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Randall P. Bezanson, Whither Freedom of the Press?, Iowa L. Rev.  (forthcoming), available at SSRN.

Randy Bezanson’s recent short piece, Whither Freedom of the Press?, is an instructive example of how to get around an obstacle—two obstacles, really. The first is the Supreme Court’s opinion in Citizens United v. FEC, 130 S. Ct. 876 (2010). In the course of striking down a law prohibiting the direct use of corporate or union treasury funds for electioneering communications, the Court stated that “the institutional press has [no] constitutional privilege beyond that of other speakers.”

The second obstacle is actually more formidable. In a recent article in the University of Pennslyvania Law Review, Freedom of the Press as an Industry, or for the Press as a Technology?: From the Framing to Today, Eugene Volokh takes on the view of some writers, including Justice Stevens in his dissent in Citizens United, that the Press Clause of the First Amendment provides some form of protection to the press as an “industry” or institution. Volokh argues that the Press Clause protects the press only “as a technology”—that it secures only “the right of every person to use communications technology,” and grants no special privileges to the professional or institutional press as such. Skillfully marshaling extensive historical sources, Volokh concludes that the evidence “point[s] powerfully toward the press-as-technology reading” of the Press Clause, “under which all users of mass communications technologies have the same freedom of the press” and journalists qua journalists have no unique privileges.

Volokh closes in a quietly brutal fashion. He acknowledges that “the Supreme Court has never limited itself to analyzing constitutional provisions based solely on historical sources,” thus leaving open the possibility of an institutional reading of the Press Clause. His research “simply” shows, he adds, that “an argument for a press-as-industry interpretation of the Free Press Clause must rely on something other than original meaning, text, purpose, tradition, or precedent.” Which is to say, virtually every standard interpretive source.

What do you do if, like Bezanson, you favor a different reading of the Press Clause, but you think Volokh has done a fair job “when judged by the spare and spartan doctrine of textualism and originalism?” What do you do when the biggest tree in the forest stands directly in your way and you are armed only with a knife? There are two basic options: move around it, or dig deep enough underneath it to bring the whole thing down. Bezanson’s article is a nice illustration of both methods. Whether he succeeds wholly in getting around his obstacle or not, this short piece is a pleasure to read just for its forensics.

The first lesson Bezanson teaches us is to go after the weakest link. In this case, that is Citizens United itself. As he notes, Justice Kennedy’s treatment of the press in his opinion is characteristically “offhanded.” Kennedy cites many cases concluding that the First Amendment rejects distinctions based on a speaker’s identity, and a smaller number of cases suggesting that the press is entitled to no special constitutional privileges. But he ignores many decisions and statutes treating the press differently, such as “exemptions from taxation and regulation, . . . differential postal rates, sales and use tax exemptions, and media exemptions under the campaign laws themselves.” Either these laws are all unconstitutional, or “the press guarantee means something different from the speech guarantee, which the Court denies.” Bezanson concludes that Kennedy’s broad statements are poorly grounded and that Citizens United ultimately says “nothing at all significant or important or even controversial about freedom of the press.”

This leaves Bezanson in a better position to take on Volokh himself. And where better to begin with the Press Clause itself? He makes the obvious point that it is “textually awkward” to simply read the Press Clause “out of the First Amendment.” The reader is primed to believe that it must mean something, and something non-trivial at that. This shifts the burden on Volokh.

Volokh has an answer, of course: the Press Clause simply means that all speakers, whether they belong to the institutional press or not, are entitled to use technologies of mass communication. In Bezanson’s view, Volokh presents a false dichotomy, under which the “press” either refers to something “institutional” or something “technological.” But “no legal scholar who has examined the ‘press’ question has seriously entertained the sparse and barren meanings” Volokh presents as the only alternatives. Rather, “the meaning and role and rights of the press under the First Amendment are complex, culturally and technologically situational, functional, and broadly historical questions.” Volokh’s rejection of this admittedly vague description is thus implicitly treated as a failure to think deeply and maturely about the issue: “As an originalist Professor Volokh will have none of that.”  What scholar wants to deny the capacity to think in “complex” ways about a deep social and historical question?

Having hinted at the insufficiency of Volokh’s views and the incompleteness of Kennedy’s broad and unhelpful dicta about the Press Clause, Bezanson is in a better position to present his alternative vision. For Bezanson, a raft of excellent historical scholarship demonstrates that the Press Clause involved more than technology. Historically, it is closely linked to “our constitutional conceptions of freedom and democratic self-government.” The Framers believed, in the words of Press Clause scholar David Anderson, that “freedom of the press was inextricably related to the new republican form of government and would have to be protected if their vision of government by the people was to succeed.” Bezanson adds that his point “is not to establish that the Court or Professor Volokh is wrong,” but “to emphasize that there is a rich scholarship on the questions of the press’s meaning and rights that deserves attention and that a common thread in the scholarship is attention to purpose and function in defining and protecting the press.” In effect, he is saying to Volokh, you can have your historical evidence, but you’ve missed something deeper here. Of course, whether this scholarship is successful as a historical matter is precisely the point of Volokh’s article. But Bezanson treats the very existence of competing scholarship as evidence that something is missing from Volokh’s argument.

Having argued that there is some basis for differential treatment of the press, Bezanson then turns from history to policy, asking whether there are good justifications for a “constitutionally distinct press freedom.” This allows him to spend the rest of the piece side-stepping Volokh’s historical evidence and presenting a vision of the Press Clause itself, until we almost forget that Volokh’s alternative reading exists. Bezanson does a fine job presenting that vision, which distills years of his own work and that of other scholars.

For Bezanson, the press’s relationship to self-government poses “distinct dangers of compromising the press’ independence.” That independence turns on “the nature of the expressive and communicative decisions the press makes”—on the professionalized “journalistic editorial processes and judgments” that are consistent with “the assumptions of truth-seeking and public information and opinion upon which our democracy functions.” Those specialized functions, and their contribution to democracy, present “distinct freedom of the press questions, not just freedom of speech questions.” Finally, he argues that a distinct element of the press’s importance to public discourse is its independence from government. But government speech doctrine suggests that the government can speak as it wishes, including speaking as “the press.” Since Bezanson has already posited the importance of press independence, this allows him to argue that whatever government may do by way of aping the press, there must be some different institution called “the press” that remains constitutionally distinct from the government. That is true even in a world of shifting technology, in which millions have access to the technology of mass communication. Amidst this “cacophony” of voices, Bezanson argues, we need something more. We need a press that serves as “an essential voice with a purpose and function borne of independence and the needs of democratic self-government,” one characterized by press values of “disinterestedness and devotion to the unreachable, yet noble, ideal of truth.” Nothing less will do for a functioning democracy.

This is all skillfully accomplished. By linking Volokh to Citizens United, Bezanson can attack Volokh indirectly by criticizing Justice Kennedy’s typically broad statements. Rather than go after Volokh’s history directly, his summary of the competing scholarship allows defenders of an institutional version of the Press Clause to avoid feeling fatally undercut by Volokh’s evidence. By shifting his ground from history to policy reasons for a functionally oriented version of press freedom, he moves the discussion to safer ground. And he deploys one last technique: the sacrifice play. Many scholars of press freedom have argued that it includes some positive rights, especially a right to engage in newsgathering. Bezanson writes that he has “long been skeptical about many of these press claims,” but that they “do not lie at the center of things.” By throwing overboard claims for newsgathering protection or the protection of confidential sources, he leaves us with a diminished “functional” press, but avoids the difficulty of swimming against a stream of constitutional doctrine that generally disfavors positive privileges, let alone institutional privileges.

If this all sounds like damning with faint praise, it’s not. Bezanson’s article scores some nice points. History is painting a picture, not doing a sum, and even a sound use of originalism that neglects serious historical work in this area leaves something to be desired. It’s discomfiting, at least, to read an 80-page treatment of the historical meaning of the Press Clause that doesn’t mention the work of Paul Starr, William Siebert, Robert Martin, Anuj Desai, and Leonard Levy (cited once but peripherally in Volokh’s paper), among others, that doesn’t mention early postal subsidies for newspapers, that doesn’t fully grapple with the early development of competing themes of “free press” and “open press,” and so on. Volokh’s article is good as originalism but incomplete as history. There is much more room for Bezanson’s argument for a functional or institutional component of the Press Clause than Volokh’s dismissive conclusion implies. Although I am more sympathetic than Bezanson to the possibility of press rights relating to newsgathering, he does a fine job in a short space of presenting compelling arguments for his vision of the Press Clause.

But it is his forensics I find especially fascinating. Volokh’s superb article and Citizens United both pose serious challenges to defenders of institutional press freedom. By ridiculing the opinion and mostly leaving  Volokh’s article untouched while working around it, Bezanson gives us an artful example of lawyerly argument as jiu-jitsu.

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Cite as: Paul Horwitz, Defending Freedom of the Press as an Institutional Guarantee: A Guide in Dealing With Historical and Jurisprudential Obstacle Courses, JOTWELL (March 30, 2012) (reviewing Randall P. Bezanson, Whither Freedom of the Press?, Iowa L. Rev.  (forthcoming), available at SSRN),