December 28, 2011
Who is 'The Press' in the First Amendment?By Dan Smyth
What does "the press" mean in the First Amendment's guarantee "Congress shall make no law...abridging the freedom of...the press"? The Mainstream Media or collection of reputable Internet, print, TV, and radio journalists, right? Bloggers, too, if you're feeling generous?
Sorry, brah! In his landmark new article on the press clause's original meaning titled "'The Freedom of...the Press,' From 1791 to 1868 to Now- Freedom for the Press as an Industry, or the Press as a Technology," UCLA law professor Eugene Volokh argues the Founders meant the press clause's "the press" to be the printing press (a printing technology) and any future communication technology. Crazy, right? So the Founders really meant something more like "freedom of...the printing press" or "freedom in the use of the press"?
In a jump-kick to "the press-as-journalists"'s face, Volokh notes Samuel Johnson's A Dictionary of the English Language (1755), the most widely used dictionary at the ratification's time, gave no definition of "press" in terms of today's common understanding of "the press" as a collection of journalists but did define "press" as "[t]he instrument by which books are printed." Volokoh mentions that, according to the Oxford English Dictionary, a definition of "the press" as a collection of literature ("[n]ewspapers, journals, and periodical literature collectively") emerged in the English language in the late 1700s and early 1800s. However, before and at the Founding, the Founders did not use this "press" definition when discussing press freedom.
Volokh got me thinking: Scanning Johnson's dictionary, I discovered Johnson had no entry for "media" but did define the following words:
If the Founders wanted to protect in particular who today we call media, reporters, etc. with "freedom of...the press," then surely the Founders could have written, for example, "freedom of...journalists" or "freedom of...newsmongers."
Volokh describes how, with no significant exceptions, prominent writers the Founders often cited, including William Blackstone, Jean-Louis De Lolme, and George Tucker, connected press freedom with the right of every "freeman," "citizen," or "individual" to "write," "print," or "publish" his or her thoughts. This fact implies the Founders didn't intend the press clause to protect the existing or future collection of "newsmongers" per se but rather to recognize the right of any person (or "freeman") to use printing presses (Until 1694, England imposed licenses on publications, which the Founders abhorred). James Madison's following first draft of the Bill of Rights' speech/press clauses highlights this point: "The people [emphasis added] shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable." According to Johnson's dictionary, "people" had such definitions as "a nation," "men, or per[s]ons in general," and "the commonality."
Volokh provides much more evidence for the press clause's "the press" being the printing press, particularly his evaluations of U.S. court cases from the Founding to 2011 that demonstrate judges have consistently interpreted the press clause as protecting any individuals who use the printing press, including newspaper advertisers and authors of letters to the editor, pamphlets, and books. Volokh describes how it was only the 1970s when some lower courts began interpreting the press clause's "the press" to be a collection of journalists and not the printing press as a technology.
My only disappointment with Volokh's article is his insufficient explanation for how constitutional law could, in the press clause's original meaning, interpret "the press" as including future communication technologies. Volokh touches the issue a few times but leaves much to be desired. For instance, Volokh's footnote 9, in describing what may qualify as equivalents of the Founders' printing press and why constitutional law should accept equivalents, says the following:
[Constitutional law should accept any]...communication technology that today serves the role the printing press did in the 1700s...The printing press itself was understood during the Framing era as a technological innovation, and rights were understood as being adaptable to technological innovations.
I suspect the answer for how the press clause's "the press" includes future communication technologies lies in part in the original definitions of "write" and "publish," the rights to which, in the Founders' understanding, made "freedom of...the press" essential. According to Johnson's dictionary, "write" had such definitions as "to perform the art of writing" and "to compo[s]e" while "publish" had such far-reaching definitions as "to di[s]cover to mankind; to make generally and openly known; to proclaim; to divulge." Thus congressional interference, whether it be licensing, content regulations, or taxes, with any communication instrument that abridges a person's rights "to compose" or "to proclaim" thoughts would violate the Founders' purpose of having "freedom of...the press." Today, communication instruments obviously include TV, radio, YouTube, Facebook, Twitter, blogs, etc.
Volokh's "counter-cultural" vision of the press clause's meaning is a liberating view of who could be journalists, media, members of the press, newsmongers, the reporter collective, etc. Am I media with this blog? New York Times and other media elites might sneer at such a possibility and can define media as they choose: Just don't mess with my "press"!
Dan Smyth is a technical writer in Rockville, MD and blogs at danielsmyth.org.