Reinvigorating the Press Clause Through Negative Theory

Abstract

What work could an independent Press Clause do apart from the work already done by the Speech Clause? This question requires us to think about why and how the press is different from other speakers for First Amendment purposes—more specifically, what distinct functions does the press perform and what distinct vulnerabilities does the press possess?

In terms of distinct press functions, the press serves the public through its watchdog, educator, and proxy roles. These functions, in turn, explain the press’s distinct vulnerabilities to government retaliation: because the press’s primary purpose is to scrutinize the government for the public’s benefit, the government has long perceived the press as inherently threatening to its political self-interest. Moreover, changes in the technological and political environment have aggravated threats to journalists’ physical safety, intensifying their vulnerability still further.

Rooted in distrust of the government’s self-interested efforts to punish and thus silence the press, “negative” First Amendment theory has long offered an important tool for understanding the Press Clause. And negative theory is now more valuable an interpretive tool than ever, as press organizations and individual journalists are increasingly vulnerable to the government’s retaliation.

Among other things, negative theory can help us understand the Press Clause as providing an especially robust shield from the government’s retaliation—a shield different from that offered the public more generally by the Speech Clause precisely because of the press’s distinct functions and vulnerabilities. More specifically, directing judicial attention to the reasons to distrust the government’s adverse treatment of the press can reinvigorate Press Clause doctrine by informing courts’ choices of legal rules and by informing their application of those rules once chosen.

Keywords: press clause, first amendment, retaliation, negative theory, distrust

JEL Classification: K10, K30