The Stealth Press Clause

Abstract

When it comes to the cases that most affect the press, the Supreme Court seems to be taking a one-for-all-and-all-for-one stance. The reasons for this approach are varied. One suggestion is that the Court is adopting a reading of the Press Clause that protects the technology of mass communication and not particular speakers. Another sees it as in keeping with a view of the Press Clause that simply protects an individual right for everyone — not just a select group — to publish his or her speech. A third view is that it is a practical necessity to lump all speakers together in order to avoid a messy definitional problem of who does and who does not receive certain rights or protections. In this piece, however, I pause to push back on the conventional wisdom that the Court actually has refused to view the press as constitutionally special. Contrary to what we have been told, I contend the Supreme Court has indeed recognized the press as constitutionally unique from nonpress speakers. The justices have done so implicitly and often in dicta, but nonetheless they have continually and repeatedly treated the press differently. While rarely acknowledged explicitly, this “Stealth Press Clause” has been hard at work carving out special protections for the press, guiding the Court’s analysis and offering valuable insights into how we should view the contributions of the press.

Keywords: freedom of the press, Press Clause, constitutional law, First Amendment, taxation, prior restraint, defamation, Supreme Court, bloggers, internet

JEL Classification: k19