Whither Freedom of the Press?

• Author: Randall P. Bezanson
• Position: Professor of Law, The University of Iowa College of Law
• Pages: 1259-1274

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Whither Freedom of the Press?

Randall P. Bezanson

In Citizens United v. FEC, the Supreme Court noted that it has

“consistently rejected the proposition that the institutional press has any

constitutional privilege beyond that of other speakers.”1 In a very recent

article, Professor Eugene Volokh weighs in from an originalist perspective

on whether freedom of the press is institutional or technological.2 It is

technological, he says, and thus available to all forms of communication that

we might call “technologies,” which means everything.3 “[T]hroughout

American history,” he concludes, “the dominant understanding of the

‘freedom of the press’ has followed the press-as-technology model,” a view

that the Free Press Clause4 guarantees “equal treatment to [all] speakers

without regard to whether they are members of the press-as-industry.”5

The Supreme Court and Professor Volokh have thus reduced freedom

of the press to nothing, though I would have thought a pretty nettlesome

nothing.6 With one fell swoop, the slate was wiped clean of all the verbal

anguish we have suffered over the press, from the Sedition Acts to the era of

yellow journalism to progressive reforms and, yes, to the world of democracy

and elections. All the controversies about the press and its privileged role

turn out to have been self-indulgent arguments and disputes about political

preferences, not about the First Amendment. The privileges the press may

 David H. Vern on Professor of Law, The University of Iowa College of Law.

1. Citizens United v. FEC, 130 S. Ct. 876, 905 (2010) (quoting Austin v. Mich. Chamber

of Commerce, 494 U.S. 652, 691 (1990) (Scalia, J., dissenting), overruled by Citizens United, 130

S. Ct. 876) (internal quotation marks omitted).

2. Eugene Volokh, Freedom for the Press as an Industry, or for the Press as a Technology? From

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

3. See id. The terminology is a bit slippery. By “technology,” Volokh seems to mean the

technology of transmitting or distributing speech, excluding presumably unamplified ora l

communication. See id. at 462 n.10. Volokh focuses principally on the printing press as the

constitutionally intended technology—something like “press” means printing. For an

originalist, this presents problems downstream with respect to the telegraph, the phone, radio,

TV, and the internet, all of which Volokh assumes, without much more, to also constitute the

press as technology. However, I do not dwell on this in the present Essay.

4. U.S. CONST. amend. I.

5. Volokh, supra note 2, at 538–39.

6. See Citizens United, 130 S. Ct. at 905.

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enjoy are merely matters of legislative and administrative grace.7 There is no

press freedom because there is no press, constitutionally speaking.

All this, of course, is of a piece with our recent discovery that

corporations and other organizations have, from the very beginning, been

full-fledged First Amendment speakers entitled to the same rights and

privileges bestowed on the common person, the individual. The ink that has

been wasted and the legislative struggles that have been waged about the

rights and roles of corporations have been for naught—silly and

misinformed gaggles and, more important, wrongheaded conceits that

creations of law do not always emerge from the legal womb fully entitled and

free just like babies.

In an odd twist, Volokh’s argument is that because corporations now

have full speech rights, the press doesn’t need anything more. This

notwithstanding Volokh’s argument and the Supreme Court’s rationale that

without full corporate speech rights, media corporations, including the

press, would not be fully protected. This is a perfectly circular argument that

elides the possibility that press corporations can be distinguished from other

corporations in purpose or function or form. CBS News is not the same,

constitutionally speaking, as Dr. Phil or Amazon or a porn site or, I dare say,

an independent political advertisement. In the absence of any willingness to

make distinctions, the “press,” in its corporate form at least, disappears in

the barren domain of speech as technology.

The First Amendment, the Supreme Court tells us, protects speech, not

speakers.8 Speech is speech, and that is that, without any preoccupation with

authors, intentions, or origins. Liberty is not part of this picture either,

except the liberty of the word or image itself. Nor is purpose and function.

It’s all babble—protected babble, but babble nonetheless—including the

press.

The Supreme Court’s Citizens United decision, bolstered by Professor

Volokh’s originalist view, can no longer be said to be an emerging

revolution, but an accomplished one. However, I believe both the Court and

Volokh are wrong, historically and constitutionally. They ask the wrong

question: Is “press” institutional, or is it technological? And they offer the

wrong answer: “Press” is just technology. But it may be neither or both. And

the press may enjoy both speech and press rights. Perhaps most important,

in today’s technology-driven cacophony of speech, the press’s editorial

freedom and its independence from the government are, if anything, more

critical than they were in the old days of print and broadcast technology.

7. See id.

8. See id. at 905–06.