Jon Henke, via Twitter, expresses a view I used to hold but now think is pretty clearly erroneous:
Thought: There should be no difference between freedom of speech and freedom of press. It is not “special speech”. It’s just speech.
Since we now understand the phrase “freedom of speech” in the First Amendment to cover all manner of non-verbal expression, it may seem that the separate protection of the press is just anachronistic. But a quick survey of the history of both the First Amendment and other statutes meant to protect the broader concept of press freedom make clear that this is an error: In addition to protecting expression generally, we afford special protections to the gathering and dissemination of news—and rightly so.
First, a clarification that ideally wouldn’t be necessary but probably is: When I say that the “freedom of the press” goes beyond the freedom of speech or expression more generally, I don’t mean that these are special rights enjoyed by professional credentialed reporters or big newspaper concerns or anything like that. “The press” or “reporting” or “journalism” or whatever you care to call it is a function, not a profession. Constitutional rights don’t come with guild membership requirements: Especially in the Internet era, the “freedom of the press” is a freedom any citizen can exercise. Modern statutes that have proposed to extend protections for press freedom beyond the guarantees of the First Amendment now typically recognize this. So, for instance, a proposed federal shield law—which would grant the reporter/source relationship the same kind of privileged status as attorney/client, priest/confessioner, and spousal relationships—was crafted to cover anyone engaged in the gathering of news for publication, not just those who are journalists by vocation. That legislation would cover anyone engaged in “the regular gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.”
Shield laws are one example of the way “freedom of the press” can extend beyond the protection of expression: They go beyond barring government from prohibiting the publication of news, and seek to remove potential governmental obstacles to the gathering of news. And the First Amendment, too, has been found to protect news gathering in certain respects. In Richmond Newspapers v. Virginia, the Supreme Court held that the “amalgam” of the speech and press clauses of the First Amendment gave members of the public and press a presumptive (though by no means unlimited) right of access to criminal trials and other traditionally public proceedings. As a corollary of an undifferentiated right of personal expression, this is hard to make sense of. As a component of a protected activity or process especially concerned with keeping the public informed about the doings of government, however, it’s perfectly intelligible.
Turn to the strictly expressive part, then: Does anything fall out of “freedom of the press” that isn’t already subsumed under a general right to free speech? You don’t normally see courts making a distinction explicitly, but if you look at some of the hard cases where a right of expression needs to be balanced against other weighty rights or interests, you’ll find that speech associated with that press function is identified as the core of the expression protected by the First Amendment—unsurprising given that it’s a type of expression the Framers were clearly centrally concerned with in their writings about the importance of the right. In libel law, for instance, there’s a far higher bar for defamation suits brought by public figures than by ordinary private citizens. Perhaps most decisively, there’s a “newsworthiness” defense against tort actions for invasion of privacy even by non-public figures. In other words, speech that would normally be actionable becomes protected again when it concerns matters of “legitimate public interest.”
So that’s how the law works, but Jon’s claim is about how it should work. Certainly you can argue that distinctions like these create the very sort of situation the First Amendment is supposed to avoid, where judges are in the position of judging the social value of speech, and determining whether interest in some information is “legitimate” or merely prurient. And while that objection has some force, it’s not clear that the alternatives are any better. If you revoke the relevant exemptions, you’d almost certainly squelch speech vital for democratic self governance—the sort of speech that was manifestly the overriding motive for the First Amendment. If you apply them across the board—speech is speech is speech, and it always trumps—you probably have to gut privacy and defamation law, sacrificing ordinary people’s legitimate interest in their reputations with no obvious social benefit. What’s vital, I think, is to resist any attempt to make the protection afforded speech depend on its particular content—on the viewpoint either expressed or advanced in a given instance. But in a world where other authentic rights and values sometimes bump up against speech, it becomes necessary to determine, for broad categories of speech, what’s at the core and what’s at the periphery.
The sound core intuition Jon’s working on is that, despite what they might think, people with official-looking PRESS badges tucked into their fedora bands are not a special class of human entitled to extra rights. The mistake is the conflation of members of the press with speech that serves the press function. Press people are on all fours with anyone who can register a Blogspot account. Press speech, the Framers understood, is a structural necessity in a free society of self-governing citizens. This, and not some generalized conviction that every eruption of the human spirit in language is a unique and precious flower, is the reason they gave it such tremendous priority over all but the most compelling interests. So yes, all speech ought to enjoy extraordinarily high levels of protection—more across the board, please!—but when it comes down to making the hard trade-offs, I’m glad the courts do see certain kinds as “special speech.”