The Media

• Pages: 219-235
• Author: Daniel A. Farber

219

Chapter 11

THE MEDIA

In Chapter 10, we saw how First Amendment doctrine deals

with certain classes of speakers: those having special connections

with the government. In this chapter, we turn to another class of

speakers: the media.

The most fundamental question is whether First Amendment

doctrine should explicitly distingui sh media from other speakers.

Arguments for special treatment can be made in either direction,

either for extra regulation or for greater constitutional protection. On

the one hand, be cause of their broad impact on the public, the mass

media may give a relatively small group of people leverage over

public opinion. Some believers in the self-governance model of the

First Amendment argue that government has an affirmative duty to

ensure that the media foster rather than undermine public

deliberation. On the other hand, because the media provide an

important channel o f comm unication, the media epitomize the

marketplace of ideas. Control over the media could give the

government leverage over public o pinion. Much o f this de bate h as

taken place regarding conventional print and broadcast media, but

today the flashpoint tends to be social media such as Facebook and

Twitter. The one point of agreement is that the media are a powerful

forum, a sort of focal point for First Amendment values.

Media law has also become a fla sh point fo r deba tes be tween

self-governance and marketplace theorists. A s elsewhere in First

Amendment law, the marketplace model is presently ascendant in

media law, but there are important countercurrents. Self-governance

advocates have not been without their victories. In this chapter, we

will consider how doctrine has evolved in two key areas: (a) conflicts

between the press and the criminal justice system (including media

access to sources of information); and (b) effort s to guarantee acces s

by speakers to media chan nels. We will then explore po ssible future

directions for media law as it confronts new technologies.

Lurking in the background is a question about the constitutional

text. The “press” does receive special mention in the First

Amendment, which might imply that it receives a different level of

constitutional protection. Also, the press can operate as a check on

government abuses—a sort of institutionalized whistle blower. Thus,

a strong argument can be made fo r special protectio n for the press.

But so far this argument has not prevailed. O pponents have argued

that it would be difficult to provide a workable definition of the press,

220

SPEECH IN SPECIAL SETTINGS

Pt. III

and that the Constitution should protect the street corner speaker

just as much as media institutions. Thus, the media tend not to

receive special constitutional protection.

As we saw in Chapter 5, the Court has generally taken this view

with re spect to defamation law, only rarely suggesting that media

defendants might enjoy greater protection than o thers. In this

chapter, we will see a similar pattern, in which the media are rarely

given a preferred position. Only one clear safeguard has been created

for the press, and that is a negative one: the press is subject to the

same regulations as other busine sses but may not be singled out for

special burdens. For example, it is constitutional to subject the media

to the normal labor and antitrust laws, but unconstitutional to

impose a “pape r and in k” tax solely on the press.

1

As we will see,

however, the Court has sometimes allowed special regulation of

certain media based on their distinctive physical or eco nomic

characteristics. Perhaps t he most pressing issue today is the extent

to which the Court will allow Congress to regulate emerging

communication technologies.

I. The Media and the Criminal Justice System

Criminal justice is both a core function of government and a core

interest of the press. Predictably, the two institutions’ perspectives

sometimes collide. Such collisions may occur when the press has

information from confidential sources that prosecutors would like to

obtain; when pretrial publicity thre atens the fairness of the

proceedings; or when me dia attacks on the j udicial system

undermine its integrity.

A. Protection of Sources

“Is this off the record?” is a question that everyone knows from

movies and television. Use of confidential sources may not be as

frequent in real life, but it sometimes does play an important role in

news gathering. For example, “Deep Throat” was the confidential

source who provide d crucial information to reporters about the

Watergate scandal. The identity of these sources would often be

useful to police and prosecutors, yet the prospect of disclosure could

cut off the flow of information to the press. How is t his tension to be

resolved?

In Branzburg v. Hayes,

2

the Court upheld the convictions of

three reporters fo r refusing to disclose confidential information to a

grand jury. In an opinion by Justice White, the Court declined to

grant reporters a special testimonial privilege. Justice White rejected

1

Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U. S.

575 (1983).

2

408 U.S. 665 (1972).