Freedom of the Press for All?

Familiarity can breed contempt, and also boredom and neglect.  Take freedom of the press.  The phrase is known by all, but to what purpose?

The owners of the New York Times and the Washington Post certainly know what freedom of the press means.  More importantly, they know what they want us to believe.  In their lèse-majesté world, "the press" spoken of in the First Amendment is the credentialed, organized, established press.  Only this press is afforded the superior First Amendment protections in the Constitution. 

Or so they would have us believe. 

For the most part, in the popular imagination, the organized press is winning this battle of interpretation.  To prove it, ask yourself: are bloggers, wearing pajamas, "the press"?  Whatever your politics, are rogue, disruptive individuals like James O'Keefe, who go undercover in the manner made famous by 60 Minutes, also "the press"? 

Or, even more pointedly, in a case currently being argued in the Southern District of New York, when the CIA discloses information to "trusted reporters" at the Washington Post, the Wall Street Journal, and the New York Times, is the CIA then obligated to release that same information to an "independent" unaffiliated citizen-journalist?  The CIA says no.  Judge Colleen McMahon, to her credit, has initially rejected the CIA argument.

Is this privileged, self-serving view of the Press Clause legally correct?  What if freedom of the press means an actual, you know, press, as in printing press?

First Amendment scholar Eugene Volokh has comprehensively surveyed these two alternative meanings.  His conclusion: legally speaking, it is no contest, and decisively consistent across time.  Freedom of the press protects all users of the printing press.  The protection attaches to the technology.  There is no special protection enshrined in the Constitution for the press as a profession.

Freedom of the press "secur[es] a right of every person to use communications technology, not just a right belonging to members of the publishing industry."

Even more surprising, this position is controlling in Supreme Court opinions.

As summarized by Professor Volokh:

Throughout that time [from 1931 to the present], it turns out, the press-as-technology view has been dominant, and it continues to be dominant today.  Many Supreme Court cases have officially endorsed this view.  No Supreme Court case has rejected this view (though some cases have suggested the question remains open).

That is not to say the organized press organs have abandoned their cause.  On occasion, they have received a receptive hearing, most disturbingly garnering four votes in dissent in the case of Citizens United v. FEC, asserting that "one type of corporation, those that are part of the press, might be able to claim special First Amendment status."  It is the dissenting words of Justice Stewart, sounding from a bygone era, that represent the fondest hope of established media.  Said Justice Stewart, "The primary purpose of the constitutional guarantee of free press was ... to create a fourth institution outside the Government as an additional check on the three official branches."

Though the constitutional argument is seemingly, and hopefully, settled, most of us are not lawyers, and increasingly, it does not matter. 

What does matter is that the organized media club perceives itself as specially protected.  It seeks special privileges.  It awards itself special honors.  It insists on its moral superiority.  And it certainly behaves as though freedom of the press uniquely meant freedom of the institutional press.

Here is the real fight, and it is not one properly left to well paid lawyers in First Amendment litigation.  At issue is the public understanding of the press in the modern internet era.  Will we as citizens accede to this legal wrong?  Will we continue to accord the established press the privilege and respect that it would have us believe, falsely, resides in the First Amendment?

There is a term for such self-deception, developed by a psychology and cognitive science professor at Yale, Tamar Gendler.  In layman's terms, an alief is a belief that we know to be wrong but nonetheless accept as true and, more to the point, act upon as true.  In politics, it is the use of dehumanizing language and imagery to undermine an opponent or class of individuals.  The invented symbol becomes reality.  In psychology, an experiment has people label a bottle of plain water as poison.  The self-made label alone makes them averse to drinking a liquid they know to be harmless.  More vividly, people can form household flour into the shape and color of poop, and it becomes immediately less desirable.

As applied to the press, the alief is that the organized press holds a special, constitutionally ratified higher status in our society.  It is an alief closely aligned with another modern affliction of credentialism.  Wear the label of a first-rate institution, and forever after, you will be accorded the respect and status of an elite.

In part, the elite status of the organized media is collapsing of its own weight.  Newsweek sells for a dollar; the Washington Post becomes a vanity press funded by America's only quadzillionaire, Jeff Bezos; and CNN sees it audience decline by 30%.  Independent of economic trends, leading press personages figure largely in the recent wave of sexual harassment allegations and resignations.

Like sunlight, failure and disgrace are effective disinfectants.

The problem is that for all the well advertised decline in the mainstream media, they still are the primary conduit for shaping public opinion.  Nowhere is this truer than in matters of politics and public policy – and elections.

It is in this sense vital to appreciate that our freedom to disseminate ideas in written form inheres in the press itself, in the technology of the press.  It is the right of every single American.  The organized media have no place of honor here.

Muhammad Ali famously said, in what George Plimpton termed the shortest poem in the English language, "Me We."  The Me in publishing is morphing at astronomical rates to We.   In our daily lives, we are all become printing presses, on social media, Reddit threads, blog posts, video uploads, podcasts, comments, online content.

We are all protected.

The fight that needs to be won is the well earned push off the pedestal for organized media.  They are not our betters.  Increasingly, they are not our equals.

To fight organized media effectively, to break the alief of a privileged institutional press, the First Amendment must be framed visually.  We must see freedom of the press exactly for what it is: the right inhering in us all to make use of a press to disseminate ideas.  That includes the digital press in our hands, on our desks, or responding our voices.

For legal support, Professor Volokh is reassuring:

Supreme Court majority opinions have continued to provide equal treatment to speakers without regard to whether they are members of the press as industry...[T]he bulk of the precedents point towards equal treatment for all speakers – or at least to equal treatment for all who use mass communications technologies, whether or not they are members of the press as industry.

But it is the public understanding that needs to win out.  Our First Amendment right is the direct lineal descendant of Gutenberg's press.  With a mere screw and movable bar, the Gutenberg press was largely unchanged, though improved for mass output, over three hundred and fifty years, through to our founding.  Insert block type in a frame, cover with paper, press for the printed text.

That's it.  It is not complicated.  That is our First Amendment freedom of the press. 

Let's use it.

William Levin is a graduate of Yale Law School and an investment banker in New York.

Familiarity can breed contempt, and also boredom and neglect.  Take freedom of the press.  The phrase is known by all, but to what purpose?

The owners of the New York Times and the Washington Post certainly know what freedom of the press means.  More importantly, they know what they want us to believe.  In their lèse-majesté world, "the press" spoken of in the First Amendment is the credentialed, organized, established press.  Only this press is afforded the superior First Amendment protections in the Constitution. 

Or so they would have us believe. 

For the most part, in the popular imagination, the organized press is winning this battle of interpretation.  To prove it, ask yourself: are bloggers, wearing pajamas, "the press"?  Whatever your politics, are rogue, disruptive individuals like James O'Keefe, who go undercover in the manner made famous by 60 Minutes, also "the press"? 

Or, even more pointedly, in a case currently being argued in the Southern District of New York, when the CIA discloses information to "trusted reporters" at the Washington Post, the Wall Street Journal, and the New York Times, is the CIA then obligated to release that same information to an "independent" unaffiliated citizen-journalist?  The CIA says no.  Judge Colleen McMahon, to her credit, has initially rejected the CIA argument.

Is this privileged, self-serving view of the Press Clause legally correct?  What if freedom of the press means an actual, you know, press, as in printing press?

First Amendment scholar Eugene Volokh has comprehensively surveyed these two alternative meanings.  His conclusion: legally speaking, it is no contest, and decisively consistent across time.  Freedom of the press protects all users of the printing press.  The protection attaches to the technology.  There is no special protection enshrined in the Constitution for the press as a profession.

Freedom of the press "secur[es] a right of every person to use communications technology, not just a right belonging to members of the publishing industry."

Even more surprising, this position is controlling in Supreme Court opinions.

As summarized by Professor Volokh:

Throughout that time [from 1931 to the present], it turns out, the press-as-technology view has been dominant, and it continues to be dominant today.  Many Supreme Court cases have officially endorsed this view.  No Supreme Court case has rejected this view (though some cases have suggested the question remains open).

That is not to say the organized press organs have abandoned their cause.  On occasion, they have received a receptive hearing, most disturbingly garnering four votes in dissent in the case of Citizens United v. FEC, asserting that "one type of corporation, those that are part of the press, might be able to claim special First Amendment status."  It is the dissenting words of Justice Stewart, sounding from a bygone era, that represent the fondest hope of established media.  Said Justice Stewart, "The primary purpose of the constitutional guarantee of free press was ... to create a fourth institution outside the Government as an additional check on the three official branches."

Though the constitutional argument is seemingly, and hopefully, settled, most of us are not lawyers, and increasingly, it does not matter. 

What does matter is that the organized media club perceives itself as specially protected.  It seeks special privileges.  It awards itself special honors.  It insists on its moral superiority.  And it certainly behaves as though freedom of the press uniquely meant freedom of the institutional press.

Here is the real fight, and it is not one properly left to well paid lawyers in First Amendment litigation.  At issue is the public understanding of the press in the modern internet era.  Will we as citizens accede to this legal wrong?  Will we continue to accord the established press the privilege and respect that it would have us believe, falsely, resides in the First Amendment?

There is a term for such self-deception, developed by a psychology and cognitive science professor at Yale, Tamar Gendler.  In layman's terms, an alief is a belief that we know to be wrong but nonetheless accept as true and, more to the point, act upon as true.  In politics, it is the use of dehumanizing language and imagery to undermine an opponent or class of individuals.  The invented symbol becomes reality.  In psychology, an experiment has people label a bottle of plain water as poison.  The self-made label alone makes them averse to drinking a liquid they know to be harmless.  More vividly, people can form household flour into the shape and color of poop, and it becomes immediately less desirable.

As applied to the press, the alief is that the organized press holds a special, constitutionally ratified higher status in our society.  It is an alief closely aligned with another modern affliction of credentialism.  Wear the label of a first-rate institution, and forever after, you will be accorded the respect and status of an elite.

In part, the elite status of the organized media is collapsing of its own weight.  Newsweek sells for a dollar; the Washington Post becomes a vanity press funded by America's only quadzillionaire, Jeff Bezos; and CNN sees it audience decline by 30%.  Independent of economic trends, leading press personages figure largely in the recent wave of sexual harassment allegations and resignations.

Like sunlight, failure and disgrace are effective disinfectants.

The problem is that for all the well advertised decline in the mainstream media, they still are the primary conduit for shaping public opinion.  Nowhere is this truer than in matters of politics and public policy – and elections.

It is in this sense vital to appreciate that our freedom to disseminate ideas in written form inheres in the press itself, in the technology of the press.  It is the right of every single American.  The organized media have no place of honor here.

Muhammad Ali famously said, in what George Plimpton termed the shortest poem in the English language, "Me We."  The Me in publishing is morphing at astronomical rates to We.   In our daily lives, we are all become printing presses, on social media, Reddit threads, blog posts, video uploads, podcasts, comments, online content.

We are all protected.

The fight that needs to be won is the well earned push off the pedestal for organized media.  They are not our betters.  Increasingly, they are not our equals.

To fight organized media effectively, to break the alief of a privileged institutional press, the First Amendment must be framed visually.  We must see freedom of the press exactly for what it is: the right inhering in us all to make use of a press to disseminate ideas.  That includes the digital press in our hands, on our desks, or responding our voices.

For legal support, Professor Volokh is reassuring:

Supreme Court majority opinions have continued to provide equal treatment to speakers without regard to whether they are members of the press as industry...[T]he bulk of the precedents point towards equal treatment for all speakers – or at least to equal treatment for all who use mass communications technologies, whether or not they are members of the press as industry.

But it is the public understanding that needs to win out.  Our First Amendment right is the direct lineal descendant of Gutenberg's press.  With a mere screw and movable bar, the Gutenberg press was largely unchanged, though improved for mass output, over three hundred and fifty years, through to our founding.  Insert block type in a frame, cover with paper, press for the printed text.

That's it.  It is not complicated.  That is our First Amendment freedom of the press. 

Let's use it.

William Levin is a graduate of Yale Law School and an investment banker in New York.