Freedom of Expression: Is There a Difference Between Speech and Press?
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Use of the single word “expression” to reach speech, press, petition, association, and the like, raises the question of whether the free speech clause and the free press clause are coextensive, or whether one reaches where the other does not. It has been much debated, for example, whether the “institutional press” is entitled to greater freedom from governmental regulations or restrictions than are non-press individuals, groups, or associations. Justice Stewart has argued: “That the First Amendment speaks separately of freedom of speech and freedom of the press is no constitutional accident, but an acknowledgment of the critical role played by the press in American society. The Constitution requires sensitivity to that role, and to the special needs of the press in performing it effectively.”412 But, as Chief Justice Burger wrote: “The Court has not yet squarely resolved whether the Press Clause confers upon the ‘institutional press’ any freedom from government restraint not enjoyed by all others.”413
Several Court holdings do firmly point to the conclusion that the press clause does not confer on the press the power to compel government to furnish information or otherwise give the press access to information that the public generally does not have.414 Nor, in many respects, is the press entitled to treatment different in kind from the treatment to which any other member of the public may be subjected.415 “Generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects.”416 Yet, it does seem clear that, to some extent, the press, because of its role in disseminating news and information, is entitled to deference that others are not entitled to—that its role constitutionally entitles it to governmental “sensitivity,” to use Justice Stewart’s word.417 What difference such “sensitivity” might make in deciding cases is difficult to say.
The most interesting possibility lies in the First Amendment protection of good-faith defamation.418 Justice Stewart argued that the Sullivan privilege is exclusively a free press right, denying that the “constitutional theory of free speech gives an individual any immunity from liability for libel or slander.”419 To be sure, in all the cases to date that the Supreme Court has resolved, the defendant has been, in some manner, of the press,420 but the Court’s decision in First National Bank of Boston v. Bellotti that corporations are entitled to assert First Amendment speech guarantees against federal and, through the Fourteenth Amendment, state, regulations causes the evaporation of the supposed “conﬂict” between speech clause protection of individuals only and press clause protection of press corporations as well as of press individuals.421 The issue, the Court wrote in Bellotti, was not what constitutional rights corporations have but whether the speech that is being restricted is protected by the First Amendment because of its societal significance. Because the speech in Bellotti concerned the enunciation of views on the conduct of governmental affairs, it was protected regardless of its source; while the First Amendment protects and fosters individual self-expression as a worthy goal, it also and as importantly affords the public access to discussion, debate, and the dissemination of information and ideas. Despite Bellotti’s emphasis upon the political nature of the contested speech, it is clear that the same principle—the right of the public to receive information—governs nonpolitical, corporate speech.422
With some qualifications, therefore, the speech and press clauses may be analyzed under an umbrella “expression” standard, with little, if any, hazard of missing significant doctrinal differences.
412 Houchins v. KQED, 438 U.S. 1, 17 (1978) (concurring opinion). Justice Stewart initiated the debate in a speech, subsequently reprinted as Stewart, Or of the Press, 26 HASTINGS L. J. 631 (1975). Other articles are cited in First National Bank of Boston v. Bellotti, 435 U.S. 765, 798 (1978) (Chief Justice Burger concurring).
413 435 U.S. at 798. The Chief Justice’s conclusion was that the institutional press had no special privilege as the press.
414 Houchins v. KQED, 438 U.S. 1 (1978), and id. at 16 (Justice Stewart concurring); Saxbe v. Washington Post, 417 U.S. 843 (1974); Pell v. Procunier, 417 U.S. 817 (1974); Nixon v. Warner Communications, 435 U.S. 589 (1978). The trial access cases, whatever they may precisely turn out to mean, recognize a right of access of both public and press to trials. Richmond Newspapers v. Virginia, 448 U.S. 555 (1980); Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982).
415 Branzburg v. Hayes, 408 U.S. 665 (1972) (grand jury testimony be newspaper reporter); Zurcher v. Stanford Daily, 436 U.S. 547 (1978) (search of newspaper offices); Herbert v. Lando, 441 U.S. 153 (1979) (defamation by press); Cohen v. Cowles Media Co., 501 U.S. 663 (1991) (newspaper’s breach of promise of confidentiality).
416 Cohen v. Cowles Media, 501 U.S. 663, 669 (1991).
417 E.g., Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974); Landmark Communications v. Virginia, 435 U.S. 829 (1978). See also Zurcher v. Stanford Daily, 436 U.S. 547, 563–67 (1978), and id. at 568 (Justice Powell concurring); Branzburg v. Hayes, 408 U.S. 665, 709 (1972) (Justice Powell concurring). Several concurring opinions in Richmond Newspapers v. Virginia, 448 U.S. (1980), imply recognition of some right of the press to gather information that apparently may not be wholly inhibited by nondiscriminatory constraints. Id. at 582–84 (Justice Stevens), 586 n.2 (Justice Brennan), 599 n.2 (Justice Stewart). Yet the Court has also suggested that the press is protected in order to promote and to protect the exercise of free speech in society at large, including peoples’ interest in receiving information. E.g., Mills v. Alabama, 384 U.S. 214, 218–19 (1966); CBS v. FCC, 453 U.S. 367, 394–95 (1981).
418 New York Times Co. v. Sullivan, 376 U.S. 254 (1964). See discussion of “Defamation,” infra.
419 Stewart, Or of the Press, 26 HASTINGS L. J. 631, 633–35 (1975).
420 In Hutchinson v. Proxmire, 443 U.S. 111, 133 n.16 (1979), the Court noted that it has never decided whether the Times standard applies to an individual defendant. Some think they discern in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), intimations of such leanings by the Court.
421 435 U.S. 765 (1978). The decision, addressing a question not previously confronted, was 5-to-4. Justice Rehnquist would have recognized no protected First Amendment rights of corporations because, as entities entirely the creation of state law, they were not to be accorded rights enjoyed by natural persons. Id. at 822. Justices White, Brennan, and Marshall thought the First Amendment implicated but not dispositive because of the state interests asserted. Id. at 802. Previous decisions recognizing corporate free speech had involved either press corporations, id. at 781–83; see also id. at 795 (Chief Justice Burger concurring), or corporations organized especially to promote the ideological and associational interests of their members. E.g., NAACP v. Button, 371 U.S. 415 (1963).
422 Commercial speech when engaged in by a corporation is subject to the same standards of protection as when natural persons engage in it. Consolidated Edison Co. v. PSC, 447 U.S. 530, 533–35 (1980). Nor does the status of a corporation as a government-regulated monopoly alter the treatment. Id. at 534 n.1; Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 566–68 (1980).