warren Burger’s concurrence in First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978):

I perceive two fundamental difficulties with a narrow reading of the Press Clause. First, although certainty on this point is not possible, the history of the Clause does not suggest that the authors contemplated a “special” or “institutional” privilege. See Lange, The Speech and Press Clauses, 23 UCLA L.Rev. 77, 88-99 (1975). The common 18th century understanding of freedom of the press is suggested by Andrew Bradford, a colonial American newspaperman. In defining the nature of the liberty, he did not limit it to a particular group:

“But, by the Freedom of the Press, I mean a Liberty, within the Bounds of Law, for any Man to communicate to the Public, his Sentiments on the Important Points of Religion and Government ; of proposing any Laws, which he apprehends may be for the Good of his Countrey, and of applying for the Repeal of such, as he Judges pernicious. . . .

“This is the Liberty of the Press, the great Palladium of all our other Liberties, which I hope the good People of this Province, will forever enjoy . . ..” A. Bradford, Sentiments on the Liberty of the Press, in L. Levy, Freedom of the Press from Zenger to Jefferson 41-42 (1966) (emphasis deleted) (first published in Bradford’s The American Weekly Mercury, a Philadelphia newspaper, Apr. 25, 1734).

Indeed most pre-First Amendment commentators “who employed the term ‘freedom of speech’ with great frequency, used it synonomously with freedom of the press.” L. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History 174 (1960).

Those interpreting the Press Clause as extending protection only to, or creating a special role for, the “institutional press” must either (a) assert such an intention on the part of the Framers for which no supporting evidence is available, cf. Lange, supra, at 89-91; (b) argue that events after 1791 somehow operated to “constitutionalize” this interpretation, see Bezanson, supra n. 3, at 788; or (c) candidly acknowledging the absence of historical support, suggest that the intent of the Framers is not important today. See Nimmer, supra n. 3, at 640-641.

To conclude that the Framers did not intend to limit the freedom of the press to one select group is not necessarily to suggest that the Press Clause is redundant. The Speech Clause standing alone may be viewed as a protection of the liberty to express ideas and beliefs, 4while the Press Clause focuses specifically on the liberty to disseminate expression broadly and “comprehends every sort of publication which affords a vehicle of information and opinion.” Lovell v. Griffin, 303 U.S. 444 452, 58 S.Ct. 666, 669, 82 L.Ed. 949 (1938). 5Yet there is no fundamental distinction between expression and dissemination. The liberty encompassed by the Press Clause, although complementary to and a natural extension of Speech Clause liberty, merited special mention simply because it had been more often the object of official restraints. Soon after the invention of the printing press, English and continental monarchs, fearful of the power implicit in its use and the threat to Establishment thought and order—political and religious—devised restraints, such as licensing, censors, indices of prohibited books, and prosecutions for seditious libel, which generally were unknown in the pre-printing press era. Official restrictions were the official response to the new, disquieting idea that this invention would provide a means for mass communication.

The second fundamental difficulty with interpreting the Press Clause as conferring special status on a limited group is one of definition. See Lange,supra, at 100-107. The very task of including some entities within the “institutional press” while excluding others, whether undertaken by legislature, court, or administrative agency, is reminiscent of the abhorred licensing system of Tudor and Stuart England—a system the First Amendment was intended to ban from this country. Lovell v. Griffin, supra, 303 U.S., at 451-452, 58 S.Ct., at 668-669. Further, the officials undertaking that task would be required to distinguish the protected from the unprotected on the basis of such variables as content of expression, frequency or fervor of expression, or ownership of the technological means of dissemination. Yet nothing in this Court’s opinions supports such a confining approach to the scope of Press Clause protection. 6 Indeed, the Court has plainly intimated the contrary view:

“Freedom o the press is a ‘fundamental personal right’ which ‘is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets . . .. The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.’ . . . The informative function asserted by representatives of the organized press . . . is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists. Almost any author may quite accurately assert that he is contributing to the flow of information to the public . . ..” Branzburg v. Hayes, 408 U.S. 665, 704-705, 92 S.Ct. 2646, 2668, 33 L.Ed.2d 626 (1972), quoting Lovell v. Griffin, supra, 303 U.S., at 450, 452, 58 S.Ct., at 668, 669.

The meaning of the Press Clause, as a provision separate and apart from the Speech Clause, is implicated only indirectly by this case. Yet Massachusetts’ position poses serious questions. The evolution of traditional newspapers into modern corporate conglomerates in which the daily dissemination of news by print is no longer the major part of the whole enterprise suggests the need for caution in limiting the First Amendment rights of corporations as such. Thus, the tentative probings of this brief inquiry are wholly consistent, I think, with the Court’s refusal to sustain § 8’s serious and potentially dangerous restriction on the freedom of political speech.

Because the First Amendment was meant to guarantee freedom to express and communicate ideas, I can see no difference between the right of those who seek to disseminate ideas by way of a newspaper and those who give lectures or speeches and seek to enlarge the audience by publication and wide dissemination. “The purpose of the Constitution was not to erect the press into a privileged institution but to protect all persons in their right to print what they will as well as to utter it. ‘ . . . the liberty of the press is no greater and no less . . .’ than the liberty of every citizen of the Republic.” Pennekamp v. Florida, 328 U.S. 331, 364, 66 S.Ct. 1029, 1046, 90 L.Ed. 1295 (1946)(Frankfurter, J., concurring).

In short, the First Amendment does not “belong” to any definable category of persons or entities: It belongs to all who exercise its freedoms.

The advent of the Internet, a hobbyist’s enterprise at the time of the opinion, has made these issues more difficult. But more than thirty years ago Chief Justice Burger articulated the essence of the same debate we are having today.


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