Freedom for the Press as an Industry, or For the Press as a Technology? From the Framing to Today

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“[T]he
freedom . . . of the press” specially protects the press
as an industry
, which is to say newspapers, television
stations, and the like—so have argued some judges and scholars, such
as the Citizens United v. FEC dissenters

and Justices Stewart,
and Douglas. This argument is made
in many contexts: election-related speech, libel law, the journalist’s
privilege, access to government property, and more. Some lower
courts have indeed concluded that some First Amendment constitutional
protections apply only to the institutional press, and not to book authors,
political advertisers, writers of letters to the editor, professors
who post material on their websites, or people who are interviewed by
newspaper reporters.

Sometimes,
this argument is used to support weaker protection for non-institutional-press
speakers than is already given to institutional-press speakers.
At other times, it is used to support greater protection for institutional-press
speakers than they already get. The argument in the latter set
of cases is that the greater protection can be limited to institutional-press
speakers, and so will undermine rival government interests less than
if the greater protection were extended to all speakers.

But
other judges and scholars—including the Citizens United majority

and Justice Brennan—have argued that the
“freedom . . . of the press” does not protect the press-as-industry,
but rather protects everyone’s use of the printing press (and
its modern equivalents) as a technology.
People or organizations who occasionally rent the technology, for instance
by buying newspaper space, broadcast time, or the services of a printing
company, are just as protected as newspaper publishers or broadcasters.

Under
this approach, the First Amendment rights of the institutional press
and of other speakers rise and fall together.
Sometimes, this approach is used to support protection for non-institutional-press
speakers and to resist calls for lowering that protection below the
level offered to institutional-press speakers. At other times,
it is used to rebut demands for greater protection: Extending
such protection to all speakers, the argument goes, would excessively
undermine rival government interests—yet allowing such protection
only for the institutional press would improperly give the institutional
press special rights.

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