33 Pages Posted: 23 Dec 2005
Date Written: December 20, 2005
This paper, a contribution to a symposium on blogs and the law, examines the legal and constitutional status of blogs. Specifically, it offers three ways of looking at the relationship between blogs and the Press Clause - and, not incidentally, of looking at the Press Clause itself.
First, drawing on recent historical work, I suggest that we might view the Press Clause through either the free press or open press models that historically have applied to that provision. Viewing the Press Clause through the open press model makes a home for blogs in the Press Clause, but dilutes the content of the rights that might be available, for blogs or anyone else, under the Press Clause. Second, I suggest that we might view the Press Clause from a functional perspective, protecting those activities that are at the heart of what we consider to be the social value of journalism. This approach does manage to give some content to the press right, and to extend it to journalists working in the old and new media alike; but it fails to fully capture the qualities that we value in either the established press or the blogosphere.
Finally, I argue that we might view the Press Clause specifically, and the First Amendment generally, in institutional terms, identifying those speech institutions that contribute in unique and important ways to public discourse and granting them considerable autonomy to act according to the norms and practices that define and give value to each First Amendment institution. Under this approach, both the established news media and the blogosphere may find substantial protection under the Press Clause, although the content of the rights available to each institution will be different, based on the distinct nature of each institution. I argue that this approach, although in some ways it may appear to be the most radical of the three visions of the Press Clause I offer, is both normatively attractive and closer to current First Amendment doctrine than one might assume. Ultimately, although my conclusions differ significantly from his, I suggest that there may yet be life in the arguments made by Justice Stewart in his famous article on the Press Clause.
Keywords: press, press clause, first amendment, first amendment institutions, institutional first amendment, branzburg, blogs, blogosphere, open press, free press
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