The First Amendment of the United States Constitution famously states: “Congress shall make no law … abridging the freedom of speech, or of the press.” Yet, a study conducted by legal scholars RonNell Andersen Jones and Sonja West raises concerns about the waning distinction between these two freedoms within U.S. Supreme Court jurisprudence. The study found that from 1970 to 1975, Supreme Court opinions mentioned the press in some 1,500 paragraphs, a number which had notably dwindled to fewer than 100 between 2015-2019.
The apparent sidelining of the press clause can largely be attributed to the broad interpretation of freedom of speech protections applicable to all communicators, as explained by veteran First Amendment litigator Floyd Abrams in an interview with SCOTUSblog. The convergence of press and speech rights has, in many instances, meant that journalists receive the same legal protections as all other speakers, leaving no judicial space to delineate unique rights for the press.
Historical Supreme Court cases have reflected this blending. In New York Times v. Sullivan, the Court established the “actual malice” standard for defamation involving public figures without distinguishing between speech and press rights. Likewise, Chief Justice Warren Burger’s opinions in cases such as Miami Herald Pub. Co. v. Tornillo framed press freedoms in terms often reserved for compelled speech doctrine.
While the Court has offered specific protections in some instances, such as invalidating selective taxation against newspapers in Grosjean v. American Press Co. and Minneapolis Star v. Minnesota Comm’r, broader press rights, particularly in newsgathering activities, have seen limited advancement. Notable cases such as Branzburg v. Hayes and Zurcher v. Stanford Daily underscore the Court’s reluctance to provide the press with distinct exemptions from general legal requirements.
Recognizing the dwindling influence of the press clause, initiatives like the Press Clause Project seek to revitalize constitutional protections specific to journalists. Recommendations include reserved seating for the press in public trials and protections against removal from public gatherings. However, defining who qualifies as “press” in today’s digital age remains complex, as acknowledged by Dominic Coletti of the Foundation for Individual Rights and Expression.
As the press clause continues to languish in legal ambiguity, pressing questions remain about how—or if—it can be harmonized with evolving media landscapes to safeguard the integrity of journalism. To view the full discussion, see the original article on SCOTUSblog.