The Independent Significance of the Press Clause Under Existing Law

Abstract:     
The paper argues that only the assumption that the Press Clause has a meaning independent of the Speech Clause could explain either different First Amendment treatment of individuals and the press or different First Amendment treatment of the press and other businesses. Suggesting an interpretation of the Press Clause as protecting the institutional integrity of the Fourth Estate, it then examines fifteen areas of law and finds that in each area the press receives different treatment - precisely the different treatment that the Fourth Estate theory predicts. Moreover, no area of law is found to be inconsistent with this independent meaning thesis. In the case of many of the differences observed, the holdings are part of constitutional law. In others, differences are statutorily based, but it is argued that in most of these a court would, if necessary, almost surely invoke the First Amendment to overturn any legislative attempt to treat the press the same as current law treats other businesses. Finally, the paper argues that the admitted controversial nature of defining the press for constitutional purposes (it is done routinely for legislative purposes) does not provide a good reason to avoid explicit recognition of the significance of the clause and that to do so provides important theoretical and practical benefits.

Keywords: communications law, mass media law, constitutional law, press clause, speech clause, Fourth Estate theory, independent meaning thesis

Accepted Paper Series