Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Some have raised the question of whether the Free Speech Clause and the Free Press Clause are coextensive, with respect to protections for the media. A number of Supreme Court decisions considering the regulation of media outlets analyzed the relevant constitutional protections without significantly differentiating between the two clauses.1 In one 1978 ruling, the Court expressly considered whether the “institutional press” is entitled to greater freedom from governmental regulations or restrictions than are non-press individuals, groups, or associations. Justice Potter Stewart argued in a concurring opinion: “That the First Amendment speaks separately of freedom of speech and freedom of the press is no constitutional accident, but an acknowledgment of the critical role played by the press in American society. The Constitution requires sensitivity to that role, and to the special needs of the press in performing it effectively.” 2 But, in a plurality opinion, Chief Justice Warren Burger wrote: “The Court has not yet squarely resolved whether the Press Clause confers upon the ‘institutional press’ any freedom from government restraint not enjoyed by all others.” 3 The plurality ultimately concluded that the First Amendment did not grant media the privilege of special access to prisons.4
Several Supreme Court holdings firmly point to the conclusion that the Free Press Clause does not confer on the press the power to compel government to furnish information or otherwise give the press access to information that the public generally does not have.5 Nor, in many respects, is the press entitled to treatment different in kind from the treatment to which any other member of the public may be subjected.6 The Court has ruled that “[g]enerally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects.” 7 At the same time, the Court has recognized that laws targeting the press, or treating different subsets of media outlets differently, may sometimes violate the First Amendment.8 Further, it does seem clear that, to some extent, the press, because of its role in disseminating news and information, is entitled to heightened constitutional protections—that its role constitutionally entitles it to governmental “sensitivity,” to use Justice Potter Stewart’s word.9
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Footnotes
- 1
- See, e.g., Associated Press v. NLRB, 301 U.S. 103, 130 (1937) (ruling that applying an antitrust law to the Associated Press did not violate either the freedom of speech or of the press); see also Amdt1.7.10.2 Taxation of Media; Amdt1.7.10.3 Labor and Antitrust Regulation of Media.
- 2
- Houchins v. KQED, 438 U.S. 1, 17 (1978) (concurring opinion). Justice Potter Stewart initiated the debate in a speech, subsequently reprinted as Potter Stewart, Or of the Press, 26 Hastings L. J. 631 (1975). Other articles are cited in First National Bank of Boston v. Bellotti, 435 U.S. 765, 798 (1978) (Burger, C.J., concurring).
- 3
- Id. at 798.
- 4
- Houchins, 438 U.S. at 15–16.
- 5
- Id., and id. at 16 (Stewart, J., concurring); Saxbe v. Wash. Post, 417 U.S. 843 (1974); Pell v. Procunier, 417 U.S. 817 (1974); Nixon v. Warner Commc’ns, 435 U.S. 589 (1978). The trial access cases recognize a right of access of both public and press to trials. Richmond Newspapers v. Virginia, 448 U.S. 555 (1980); Globe Newspaper Co. v. Superior Ct., 457 U.S. 596 (1982).
- 6
- Branzburg v. Hayes, 408 U.S. 665 (1972) (grand jury testimony by newspaper reporter); Zurcher, 436 U.S. 547 (1978) (search of newspaper offices); Herbert v. Lando, 441 U.S. 153 (1979) (defamation by press); Cohen v. Cowles Media Co., 501 U.S. 663 (1991) (newspaper’s breach of promise of confidentiality).
- 7
- Cohen, 501 U.S. at 669.
- 8
- See, e.g., Grosjean v. Am. Press Co., 297 U.S. 233, 244 (1936) (holding that a tax focused exclusively on newspapers violated the freedom of the press); see also Amdt1.7.10.2 Taxation of Media.
- 9
- E.g., Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241 (1974); Landmark Commc’ns v. Virginia, 435 U.S. 829 (1978). See also Zurcher, 436 U.S. at 563–67 (1978), and id. at 568 (Powell, J., concurring); Branzburg, 408 U.S. 665, 709 (1972) (Powell, J., concurring). Several concurring opinions in Richmond Newspapers v. Virginia, 448 U.S. 555 (1980) imply recognition of some right of the press to gather information that apparently may not be wholly inhibited by nondiscriminatory constraints. Id. at 582–84 (Stevens, J.), 586 n.2 (Brennan, J.), 599 n.2 (Potter, J.). Yet the Court has also suggested that the press is pro tected in order to promote and to protect the exercise of free speech in society at large, including peoples’ interest in receiving information. E.g., Mills v. Alabama, 384 U.S. 214, 218–19 (1966); CBS v. FCC, 453 U.S. 367, 394–95 (1981).