Journal of Free Speech Law: “The Press Clause: The Forgotten First Amendment,”

The article is here; the Introduction:

From the earliest days of our nation, there was a shared sense that freedom of the press was an essential precondition for life in a newly liberated country. James Madison’s first draft of what ultimately became the First Amendment reflected that sentiment. Introduced to the First Congress on June 8, 1789, it asserted that “[the] people shall not be deprived of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.”

The proposition that freedom of the press was an inviolable right was repeated in varying but wholly consistent language in the widest range of state constitutions of that time. Typical articulations were those of the Georgia Constitution of 1777 (declaring that the freedom of the press was to “remain inviolate forever”); the Massachusetts Constitution of 1780 (“the liberty of the press is essential to the security of freedom in a state: it ought not, therefore, to be restrained in this Commonwealth”); and the Pennsylvania Constitution of 1790 (“the printing presses shall be free to every person who undertakes to examine the proceedings of the legislature, or any part of government: And no law shall ever be made to restrain the right thereof”).

Ultimately, the language of the First Amendment was redrafted in its current form, with freedom of the press specifically identified as requiring constitutional protection. The American press has, as a result, received broad protections against prior and subsequent restraints developed through twentieth-century jurisprudence. Cases such as Bridges v. California, New York Times v. Sullivan, and New York Times v. United States provide legal protections for the press that are unheard of in other democratic nations. At the same time, however, the Supreme Court has yet to recognize unique protections for the press needed for journalists to best perform their role in a democratic society. This is particularly troubling at a time when journalism in the United States faces an array of unique and increasingly dire challenges.

These challenges come in various forms. Influential political figures wantonly place the press in their rhetorical crosshairs, decrying it, as a whole, as “enemies of the people.” Local governments utilize their powers to undermine newsrooms while the federal government jails journalists for protecting the confidentiality of their sources. Reporters covering political protests in both 2020 and 2024 have been assaulted, arrested, and confined. At a structural level, all but the most financially successful news outlets are hemorrhaging jobs as countless others shutter entirely. Over one-half of U.S. counties have no or limited access to local news, an acute symptom of the news industry’s looming economic insolvency. Adding profound insult to these injuries, public trust in news institutions currently sits at record lows.

These trends are troubling for reasons beyond the interests of those directly affected by them. The work that journalists do—most notably gathering and disseminating newsworthy information, acting as a check on the government, and convening the public square—is both reflective of, and integral to, functional self-government. The press matters, not just for those who carry out the work of journalism but for a democratic society that is necessarily reliant upon the press to inform its decision-making and to hold power to account.

In the fall of 2022, the Abrams Institute for Freedom of Expression at Yale Law School commenced an effort, funded by a grant from the Stanton Foundation, to explore whether the Press Clause could and should be read as a more diligent protector of press freedom (the “Project”). Adopting the title The Press Clause: The Forgotten First Amendment, the Project convened five workshops that brought legal scholars and practitioners from around the United States together to discuss topics at the intersection of journalism and the First Amendment.

Together, the workshops explored three major questions. First, what are the strongest constitutional arguments in support of interpreting the Press Clause so as to give it meaning independent of the Speech Clause? Second, what could an invigorated Press Clause actually provide journalists—that is, what rights and protections might it generate? And third, how should “the press” be defined for purposes of allocating those rights?

This Report builds on the ideas generated in the workshops to present the Project’s central arguments. It should be of interest to several constituencies, including scholars and policymakers developing related research agendas, media lawyers and other legal practitioners formulating litigation strategies that incorporate press rights, judges responsible for adjudicating such claims, and any person concerned with the decline of the press. From this introduction, the Report proceeds in six additional parts.

Part II details both the press’s importance and some of the legal, political, and economic challenges it faces. Part III provides an assessment of the constitutional status quo. While a number of Supreme Court decisions have protected press freedom, the Court has yet to provide the press with unique protection beyond that which all speakers who set forth their views in printed form receive. The Press Clause itself has effectively been treated as having no independent meaning or impact. Part IV presents a series of arguments against this status quo and in favor of an invigorated Press Clause. These arguments are overlapping and mutually reinforcing but, for ease of reference, are grouped into “historical,” “functional,” “precedential,” and “analogical” categories. With these arguments in hand, Part V discusses what a Press Clause jurisprudence could and should provide the press. Part VI addresses the issue of defining the press for purposes of partitioning the rights emanating from an active Press Clause. Part VII provides a brief conclusion.

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