Unradical: 'Freedom of the Press' as the Freedom of All To Use Mass Communications Technology

• Author: Eugene Volokh
• Position: Professor of Law, UCLA School of Law
• Pages: 1275-1282

1275

Unradical: “Freedom of the Press” as the

Freedom of All To Use Mass

Communications Technology

Eugene Volokh

I. TEXT, ORIGINAL MEANING, HISTORY, AND PRECEDENT

I’m delighted that Professor Bezanson has written a response to my

Freedom of the Press as an Industry, or for the Press as a Technology? From the

Framing to Today1—which I’ll call Industry or Technology for short—and it’s of

course always a pleasure to be said to have “written a very provocative,

indeed radical, article.”2 But I must regretfully decline the honor. Industry or

Technology is the opposite of radical: it doesn’t call for changing the law or

departing from tradition, but simply summarizes what American tradition

and American law have nearly unanimously said throughout our nation’s

history.

Industry or Technology considers what, to modern eyes, might be an

ambiguity in the phrase “freedom . . . of the press.” Does the phrase protect

the freedom of the press-as-industry—professional newspapers, magazines,

TV stations, and the like? Or does it protect the freedom to use the press-as-

technology, which is to say the printing press and its descendant mass

communications technologies, such as the Internet? (The article focuses on

these two alternatives both because they are the most plausible-seeming

alternative meanings of the constitutional text, and because they seem to be

what various Justices in both Citizens United and earlier cases identified as the

alternative meanings.3) The article concludes that throughout American

legal history, the “freedom of the press” referred to the freedom to use the

press-as-technology, and protected all users of such technology, whether

constant users or occasional ones.

And the evidence for this is not limited to the evidence relevant under

what Professor Bezanson calls “the spare and spartan doctrine of textualism

 Gary T. Schwartz Professor of Law, UCLA School of Law (volokh@law.ucla.edu).

1. Randall P. Bezanson, Whither Freedom of the Press?, 97 IOWA L. REV. 1259 (2012)

(responding to Eugene Volokh, Freedom for the Press as an Industry, or for the Press as a Technology?

From the Framing to Today, 160 U. PA. L. REV. 459 (2012)).

2. Id. at 1273.

3. See sources cited in Volokh, supra note 1, at 461–63 nn.3–10.