First Amendment: Speech Article 127 Harv. L. Rev. 2434

Press Exceptionalism

How to identify the press and its protections



The Occupy Wall Street movement was one of the largest grassroots political demonstrations in American history. The protests raised issues about government policies and social structures that sparked debate nationwide. Treatment of the demonstrators by public officials garnered scrutiny too, as did the tactics of the protestors, which some alleged included unlawful conduct.

Yet despite the high level of newsworthiness, many reporters who attempted to cover the protests faced significant roadblocks. Some were denied access to protest sites. Others were arrested, even when they could and did display press credentials. Airspace was blocked to prevent filming from news helicopters. This shabby treatment of journalists led to condemnation by press organizations and caused the United States’s ranking on the Reporters Without Borders’ Press Freedom Index to drop sharply, from twentieth to forty-seventh place.

The experiences of the reporters covering the Occupy protests reflect a broader reality about journalism: on a day-to-day basis, American journalists deal with legal uncertainties in the pursuit of news. There are difficulties of access to property (sometimes even public property), information, and government meetings. Journalists have uncertain protections against subpoenas and face frequent government demands that they testify about what they have learned while gathering news or that they reveal the identities of confidential sources. Reporters’ notes, photographs, emails, drafts, and video outtakes are potentially subject to search by law enforcement. Members of the press also face risks of criminal or tort liability if they engage in undercover reporting or reveal leaked information.

The underlying problem journalists face is that they are treated by the law as being no different than the subjects they are covering or, perhaps, mere curious bystanders. For constitutional purposes at least, it is entirely irrelevant to courts whether the speakers are members of the press or whether they are actively pursuing the news.

To be sure, once journalists publish or broadcast a story, their speech — like everyone’s speech — enjoys powerful First Amendment protections. Journalists are shielded — again, as is everyone — from prior restraints and content-based censorship of their messages. But when it comes to recognizing the special role of reporters as watchdogs and conduits of information for the citizenry as a whole, the Supreme Court has taken a hands-off approach.

One of the primary reasons for this failure to distinguish between constitutional protections for speech and the press is the problem of identification. In order to recognize unique press protections, the Court must figure out who or what the press is. The Occupy protests again illustrate the problem. Among the crowds at these demonstrations were many people utilizing their constitutional speech rights in ways that might seem “press-like.” An office worker on his way to lunch might see a traffic backup caused by the protestors and use his smartphone to tweet a message to his followers warning them to avoid the area. A cable comedy show might send a “correspondent” to the site to interview protestors and poke fun at some of the colorful participants. A newly graduated journalism student could decide to write an article about the protests with the hope of getting her first publication as a freelance writer. Then there are the bloggers. Some bloggers might post regularly about related issues and thus be attempting to gather information for their established readership whereas others might be offering unrelated content on an inconsistent basis to an unproven audience.

This all raises some important questions: Are these speakers the press? Are all of them or only some of them? And does the difficulty of answering this question confine us to a reading of the First Amendment that gives no meaning to the Press Clause that reaches beyond the Speech Clause?

This Article advances the principle of press exceptionalism — that there exist certain speakers who fulfill unique roles in our democracy. These press speakers devote time, resources, and expertise to the vital constitutional tasks of informing the public on newsworthy matters and providing a check on the government and the powerful. We must recognize these speakers in order to consider and potentially protect their specific needs. A continuing refusal to do so, moreover, comes with risks. These risks include not only a failure to fulfill the promises of the First Amendment, but also widespread societal costs arising out of reduced information flow and weakened government scrutiny.

The challenge, however, is that there are also numerous other speakers who use their speech rights in ways that at times appear to be “press-like.” I refer to these speakers as “occasional public commentators.” Aided increasingly by advances in communication technology, occasional public commentators share information and ideas about matters of public interest to a potentially broad audience in a timely manner — the very activities that were once considered the exclusive province of the press. Because viewing occasional public commentators as press speakers comes with constitutional costs, as I explained in a prior article, it is desirable to distinguish between the two groups. Therefore, I seek to establish a theoretically sound and practically workable methodology for identifying and distinguishing these two types of speakers.

Drawing on past attempts to identify the press and also using the Supreme Court’s recent discussion of who is and who is not a “minister” for the purposes of the Religion Clauses of the First Amendment as a model, I suggest that courts should take a holistic approach to finding the press. This approach could include relying on the cues of third parties and public institutions as proxies, as well as considering the speaker’s track record of publication and audience to determine which speakers are best fulfilling the press functions.

I develop these ideas in three parts. Part I explores who are members of the press for First Amendment purposes, what they do, and why it matters that they be identified. Part II then considers how changing technology has impacted the search for the press, concluding that, rather than defeating the effort, it has helped to focus it and to alleviate concerns of elitism. Finally, Part III combines past efforts by others to identify the press with insights from the Court’s recent discussion on how to determine who is a “minister” for the purposes of the Religion Clauses of the First Amendment to offer a usable beginning framework in our search for the press.